Of Counsel

Legal Notes on Georgia and The South

Today’s Nichols Update

Posted by Maggie on January 2, 2008

I feel like there should be one of those little tags at the beginning of a Nichols post like you see on television shows. You know, like, “Previously, on 24…” with some flashbacks. Previously in the Nichols case, the DA tried unsuccessfully to have Judge Fuller removed from the case. The motion filed by the DA was not done properly and promptly tossed out. Recently, the DA re-filed the correct motion, which is a Motion to Recuse filed before a Superior Court Judge.

Judge Fuller has refused the DA’s new motion on the grounds that it’s not timely and lacks a sufficient factual basis. Georgia Superior Court Rules require a filing within 5 days of the conduct leading to the recusal. They also require an affidavit showing a factual basis for prejudice against against the moving party or bias in favor of the non-moving party. Without seeing the supporting affidavit, it’s hard to judge the facts. But the motion is definitely not timely. The number of times this case has been delayed and the number of hearings they’ve had on the subject have given the DA more than ample time to consider a potential recusal motion. It could easily have been filed nearly a year ago, and just as easily several months ago. I don’t see how they’re going to get around that one.

One interesting point that I don’t know much about is the DA’s argument that Fuller recused himself when he had another Judge assigned to hear a contempt motion against GPDSC. That motion was withdrawn and the hearing never took place. I don’t know of any precedent on point (and again, I haven’t seen the DA’s motion) but I doubt any exists. If anyone knows otherwise, I’d be curious to see the citations.

My money says the DA will continue to be unsuccessful and that this is more of a PR move than anything else. It doesn’t make things look particularly bright in terms of moving the case forward and actually getting to trial.

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