Georgia’s deputy attorney general violated the attorney-client privileges of multiple defendants in its case against 61 people accused of organizing a criminal conspiracy in their opposition to the “Cop City” police training center, according to a motion filed this week and the Guardian’s reporting.
The motion filed Monday petitions Fulton county superior court to dismiss the charges against three of the defendants who run a bail fund known as the Atlanta Solidarity Fund. It also aims to disqualify both the attorney general’s office and the Atlanta police from continuing to prosecute the case. Additionally, a hearing is sought on the matter.
If granted, this would either destroy the state’s historic bid to use Rico – a criminal conspiracy law – against dozens of people in connection with a protest movement, or at least create considerable delays in the case.
The Guardian independently and exclusively confirmed that deputy attorney general John Fowler did obtain emails between the fund’s members and their attorneys and share them, as the motion alleges – and that he did the same with the communications of other defendants in the case.
The act is a “brazen violation of the attorney-client privilege, the Sixth Amendment, and the Due Process Clause of the United States Constitutions, and the Georgia Constitutional right to counsel in all cases,” the fund’s attorneys write in the motion.
The Atlanta Solidarity Fund is one of nearly 100 similar organizations across the country that helps arrested protesters with bail, legal defense and related needs. It is central to the state’s indictment and its three members are mentioned more than 120 times in the 109-page document.
Police staged a Swat-style raid on the fund’s Atlanta house in May, seizing computers, cellphones and other devices. Speaking to the Guardian in June last year, Jocelyn Simonson, who analyzes bail funds in her new book, Radical Acts of Justice, said the arrests were “unprecedented”.
Don Samuel, the fund’s lead attorney, soon told Fowler that confidential, privileged emails and texts between the fund’s members and himself would be found on the devices, according to the motion.
He advised Fowler to “employ a filter team to ensure that privileged material is not reviewed by any prosecutorial agents, including lawyers, police, investigators, paralegals, or any other employee involved in any way in the case,” according to the motion.
Fowler said he would, and sent Samuel an email months later to tell the attorney he had downloaded all communications from the laptops and cellphones, “but would not review any of the material (or share any of the downloaded material with any other defense counsel, or any law enforcement officer or investigator), until a filter team scrubbed the material”, the motion says. A copy of the email is attached to the motion as an exhibit.
Samuel discovered only recently that Fowler had used a search warrant to obtain email records from Google for two of the three Atlanta Solidarity Fund defendants. The third – Marlon Kautz – did not have a Gmail account.
Fowler sent the search warrant to Google after he had agreed to filter out all privileged communication from the seized laptops and cellphones; nonetheless, the warrant did not mention the subject, and Fowler didn’t tell the superior court judge who signed off on the warrant, according to the motion.
“Included in the material sent by Google were detailed memoranda prepared by counsel for all three defendants, and communications from the defendants to counsel, all of which were privileged and clearly not open to inspection by the Assistant Attorneys General, their staff, or the Atlanta Police Investigators,” the motion asserts.
Fowler shared the emails with Atlanta police investigators and eventually included them with the five-plus terabytes of discovery, or evidence, forwarded to the 80-plus attorneys defending the dozens tied to Cop City. Notably, the deputy attorney general did the same thing with privileged communications of other defendants.
Atlanta police spokesperson Chata Spikes and the attorney general’s spokesperson Kara Murray did not respond to requests for comment.
It is not the first time Fowler’s integrity has been questioned in the case. He denied the existence of police messages on Signal in court, despite being presented, in a motion from defense attorneys, with evidence from the Guardian of law enforcement leadership ordering officers to download the encrypted phone app last year for that very purpose.
The Guardian independently confirmed that defense attorneys saw the Atlanta Solidarity Fund emails in discovery materials, and that some of their clients were subjected to the same transgression.
“This violation of privacy by the prosecutor throws the entire case into question. It’s not possible to have a fair trial,” Kautz said. “What it tells us is … the attorney general and police casually disregard fundamental rights in order to strengthen their own effort to crack down on dissent.”
