Georgia judge declines to freeze law to discipline prosecutors, suggesting she will reject challenge

DeKalb County District Attorney Sherry Boston speaks to reporters Friday, Sept. 22, 2023, outside the Fulton County Courthouse in Atlanta. Boston is one of four Georgia district attorneys who sued to overturn a law that lets a new commission to discipline and remove prosecutors. A Fulton County judge heard arguments over whether she should freeze the law. (AP Photo/Jeff Amy)

A judge is declining to freeze a new Georgia law creating a commission to discipline and remove state prosecutors, suggesting that she will ultimately rule against a lawsuit attacking the measure.

Fulton County Superior Court Judge Paige Reese Whitaker on Friday denied a request for an injunction by four district attorneys who have sued to overturn the commission, arguing that it unconstitutionally infringes on their power.

Some Republicans in Georgia want the new commission to discipline or remove Fulton County District Attorney Fani Willis for winning indictments of former President Donald Trump and 18 others. Willis is not one of the plaintiffs in the suit, although she opposed the law.

Georgia’s law is one in a series of attempts nationwide by Republicans to impose controls on prosecutors they don’t like. Republicans have inveighed against progressive prosecutors after some have brought fewer drug possession cases and sought shorter prison sentences, arguing Democrats are coddling criminals.

The commission has not begun operating yet, and its rules must be approved by the state Supreme Court. The plaintiffs argued prosecutors are already changing their behavior because they’re worried about getting investigated. But Whitaker said there’s no proof that anyone has been hurt by the law yet. Usually, only people who can prove an injury have standing to bring a lawsuit.

“Plaintiffs have not shown an injunction is a ‘vital necessity’ to preventing an immediate and irreparable injury,” the judge wrote.

More damaging to those who oppose the law is Whitaker’s finding that the suit is unlikely to succeed. She agreed with arguments put forward by state Attorney General Chris Carr’s office that the law doesn’t violate the state constitution.

“The court is persuaded that the Georgia Constitution expressly authorizes the General Assembly to impose duties on district attorneys and to create the grounds and processes to (discipline) or remove district attorneys who fail to meet those legal duties,” Whitaker wrote.

Plaintiffs said they are not giving up, still want a full trial, and will take their case to the state Supreme Court to protect prosecutorial independence.

“While we are disappointed that our motion was denied, this is just the beginning of what we expect will be a long legal battle,” DeKalb County District Attorney Sherry Boston, a Democrat and one of the plaintiffs, said in a statement. “We look forward to presenting our full arguments against this dangerous and undemocratic law.”

The plaintiffs say the law creates a bias in favor of prosecuting people, but Carr, a Republican, argued that if district attorneys don’t prosecute, they are violating their oaths of office.

“All Georgians deserve to be safe, and it’s a district attorney’s duty to enforce the law,” Carr said in a statement. “When elected prosecutors fail to do so, crime goes up and victims are denied justice.”

The law raises key questions about prosecutorial discretion, a bedrock of the American judicial system that allows prosecutors to decide what criminal charges to seek and how heavy of a sentence to pursue. The Georgia law states a prosecutor can’t refuse to prosecute whole categories of crimes, but must instead decide charges case by case. It applies both to district attorneys and elected solicitors general, who prosecute lower-level crimes in some Georgia counties.

The law set a deadline of Sunday for the commission to start taking complaints, but two members said in sworn statements earlier this month that it can’t start operations until the state Supreme Court approves proposed rules. That hasn’t happened yet.

Commissioners also noted that they voted on Sept. 15 not to investigate any acts that take place before the rules are approved. Because the law took effect July 1, both supporters and opponents had said prosecutors could be disciplined or removed for acts beginning then.