The goal is to attack a movement

The goal is to attack a movement
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by Micah Herskind

The Georgia Attorney General’s office appears to have made a major blunder in the ongoing prosecution of 61 Stop Cop City activists—one that could potentially cost the state its case altogether.

According to a motion filed by attorneys for three defendants who run the nonprofit Atlanta Solidarity Fund (ASF), Georgia Deputy Attorney General John Fowler’s prosecutorial team has extensively and brazenly violated multiple defendants’ right to attorney-client privilege.

This motion is just the most recent episode in the RICO case that has been denounced by activists and legal experts as a political prosecution intended to punish and intimidate those in the Stop Cop City movement.

If you’ve heard anything about this case so far, you’re probably not surprised that the same prosecutor’s office that decided to argue that 61 people who were randomly arrested at various protests constitute a “criminal enterprise” has made another mistake. Even still, it’s a big deal.

It all began when the Atlanta Police Department (APD) and the Georgia Bureau of Investigations conducted a SWAT raid of the ASF members’ home early in the morning in May of last year, seizing computers, phones, and other devices. At the ASF members’ bond hearing following their arrest, even the judge was unimpressed with the evidence laid out by the prosecution, remarking that “There’s not a lot of meat on the bones.”

Following the raid, ASF’s attorney Don Samuels reached out to Fowler to inform him that the devices seized in the raid would inevitably contain information protected by attorney-client privilege, including legal memoranda and other privileged communications. 

In response, Fowler told Samuels that he would create a “filter team” to remove any privileged information before anyone involved in prosecuting the case reviewed the seized materials. Ten months later, the motion says, Fowler reiterated that a filter team would scrub any privileged material before Fowler’s team would begin its review. 

In the meantime, Fowler’s team also acquired emails for two ASF employees through a search warrant to Google, which also included privileged material.

Ultimately, despite Fowler’s multiple assurances, no filter team was employed at any point in this process, the motion asserts. Instead, the AG’s office shared the privileged information with APD investigators on the case and each defense team for the 61 defendants.

The AG office’s actions, the motion argues, represent a “brazen violation of the attorney-client privilege, the Sixth Amendment, and the Due Process Clause of the United States Constitution, and the Georgia Constitutional right to counsel in all cases.”

Reporting from The Guardian confirmed that the state’s breach of attorney-client privilege was not limited just to the ASF defendants, as attorneys for other defendants in the sweeping RICO prosecution verified that the state shared privileged information for their clients as well.

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Attorney-client privilege is a pillar of effective legal defense that allows defense attorneys to have robust discussions with their clients, explained Devin Franklin, Movement Policy Counsel for the Southern Center for Human Rights and former public defender. The alleged violation of attorney-client privilege represents a major breach that could completely derail the prosecution’s case.

“This is a huge deal, unquestionably,” said Franklin. “In my 12 years of practice, I’ve never had a set of circumstances where I’ve even had to give the state this kind of warning.” According to Franklin, it’s particularly concerning that privileged information would be shared so widely after the state was on notice that it needed to filter out the protected material.

Even before this latest motion, the case has already been plagued by delays and drama. As it turns out, prosecuting a case with very little actual evidence and a whole lot of defendants makes for a mess.

According to Xavier T. de Janon, an attorney representing one of the RICO defendants, this latest breach tracks with the prosecution’s generally sloppy approach to the case’s discovery thus far. The AG’s office has been slow and inconsistent in providing discovery to defendants, leading to a variety of motions by attorneys, including de Janon, objecting to the state’s failure to provide all discovery by the judge’s December 2023 deadline, among other problems.

“These are issues that are ongoing,” explained de Janon.

Attorneys Zohra Ahmed and Elizabeth Taxel have previously characterized the indictment as “sloppy and unconstitutionally specious.” But even in a case that is light on evidence and filled with procedural missteps from the AG’s office, this latest blunder is remarkable. 

“To proceed in such a haphazard way is totally reckless, and probably indicative of the carelessness with which the Attorney General drafted the original indictment,” said Franklin.

In the motion, attorneys for ASF members ask Judge Kimberly Adams to dismiss the indictment against their clients, to disqualify the AG’s office and APD from the case, and to hold a hearing where members of the AG’s office and APD can be questioned.

If Judge Adams grants the defense’s request to disqualify the AG’s office, it could pose a major blow to the prosecution’s case—one that could undermine or even end the case altogether.

The AG’s office has vocally led the case against Stop Cop City protestors, even after DeKalb County District Attorney Sherry Boston pulled out of the case in June 2023, implying she did not believe she could make the case beyond a reasonable doubt—yet another indicator that the state does not actually have a criminal case, just a thirst for vengeance against social movements that challenge its power.

The motion could also impact AG Chris Carr’s preparations for a 2026 gubernatorial run. Carr has already used his support for Cop City for his coming campaign.

It’s unclear exactly what would happen if Judge Adams removes the AG’s office from the case. A local District Attorney’s office could take over the prosecution, but with such a sprawling and complicated case, explained Franklin, there is a question of whether any of the already-overwhelmed DA’s offices could take on the case. 

Boston, the DeKalb DA, would be unlikely to re-engage with the case, and Fulton County DA Fani Willis is currently underwater with two high profile—and exceedingly messy—RICO cases: the Trump prosecution and the YSL prosecution.

Additionally, even if the AG’s office and APD are removed from the case, that doesn’t change the fact that privileged material has already been shared with every defense team on the case—which in itself could interfere with defendants’ ability to mount their defense.

“There is no way to put the genie back in the bottle,” the motion reads.

Despite the evidentiary and procedural weaknesses of the case, the prosecution has already accomplished one of the state’s key goals by sapping and redirecting energy from many in the movement. As many organizers said from the beginning, the goal of the sprawling RICO indictment is not necessarily to get convictions—it’s to attack a movement.

“The prosecutions have moved the center of the movement toward the inside of a courtroom, which is often demobilizing,” said Simon, an organizer I spoke to who preferred to use only their first name given the repression. In addition to subjecting defendants to a costly, dehumanizing, and bureaucratic process, the prosecutions have induced fear amongst some activists, taxed support crews for defendants, and diverted organizers’ energy to responding to the prosecutions rather than proactive organizing.

Even still, many in the movement have remained undeterred and even opened new fronts of organizing.

For example, during the wave of student encampments, students from across Atlanta universities gathered at Emory University and explicitly tied their opposition to Cop City to their opposition to the ongoing genocide of Palestinians. 

Throughout the city, activists have woven together Palestinian solidarity and Stop Cop City activism, making connections between the genocide and APD’s participation in the Gilee program that shares trainings and tactics between Israeli and Georgia police forces.

Just last week, activists engaged in multiple disruptions. On June 25, a group of activists occupied Atlanta City Hall for the day, interrupting operations and calling on the Mayor to stop Cop City. Two days later, protestors carrying Stop Cop City and Abolish Gilee signs were arrested after shutting down a road in protest of Hudson Technologies Co. and calling on the company to drop its Israel-tied contract with the Department of Defense.

More actions are expected this summer, as organizers have announced a “Summer of Resistance” to include “rallies, demonstrations, teach-ins, and a three-day music festival and convergence” over the next few months.

Ultimately, if the motion to disqualify the AG’s office and APD from the case is granted, it could provide a major boost in morale to those in the movement and free up capacity to continue organizing against Cop City. 

In any case, as Atlanta residents have shown time and again, the fight goes on. 

Micah Herskind is an organizer, writer, and law student.