David McDade
David McDade (Alison Church/Freelance)

A district attorney’s conflict of interest that precluded him from participating in a prosecution infected his entire office, the Georgia Supreme Court has ruled.

Friday’s unanimous high court ruling said then-Douglas County District Attorney J. David McDade’s personal interest in a child molestation prosecution tried in 2006 took away his assistant DAs’ authority to try the case. Presiding Justice P. Harris Hines wrote for the court that a judge who heard the defendant’s habeas corpus petition did not err in vacating the defendant’s conviction on the ground that the defendant’s lawyer on direct appeal should have raised the conflict of interest issue.

“When the elected district attorney is wholly disqualified from a case, the assistant district attorneys—whose only power to prosecute a case is derived from the constitutional authority of the district attorney who appointed them—have no authority to proceed,” wrote Hines.

Prior to trial, defendant William C. Payne asked a judge to disqualify the entire Douglas DA’s office from the case, citing the designation of McDade as a witness against him at trial. But his motion was denied, according to Hines’ opinion.

McDade testified in Payne’s child molestation trial, saying his daughter was a classmate of the alleged victim and told him what she heard of the crimes. He told the jury he participated in an interview of Payne early in the investigation and then realized he likely would be a witness at trial and removed himself from the prosecution. At the conclusion of the trial before Douglas County Superior Court Judge David Emerson, Payne was convicted of two counts of aggravated child molestation, three counts of child molestation and one count of cruelty to children.

On appeal, Payne raised various arguments but not the conflict of interest issue. His convictions were affirmed. According to the Court of Appeals docket and Lexis’ reporting of the state appellate courts’ decisions, Payne’s direct appeal was handled by Atlanta lawyer Brian Steel. He could not be reached Friday afternoon.

In 2009, Payne filed a petition for a writ of habeas corpus, claiming among other things that his counsel for the direct appeal was ineffective. The habeas judge, George M. Peagler Jr. of the Southwestern Circuit Superior Court, found that McDade had a conflict of interest and had testified falsely at trial and that appellate counsel should have pursued these two issues on appeal.

The state attorney general’s office appealed that ruling to the Supreme Court, which on Friday affirmed. Hines said that under the court’s precedent, McDade’s role as a witness, which precluded him from acting as an advocate for the state at trial under bar ethics rules, did not disqualify everyone on his staff.

But Hines said McDade and his entire office were disqualified based on the habeas judge’s finding that McDade had a personal interest in the case.

“The elected district attorney is not merely any prosecuting attorney,” wrote Hines, adding that the DA is a constitutional officer. “The elected district attorney appoints the assistant district attorneys … the assistant district attorneys serve only at his pleasure and their authority is derived from him.”

Hines added that state law permits the chief ADA to temporarily accept the powers and duties of the DA in the event the DA is physically or mentally disabled or temporarily absent from the circuit. But a DA who is wholly disqualified in a case is supposed to tell the state AG, who will find another attorney to handle the matter, something that didn’t happen in Payne’s case, said Hines.

Hines said the habeas judge’s finding that McDade had a personal interest in the prosecution was supported by the record. Hines noted that the McDade testified that his daughter’s conversation with the victim was emotional and his daughter’s concern caused him to pay particular attention to the situation. The habeas judge noted that McDade had bolstered the credibility of another witness at trial.

Hines noted that the habeas judge found that the screening procedures supposedly erected to isolate McDade from the prosecution were not maintained, specifically citing testimony that, sometime in 2005 or 2006, McDade was involved in a witness interview with the victim.

Thus, concluded Hines, it was not error for the habeas judge to find that Payne would have won his direct appeal if his appellate lawyer had raised the conflict of interest issue. Because the court was affirming the habeas judge on this ground, said Hines, it did not need to address the habeas judge’s finding that Payne’s lawyer should have raised on direct appeal a question about the truthfulness of McDade’s testimony.

The case at the Supreme Court was won by August “Bud” Siemon III of Atlanta. He could not be reached for comment.

The AG’s office handled the habeas matter. A spokeswoman for AG Sam Olens said the office was reviewing the opinion and would have no comment.

McDade retired from the DA’s office in April, resolving a state criminal investigation of spending by his office. He was quoted at the time as telling another newspaper that about $4,000 in agreed-upon repayments were based in part on a clerical error and in part on expenditures he maintained were not improper. His chief assistant DA, Brian Fortner, took over McDade’s position.

Fortner said Friday in an email he was in contact with the AG’s office to discuss the potential for a motion for reconsideration. “Whatever the outcome, the Douglas County District Attorney’s Office remains committed to seeking justice for the victim in the case,” said Fortner. “These are very serious charges that involve a child victim. I do not want to comment on the legal issues considering the potential for a reconsideration. I will say that this appears to be a change in the law and I disagree with it.”

McDade could not be reached for comment on Friday’s ruling.

The case is McLaughlin v. Payne, No. S14A0220.