Fulton ADA, APD found in contempt for not sharing confidential informant information with public defender

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Months dragged on and no progress was made. When it came time for Fulton County District Attorney Paul Howard's office to follow a judge’s order and turn over information, Abbasi was told the information didn’t exist. Only after Abbasi threatened to file a motion for contempt did the information arrive.

Now a judge has found the APD and Assistant District Attorney Vincent Faucette — whom the judge has jousted with in court in the past — in contempt. She’s given the police and prosecutor two options: Pay $1,000 each in fines or come back within 30 days with a training procedure to avoid delaying justice again.
Abbasi's client Jamal Chandler is one of four defendants facing an array of charges, including participation in criminal street gang activity and felony murder related to the January 2014 killing of Randy Menefee. Police say Chandler and other suspects barged into Menefee’s northwest Atlanta apartment and fatally shot the 35-year-old man.

On Jan. 13, Fulton County Superior Court Judge Wendy Shoob ordered prosecutors to turn over information related to the informant — Creative Loafing has decided not to name them out of safety concerns — that “included the amounts paid to the informant as a confidential informant, the tips provided by them, and the cases in which they assisted the police.” The APD and DA had nine days to comply and produce the documents for the court to review.

The day before documents were due, according to the order, Faucette told Abbasi in an email that the department did not keep such records — a claim that Shoob said in the order “turned out to be untrue.” Faucette later provided two items: the case file in which the informant had previously testified as a witness and emails from APD regarding the informant’s role in other investigations.

“However, there was no specific information regarding the APD's payments to the informant,
how often they were used as a witness or informant, and what kinds of information they provided,” Shoob says in the order.

But Abbasi did not give up. She told the court that an APD detective told her in November 2015 that the informant had been paid for providing information and that the police department maintained such records. She informed Faucette on Feb. 22 that she would move forward with filing a motion for contempt.

“I wasn’t getting information that I knew was out there and I was told we don’t have it or it doesn’t exist,” Abbasi says. “I’ve had it take time before, but never ‘it doesn’t exist’ when I know it does. I’ve not had that with other agencies previously.”

Faucette, according to the order, agreed to provide some documents, ending with “after all that if you feel the need to file an additional motion then be my guest.”

So she did. And only after Abbasi filed her motion for contempt on March 8 did Faucette produce the file. But the public defender did not withdraw the motion. At a March 31 contempt hearing, Faucette and officers attempted to explain how the requests fell through the cracks, saying the failure to provide the requested information was not intentional, and pointing to a “miscommunication.” One APD sergeant who was called as a witness said he thought the court’s order had “expired.” Faucette also said he thought Abbasi's motion for a contempt order was retaliatory out of frustration over the process. Shoob found neither the sergeant nor Faucette, according to the hearing transcript, “credible.”

An APD attorney apologized to Abbasi but Faucette declined to do so, according to the transcript.

In the blistering contempt order issued on April 22, the judge says the battle over the documents has “slowed the progress of the case to trial as the Defendant waits in jail” and accused the police and prosecution of engaging “in a game of untruths and hide the ball.” Shoob noted that defense attorneys rely on police and prosecutors to provide exculpatory evidence.

“If basic discovery requests are met with indifference, disinterest, or even outright lies, we no longer have a just system,” Shoob said.

As punishment, she slapped the APD and Faucette each with a $1,000 fine payable to the public defender’s office. In lieu of a fine, she said, both departments could come up with a written procedure to train officers and prosecutors to “facilitate the prompt collection and transmittal of discoverable evidence to the defense.” In addition to improving the way police respond to defense subpoenas and other communications, the procedure should also “provide for the education of ADAs on their legal and ethical obligations under the Discovery Act and the United States and Georgia Constitutions.”

There are generally two kinds of contempt orders: civil and criminal. They are not just a slap on the wrist. In some cases, contempt orders can come with sanctions until a party complies with a judge’s instruction. In the Chandler case, the prosecutors and APD had already complied by turning over the documentation — but the judge chose to move ahead.

“Courts have a good bit of leeway to impose that kind of punishment but they don’t generally do so,” says Georgia State University College of Law Associate Professor Nirej Sekhon. “This isn’t something courts generally do willy-nilly. It takes fairly egregious conduct to compel this kind of sanction.”

It's worth noting that this isn't the first time Shoob has tangled with Faucette over a case, or with Fulton County District Attorney Paul's Howard office, for that matter. Howard last year requested a judicial ethics investigation into Shoob, who used to be an assistant district attorney in the longtime DA's office before becoming a judge.  

According to a detailed Sepember 2015 rundown by the Atlanta Journal-Constitution's Bill Rankin, Faucette cried foul in a different case after Shoob informed a jury that a guilty verdict would result in a life sentence for the defendant. The ADA objected, requested a new trial, and Howard unsuccessfully asked the Georgia Court of Appeals to halt the proceedings. In another case, Howard protested after Shoob barred a specific sex-crimes prosecutor — one whom she had filed a complaint against — from trying cases before her. According to Rankin's reporting, both sides have hired lawyers to settle the dispute.  

APD Spokeswoman Elizabeth Espy told CL the department was reviewing the order. The DA’s office did not respond to several requests for comment.

“All of us defense attorneys, we are completely reliant on the DA and police for reports,” Abbasi says. “It’s not that we can go in their buildings and get them. All three of us were supposed to be working toward justice. When that stops happening we have consequences for everyone with constitutional rights, which is everyone in our society.”