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Fulton County Superior Judge Scott McAfee hears motions from attorneys representing Ken Chesebro and Sidney Powell in Atlanta on Wednesday, Sept. 6, 2023. Powell appears in a booking photo, inset on the left. (Jason Getz/Atlanta Journal-Constitution via AP, Pool; Fulton County Sheriff’s Office)
“Kraken” lawyer Sidney Powell on Thursday succeeded in having her speedily approaching racketeering (RICO) trial severed from former President Donald Trump and 16 other co-defendants, but she failed to convince the judge that she should stand trial alone.
Fulton County Superior Court Judge Scott McAfee, finding that “severance is an absolute necessity” in “‘mega-trials’ such as this,” ruled that Powell and “coup memo” drafter Ken Chesebro will stand trial together.
“Considering the record, law, and arguments of counsel, the Court finds that to the extent Defendants Chesebro and Powell request severance from each other, the motions are DENIED,” the judge wrote. “However, after considering the parties’ filings and without the need for a hearing, the Court further finds that severing the remaining 17 co-defendants is simply a procedural and logistical inevitability, and thus the motions to sever from Defendants Chesebro and Powell are GRANTED IN PART.”
In late August, Powell filed a motion to sever her case from each of her 18 co-defendants, arguing that anything less than standing trial alone for three days would create an “adverse spillover effect” that “would be devastating” to her.
“It defies human nature even to imply that an adverse spillover effect would not occur. To the contrary, the spillover effect is real and would be devastating to Ms. Powell,” Powell’s lawyer Brian Rafferty previously argued.
Judge McAfee rejected the “spillover” concern by pointing out that Powell and Chesebro “contend their involvement with each other is non-existent,” that “essentially they have been separately charged as distant spokes on an allegedly vast conspiratorial wheel,” and that they “do not intend to point fingers at each other during trial.”
Ken Chesebro (Fulton County Jail)
“These arguments cut against severance [from each other]. By emphasizing that they have been charged for ‘different, albeit related, crimes, and [that] the evidence against them for those crimes was distinct, such that it is not likely that [Powell would be] convicted solely due to her association with [Chesebro],”” McAfee wrote. “Defendants have reduced any concern for ‘spillover’ evidence or juror confusion.”
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The judge also addressed Powell’s complaint that she may be “forced to sit in a courtroom for weeks or months with co-defendants,” resulting in “tremendous prejudice to Ms. Powell.”
“Accordingly, the Court finds that Defendants Chesebro and Powell have not satisfied their burden to show that due process mandates severance from each other. At trial, the Court intends to give all appropriate pattern instructions concerning multi-defendant proceedings,” the ruling said. “This, in combination with any other reasonable instructions or precautions requested by the parties, will ensure that a joint trial does not result in unavoidable prejudice.”
McAfee wrote that the “precarious” situation he’s in when it comes to “safeguard[ing] each defendant’s due process rights […] weighs heavily, if not decisively, in favor of severance.” He said that jury selection with all defendants standing trial together would simply make “an already Herculean task […] more unlikely.”
“Additional divisions of these 17 defendants may well be required. That is a decision for another day once the many anticipated pretrial motions have been resolved and a realistic trial date approaches,” the judge said. “For now, to the extent the Defendants’ motions request severance from Defendants Chesebro and Powell, the motions are GRANTED IN PART.”
A footnote explained the upshot of the status quo and the what’s to come in the ensuing weeks and months as it relates to other co-defendants who, unlike Powell and Chesebro, haven’t yet sought a speedy trial:
Should any defendant who has not yet filed a waiver invoke the statutory speedy trial deadline before the trial of Defendants Chesebro and Powell has commenced, those defendants will immediately join the October 23rd trial. And the Court will revisit the issue of severance for any defendant who has not filed a waiver by September 29th. Regardless, the Court has received assurances that other members of the Fulton County bench stand ready to begin a second trial within the November/December term.
In closing, the judge denied motions to stay the state case pending the outcome of federal removal litigation in the U.S. Court of Appeals for the 11th Circuit.
Read the ruling here.
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