Attorney for Garrett Rolfe wants DA Paul Howard off the case

ATLANTA - The lawyer representing the fired Atlanta Police Department officer charged with shooting and killing Rayshard Brooks wants District Attorney Paul Howard removed from the case.

Attorney Noah Pines has filed a blistering motion accusing Howard of unethical actions and a conflict of interest in the case.

In June, Fulton County District Attorney Paul Howard put on a full-blown courtroom style news conference when he announced felony murder charges against APD officers Garrett Rolfe and Devin Brosnan in the shooting death of Rayshard Brooks.

Now, Rolfe's attorney Noah Pines says those statements were "ethically inappropriate."  And two former Democratic District Attorneys agree.

"You don't use your cases for political benefit, that's just not right," says former DeKalb DA Bob Wilson.

"It's against the code of ethics," adds another former DeKalb DA, J. Tom Morgan.

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Noah Pines argues in his motion to recuse that legal rules are clear - a prosecutor cannot make public statements that would bring "condemnation of the accused" or prejudice potential jurors.

Bob Wilson says Howard created ethical and political problems for himself by rushing to judgment, then talking about it.

"The fact that the DA rushed the charges, without waiting for the GBI, clearly tells you it was done for political purposes. He was in a run-off," said Wilson.

Noah Pines motion points out the District Attorney himself is under GBI investigation for "taking money from a charity to bolster his salary.”  As the FOX 5 I-Team earlier reported, Howard is also under investigation for issuing grand jury subpoenas (in this case) when there was no empaneled grand jury in session as required by law.

"I think it is a fair argument. That investigation goes directly to the case we are talking about," said Wilson. 

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J. Tom Morgan says a prosecutor could be held in contempt of court for issuing a grand jury subpoena without a grand jury, but he doesn't feel it is a basis to recuse a prosecutor in a case.

"You are prohibited from issuing a subpoena to an entity that is not in session, but that has never been grounds for a recusal motion," said Morgan.   

Finally, Noah Pines says Paul Howard must be recused because he plans to call Howard himself as a witness if the case goes to trial. The reason: Howard charged several officers for this late-night stop during a pandemic curfew and told the public the officers used a Taser which is a deadly weapon.

Noah Pines argues when Rayshard Brooks shot at his client with a Taser then officer Rolfe had a legal right to use deadly force in defense.

Bob Wilson agrees.

"In this case, he's created a situation between two press conferences where he might be forced to be a witness in both cases," said Wilson.

Paul Howard, who has been all over radio, TV, print, and social media talking about his case issued a statement saying he has no comment and will respond when the motion is heard in court.