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Judge faces call to step down from Fulton-DeKalb Hospital Authority lawsuit

Grady Hospital. (Photo by Kelly Jordan.)

By John Ruch

The lawsuit between the Fulton-DeKalb Hospital Authority (FDHA) and its ousted former Board of Trustees chair has taken another twist. The chief judge of Fulton County Superior Court could be forced off the case after delivering an allegedly red-faced “rant” to a disobedient witness.

It’s the second time lawyers for plaintiff Dr. Sharon Harley have accused Chief Judge Christopher Brasher of bias in the case. This time, another judge, Rachel Krause, will hold a July 29 hearing to determine whether his actions amounted to bias that would disqualify him from ruling fairly. FDHA lawyers say Brasher’s admonishment of the witness was within bounds and suggest Harley is trying to “judge-shop” by delaying the trial past Brasher’s announced retirement date of Dec. 1.

Fulton County Superior Court Chief Judge Christopher Brasher. (Photo by Fulton County.)

Harley alleges she was forced off the FDHA board last year in an illegal meeting amid various power and money disputes at the organization, which owns and funds Grady Memorial Hospital. The FDHA says that’s not true and that Harley was an obstructionist to new leadership and strategies.

The FDHA also has filed counterclaims alleging that Harley and other associates tried to “intimidate and harass” witnesses and that Harley’s lead attorney, Wayne Kendall, failed to provide certain documents sought through the unusual method of a Georgia Open Records Act request. Kendall previously alleged, so far unsuccessfully, that Brasher showed bias in the case by giving the FDHA’s attorneys — but not him — a copy of a crucial order about those records.

The case went to trial on July 8 before Brasher, who will decide the case alone without a jury. After a day of testimony, Brasher put the trial on hold until Aug. 31.

That first day of trial included the testimony that triggered Kendall’s attempt to have Brasher removed from the case. It involved an exchange between witness Shawn Graham, the FDHA’s former chief financial officer, and FDHA attorney Robbie Ashe, who is better known to the public as treasurer of the MARTA Board of Directors. The subject was various statements she made in an April interview with SaportaReport for a story about the lawsuit.

Ashe and Graham sparred when he asked her about an initial version of the story in which SaportaReport described her in shorthand as a “Harley loyalist” based on her criticisms of current leadership and support for Harley’s complaint. SaportaReport later removed that description as part of an expanded and updated version after Graham objected and offered additional information about her concerns regarding FHDA’s leadership and operations.

The official trial transcript shows Ashe and Graham talking over each other about the “loyalist” comment until Brasher inserted himself and told Graham to let Ashe finish speaking. She complained that Ashe wouldn’t let her finish, either. Brasher admonished her for interrupting him as well, adding, “So keep your mouth shut until the question is asked…” Brasher and Graham then spoke over each other, exchanging complaints that each was being “disrespectful,” until Graham finally apologized.

Documents filed by Kendall’s team describe Brasher’s comments as a “rage-filled rant” that he delivered while “visibly angered” with a red face, a raised voice, and his finger pointed in Graham’s face. They allege Brasher’s behavior was inappropriate for a judge and unfair in admonishing only Graham and not Ashe as they were interrupting each other. Graham said in an affidavit that she felt “intimidated, threatened and bullied” and feared Brasher might have her arrested for contempt of court.

Ashe’s team filed a response opposing Brasher’s recusal, saying the law for recusal requires evidence of a pattern of bias or improper conduct outside of court. They say Brasher acted within his authority to keep a witness in line and that his tone and facial expressions are legally irrelevant. They also say that Harley’s attorneys wrongly attempted to imply that Brasher was acting out of racial and sexist bias and that their real motive is to delay the trial past Brasher’s retirement in hopes of getting a more favorable judge.

Among the legal disputes was whether a recusal hearing should be held at all and whether an audio recording should be admitted as evidence.

Ashe and Kendall declined comment ahead of the July 29 hearing.

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