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Schaff v. State, 304 Ga.App. 638, 697 S.E.2d 305 (June 28, 2010). In defendant’s prosecution for child molestation and related offenses, trial court abused its discretion in disqualifying defense counsel who took videotaped statement from child victim recanting her allegations against defendant. State contended that counsel became a necessary witness by taking the child’s statement; Court of Appeals disagrees. “‘Rule 3.7 (a) of the Rules of Professional Conduct of the State Bar of Georgia provides that, a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. The party moving for disqualification of a lawyer under Rule 3.7 has the burden of showing that the lawyer is likely to be a necessary witness by demonstrating that the lawyer's testimony is relevant to disputed, material questions of fact and that there is no other evidence available to prove those facts,’” quoting Clough v. Richelo, 274 Ga.App. 129, 132(1) (616 S.E.2d 888) (2005). “‘In determining whether to disqualify counsel, the trial court should consider the particular facts of the case, balancing the need to ensure ethical conduct on the part of lawyers against the litigant's right to freely chosen counsel.’ (Punctuation omitted.) Id.” Here, however, the child’s mother was also a witness to the child’s statement, so counsel is not a necessary witness; and while the trial court worried that the mother might not be truthful about the circumstances of the child’s statement, Court of Appeals concludes that “such speculation as to the content of an opposing counsel's testimony could not support a disqualification order. ‘Otherwise, any party could successfully move to disqualify an opposing attorney by simply averring that the opposing attorney might possess information that is damaging to the attorney's client's case and, therefore, that the attorney is likely to be a necessary witness in the moving party's case. To approve of such a tactic would be opening the door to blatant misuse of a rule that already has great potential for abuse.’” H. DISTRICT ATTORNEY, ROLE OF See also subheading DISQUALIFICATION, above, and WITNESSES – ATTORNEYS AS WITNESSES below Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (November 19, 2012). Murder convictions affirmed, but death sentence reversed and remanded; trial court properly determined that Georgia’s death penalty statutes are not unconstitutional for the reasons advanced by defendant. “Georgia's death penalty statutes are not unconstitutional because they allow prosecutors discretion in selecting cases in which to seek the death penalty. See Walker v. State, 281 Ga. 157, 161, 635 S.E.2d 740 (2006).” Prince v. State, 299 Ga.App. 164, 682 S.E.2d 180 (July 15, 2009). District attorney’s input into scheduling of cases for trial was not improper, distinguishing Cuzzort v. State, 271 Ga. 464 (519 S.E.2d 687) (1999). Defendant, who was released on bond, was passed over for trial in favor of those awaiting trial in jail. Defendant contended that the district attorney was allowed to control the calendar and did so by holding defendant’s case until original judge retired and another judge took office. However, “[t]he record reveals that the decision to create a ‘priority calendar’ originated with the trial judge who requested the assistance of the assistant district attorney to help determine which cases to calendar. See Cobb v. State, 254 Ga.App. 48, 51(4) (561 S.E.2d 124) (2002) (finding no Cuzzort violation when decision to create a priority calendar was made by trial court). The assistant district attorney did not independently calendar the cases nor call them for trial. Under these circumstances, there was no violation of Cuzzort. ” Adams v. State, 282 Ga.App. 819, 640 S.E.2d 329 (November 27, 2006). The “Internal Operating Procedure” of the Appalachian Circuit “appoints the district attorney to act as the calendar clerk for criminal matters.” Defendant challenges this practice as “an unconstitutional delegation of judicial power [which] violates his right to due process of law.” Court of Appeals finds no merit in defendant’s contention. “While the separation of powers is fundamental to our constitutional form of government, it does not follow that a complete separation is desirable or was intended. In re Pending Cases, Augusta Judicial Circuit, 234 Ga. 264, 265, 215 S.E.2d 473 (1975). ‘The three departments of government are not kept wholly separate in the Georgia Constitution.... Our Constitution requires a district attorney to perform such other services as shall be required of him by law. Ga. Const., Art. VI, [Sec. VIII, Par. I(d)].’ (Punctuation omitted.) Id. at 266, 215 S.E.2d 473. Included among those other services is the requirement that the district attorney ‘otherwise ... aid the presiding judge in organizing the courts as he may require.’ OCGA § 15-18-6(3). Indeed such aid is contemplated by Uniform Superior Court Rule (USCR) 30.1, which provides that ‘[t]he judge, or the judge’s designee, shall set the time of arraignment unless arraignment is waived either by the defendant or by operation of law.’ (Emphasis supplied.). Given that the functions of the district attorney are not exclusively executive, the Internal Operating Procedure 2000-3 of the Appalachian Judicial Circuit, which appoints the district attorney to act as calendar clerk for criminal matters, merely aids the judges in the Appalachian Judicial Circuit in organizing their courts and is not an unconstitutional delegation of judicial powers .”