ATLANTA — here has been a lot of controversy and questions from the public and legal teams over why the Fulton County district attorney didn’t wait for the result of the Georgia Bureau of Investigation probe before charging the officers who shot and killed Rayshard Brooks.
The short answer is there’s no legal requirement for him to do that. The public debate is whether the case was charged properly or too quickly.
Channel 2 investigative reporter Nicole Carr also learned that there is a call for a special prosecutor in the case, but the process, according to Georgia law, would involve more than the current request made by a U.S. congressman.
For the past five years, having the GBI investigate officer-involved shootings has been the standard.
The agency must be requested by state or local law enforcement agencies to step in and provide a third party probe. That happened in the Brooks case when the Atlanta Police Department made the initial request last weekend.
The GBI does not make charging recommendations, but their findings are typically used to supplement prosecutors’ investigations. GBI officer-involved shooting investigations usually take 30-90 days to complete, according the agency and prosecutors. Collectively, the information can be used in charging decisions.
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Fulton County District Attorney Paul Howard took the unusual step Wednesday of charging the officers in the Brooks case before reviewing that third-party investigation , drawing public ire.
In part of a Thursday statement, an attorney for fired officer Garrett Rolfe described Howard’s actions as “rash.” Rolfe faces nearly a dozen charges, including felony murder.
“Had Paul Howard waited for the GBI to complete its investigation, he would have learned that while Rayshard Brooks’ death was tragic, Officer Garrett Rolfe’s actions were justified under Georgia law and that there is no legal basis to charge him with 11 felonies,” attorney Noah Pines wrote.
“When I watched the press conference, and I realized that the GBI was not included, and then later read the press release that the GBI was unaware of the charges and they were not consulted, I was quite shocked, to be honest with you,” added Vince Velasquez, a retired Atlanta police homicide detective.
But Howard is not legally bound to wait for the GBI findings to move forward. Prosecutors also use their investigators to conduct parallel probes.
“The district attorneys have the power to bring charges or to announce that they intend to bring charges on any case that they find probable cause that crimes been committed,” said Gwinnett County District Attorney Danny Porter.
Porter the former head of the Prosecuting Attorneys Council of Georgia, added the move is still unusual. In 2015, the GBI offered its independent, officer-involved shooting investigations to agencies. It followed a rash of OIS incidents in DeKalb County, Porter said. He said prosecutors across the state agreed those investigations were critical to their parallel investigations.
“For my purpose as the prosecutor, I get a better product out of the GBI,” Porter said. “The GBI does a better job than most local agencies can do. They have the technology, they have the skills, they have policies and procedures that have been honed over the last five years.”
During a Wednesday press conference Howard laid out photos, videos, multiple witnesses and physical evidence that his investigators had gathered, after acknowledging there was a question of how he was able to charge the case in a matter of days.
“Having video that corroborates witness statements — that’s huge regardless of whether we’re talking about the GBI investigating or we’re talking about the DAs office investigating it,” said Georgia State University law professor Jess Cino. “That corroboration, that at least confirms the stories that they are getting from these early witnesses that will make them a little more comfortable with going ahead and issuing the arrest warrants now.”
Velasquez echoed Porter in saying the initial investigative process typically involves GBI findings.
“I was part of an officer-involved shooting team for many years at the Atlanta police, and we decided to get away from that and send it to the GBI,” Velasquez said. “Paul Howard was included in that. The DA’s office co-signed that, and that’s been the process all along.”
Whatever the GBI does find in the Brooks case will still be key to the rest of Howard’s investigation and the next step, legal analysts say.
“It’s also important to keep in mind we’re just talking about an arrest right now. We’re not to the grand jury point. We’re not to the point of an indictment being issued,” Cino said, noting Howard would want to forward the most detailed presentment possible.
Howard said because of COVID-19 shutting down the court system, it will be months before a grand jury convenes on the Brooks case.
Georgia U.S. Rep. Doug Collins has called on state Attorney General Chris Carr to appoint a special prosecutor in the case.
The attorney general cannot do that on his own. Georgia law requires district attorneys to disqualify themselves or for judge to disqualify them before another prosecutor can be appointed.
Defendants have petitioned the courts in disqualification matters, and they stand as their own cases.
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