Together they helped elevate the issue of police conduct into a national conversation.
Now the investigations into last May’s botched drug arrest in Habersham County that disfigured a toddler and the shooting three months later of an unarmed 18-year-old in Ferguson, Mo. are following similar, unconventional paths.
In each case, an anonymous panel of citizens will act as the ultimate arbiters to determine whether charges should be bought against the Ferguson officer who shot and killed Michael Brown and deputies involved in planning and carrying out the Habersham raid that left 19-month-old Bounkham “Bou Bou” Phonesavanh seriously injured after a stun grenade exploded in his playpen.
On Monday, Mountain District Attorney Brian Rickman, aided by Coweta County District Attorney Peter Skandalakis, acting as an independent adviser, began presenting findings to a grand jury that is being asked to assume greater responsibility than usual.
Typically, prosecutors come with charges in hand, seeking approval — almost always granted — to indict. But in these cases, the jurors are being empowered as investigators. The decision to indict will be theirs, with the prosecutors less an advocate for bringing criminal charges and more a dispassionate source of facts.
Rickman, who declined to interviewed for this story, said in a previous statement that letting the grand jury investigate is a “form of checks and balances.”
“It’s unusual but that doesn’t mean it’s an ineffective way of going forward,” said University of Georgia law professor Ron Carlson. “There’s many people who think this is the ideal way to do it, with the district attorney acting as a resource.”
But the process also raises questions about whether prosecutors, put in the uneasy position of having to possibly pursue criminal charges against law enforcement, are seeking indictments against law enforcement as aggressively as they would against someone from the general public. In Ferguson, several community leaders say they don’t believe longtime St. Louis County Prosecutor Robert McCulloch, whose father was a police officer killed in the line of duty, is sufficiently objective.
“It’s a politically expedient way for a prosecutor to say deflect criticism,” said Marietta defense attorney Philip Holloway, formerly a prosecutor. “This allows him to say ‘Hey, I presented evidence to the grand jury but they decided not to indict.’”
But the grand jury is still going to follow the prosecutor’s lead “99 percent of the time,” said Holloway, who is skeptical charges will be brought against the drug task force.
Rickman, the titular head of the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team, curried controversy five years ago after a Lavonia pastor — who inadvertently stepped into the middle of an undercover drug operation when he was seen with a suspected drug dealer, and admitted prostitute — was shot dead by two plain clothes deputies in an unmarked Escalade who followed him to a nearby gas station.
The deputies said they showed Ayers their badges and identified themselves as police officers, but the minister didn’t stop. As he drove away he nicked one of the deputies. His partner opened fire on the pastor, who, wounded, crashed into a telephone pole. Before he died, Ayers told hospital personnel he thought he was being robbed.
The officers were with the same NCIS team that was investigating the suspect accused of selling drugs at the home where Bou Bou was injured. Just as he’s doing this week, Rickman ceded the decision to indict the deputies involved in Ayers’ shooting to a grand jury, which declined. The pastor’s widow was later awarded $2 million settlement after filing a civil suit.
Mawuli Davis, the lawyer representing Bou Bou’s parents, said his clients are “very concerned that justice may not be served.”
The Phonesavanhs want charges brought against the officer who lobbed the grenade and those responsible for the incident report used by the Habersham County Special Response Team that conducted the raid, Davis said.
The decision to use the diversionary grenade was made in advance “due to the violent history of (suspect) Wanis Thonetheva and the stated possibility of weapons on scene, ” one of the deputies wrote in the incident report obtained from the Habersham sheriff’s office. Deputies had been briefed earlier by the NCIS team to expect two guards to be stationed on the outside of the home and several adults, and no children, inside.
“On initial glance into the room, the lights were off and there was nothing immediately visible in the entry way, ” said the deputy, who then tossed the bang “three to four feet inside the doorway.”
The child was hit, suffering a head injury, a collapsed lung and facial injuries that detached his nose from his face. He has recovered but he also has permanent facial scars.
Davis said Thonetheva — who has since pleaded guilty to selling $50 worth of methamphetamine to an undercover officer — did not live at the residence where the raid occurred and that the purchase was made in the driveway of the home. He also disputed claims of armed guard and a cache of weapons.
Thonetheva was arrested without incident the next day at a different location.
According to a spokesperson with the Mountain Judicial Circuit, the presentation to the grand jury is expected to last through Friday.
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