New Fulton DA refers Rayshard Brooks case to state attorney general

This screen grab taken from body camera video provided by the Atlanta Police Department on June 12, 2020, shows Rayshard Brooks, right, speaking with Officer Garrett Rolfe in the parking lot of a Wendy's restaurant, prior to being fatally shot by Rolfe. (Atlanta Police Department/Zuma Press/TNS)
This screen grab taken from body camera video provided by the Atlanta Police Department on June 12, 2020, shows Rayshard Brooks, right, speaking with Officer Garrett Rolfe in the parking lot of a Wendy's restaurant, prior to being fatally shot by Rolfe. (Atlanta Police Department/Zuma Press/TNS)

Credit: TNS

Credit: TNS

Cites previous DA’s conduct in bringing charges

Newly elected Fulton County District Attorney Fani Willis has decided to hand over the case against the former Atlanta police officer charged with felony murder in the death of Rayshard Brooks to another prosecutor.

In a letter sent Wednesday to Georgia Attorney General Chris Carr, Willis cited the conduct of former DA Paul Howard in her request to have the case transferred. She’s also requesting to have transferred an excessive force case involving six Atlanta Police Department officers.

“My predecessor obtained arrest warrants against the following defendants for incidents that occurred during the campaign,” Willis wrote. “I believe his conduct, including using video evidence in campaign television advertisements, may have violated Georgia Bar Rule 3.8(g).”

That rule states that “a prosecutor in a criminal case shall, except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Willis said she believes Howard’s actions “create sufficient question of the appropriateness of this office continuing to handle the investigation and possible prosecution of these cases.”

Officer Garrett Rolfe, since fired, shot Brooks twice in a downtown Wendy’s parking lot last June after he and another officer responded to a suspected DUI incident. He is free on $500,000 bond. Brooks, a 27-year-old father of four, scuffled with officers after they attempted to arrest him, striking one and grabbing a Taser from the other.

Willis’ request gives Carr several options, including assigning the case to another Georgia district attorney. They would be under no obligation to accept, and, considering the controversial nature of the cases, many prosecutors might pass, said former DeKalb County District Attorney Robert James.

“You’re going to make someone mad either way,” James said.

Carr could also keep the case for his office to handle, assign it to the prosecuting attorneys council or appoint a special prosecutor.

“There’s no reason the Georgia Attorney General could not investigate and prosecute the case, if appropriate, using the staff in his office,” said Richard Hyde, who worked as an investigator for former AGs Mike Bowers and Thurbert Baker. “That’s what we would have done.”

A spokesman for Carr’s office said he is awaiting “additional information necessary to initiate the process for appointing a substitute prosecutor.”

Willis, who soundly defeated Howard last year, said she had been leaning towards this decision since reading a defense motion calling on the former DA to recuse himself.

“Sometimes as a lawyer you’ll be in a trial and you get a gut punch when you know the other side has got you,” Willis told The Atlanta Journal-Constitution Thursday. “And this was one of those times.”

The recusal motion accused Howard of making “ethically inappropriate” statements, if not outright misstatements of fact, to the public about the case.

“Paul Howard has systematically sought to deprive Garrett Rolfe of a fair trial and impartial jury since the day he announced his decision to arrest Garrett Rolfe,” the defense motion states.

Attorney Noah Pines, who represents Rolfe, said Willis made the right call.

“As we indicated in our motion to recuse, Paul Howard’s unethical actions poisoned the entire Fulton County District Attorney’s Office from prosecuting Garrett’s case,” he said.

Pines said he’s hopeful the new prosecutor “will review the GBI report, which we believe is favorable, and dismiss the case against Garrett.”

Attorney Chris Stewart represents Brooks’ family and Taniyah Pilgrim, the Spelman College student involved in the excessive force case.

“We’re shocked,” he said of Willis’ decision. “The families would have appreciated a meeting with the DA or at least a phone call.”

In a statement, Stewart and his co-counsel Justin Miller said they are hopeful “Attorney General Carr will quickly reassign the cases to another District Attorney who will then use the full resources of their office to prosecute these officers.”

Willis said she felt like she could prosecute the case fairly but she feared others would not see it that way. She said Brooks’ family had expressed a lack of confidence about how she’d handle the case. Moreover, she said, past and current members of the Fulton DA’s office are likely to be called as witnesses in the ongoing state investigation into the grand jury subpoenas.

Whoever ends up inheriting the cases courts certain controversy. To demonstrators who took to the streets last summer in protest of police misconduct, Brooks was a victim of excessive force, targeted because of his race. He was Black; the officers involved are white.

Many of Rolfe’s colleagues contend the shooting was justified because Rolfe acted in self-defense, according to his training. Brooks grabbed a Taser from from Officer Devin Brosnan, struck Rolfe, then fired the Taser in Rolfe’s direction as he attempted to flee. Brosnan was charged with aggravated assault and two counts of violating his oath. Willis also seeks to have that case transferred.

After Rolfe and Brosnan were charged, hundreds of Atlanta police officers staged an unofficial “blue flu” in protest.

Willis said she did not read the GBI report about the Brooks shooting, saying she didn’t want it to cloud her decision whether to prosecute.

James said Willis is certain to catch heat for her decision.

“I don’t really understand how Mr. Howard handled the cases constitutes a conflict,” he said. “When you’re the DA in a big metro county, controversy comes with the job. Sometimes inaction can be just as controversial.”

Willis said she knows some people will criticize her decision.

“I have over 100 cases involving law enforcement officers and public officials that I will be prosecuting,” she said. “Ms. Willis does not run from hard cases.”

― Staff writer Bill Rankin contributed to this article.

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