While labeling the drug investigation that ended with the disfigurement of a toddler “hurried and sloppy,” a Habersham County grand jury on Monday ruled the law enforcement officers involved should not face criminal charges.
In a 15-page presentment, jurors were largely sympathetic to the Habersham SWAT unit that carried out the botched raid that started a national conversation about police militarization.
» VIEW THE DOCUMENT: Read the grand jury's findings here
“Rather than seeing unfeeling or uncaring robots, what has not been seen before by others and talked or written about is that these individuals are suffering as well,” the jurors wrote. “We have seen and heard genuine regret and sadness on the part of the law enforcement officers involved, and we think is it fair and appropriate to point out that they are human beings as well.”
Bounkham “Bou Bou” Phonesavanh’s nose was detatched from his face after a stun grenade, lobbed by a member of the Habersham SWAT team serving a no-knock warrant on a suspected drug dealer, landed in the 19-month-old’s playpen while he slept.
The alleged dealer, Wanis Thonetheva, did not reside at the home where the Phonesavahs were temporarily staying after they had been displaced by a fire.
The family was “devastated” to learn no criminal charges would be filed, at least by the Habersham grand jury, said their attorney, Mawuli Davis. A federal investigation into the May drug raid is ongoing. “This is a very sad day for this family and for the people of Georgia,” Davis said.
Jurors seemed well aware their decision would be greatly scruitnized.
Mountain Judicial Circuit District Attorney Brian Rickman, who convened the grand jury, said the 23-member panel was sensitive to the way their home county was being perceived nationally.
“I think it’s fair to say that no matter what they chose to do they’d be criticized,” said Rickman, whose decision to enlist jurors as co-investigators was equally controversial.
Rickman followed the procedure he used five years ago after the same NCIS team was involved in the fatal shooting of a pastor who inadvertently stepped into the middle of an undercover drug operation. The grand jury in that case also declined to bring criminal charges but a civil jury awarded the widow of Jonathan Ayers more than $2 million.
“With this presentment, one might argue that the grand jury is speaking out of both sides of its mouth,” said Philip Holloway, a criminal defense attorney and former Cobb County prosecutor. “On the one hand the presentment speaks in terms of criminal negligence by the task force, including severely deficient supervision. Yet on the other hand they elected not to recommend any criminal charges.”
Holloway said this could easily be interpreted as law enforcement looking after its own.
“If an ordinary citizen were to act with the reckless disregard described by this grand jury there can be little doubt that criminal charges would be filed,” he said.
In their presentment, the jurors criticized the “zeal to hold [drug dealers] accountable,” writing it “must not override cautious and patient judgment.”
The jury was critical of the case agent who secured the no-knock warrant and her supervisor on the Montain Judicial Narcotics Criminal Investigation and Suppression Team.
The case agent has resigned and her supervisor was reassigned with a “significant reduction” in pay. Their names were not disclosed due to “numerous death threats” made against the officers, the jurors wrote.
The panel seemed satisfied with the decision, announced last week, to disband the Habersham task force.
Narcotics investigations in Rabun, Habersham and Stephens counties will now be conducted by the Appalachian Drug Task Force, which currently oversees White, Banks, Lumpkin and Towns counties. The GBI is now responsible for supervising and training the newly expanded task force.
“Much of the problem in this tragic situation involved information and intelligence,” the jurors wrote in their presentment.
They concluded questions were asked about the presence of children in the home but surveillance prior to the raid was lacking.
Jurors also recommended that training for officers using "distraction devices" such as flash bang grenades be required by law. In this case, the officer who threw the grenade did not clear the darkened room beforehand.
“We recommend that whenever reasonably possible, suspects be arrested away from a home when doing so can be accomplished without extra risk to law enforcement ad to citizens,” the presentment stated.
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