Critics on Tuesday pounced on the decision of a Habersham County grand jury not to indict any of the officers involved in a botched drug raid that left a toddler disfigured.
“How can it not be a crime for a policeman to throw a bomb into a room that injures a baby? That’s not answered,” said Donald E. Wilkes Jr., a professor of law emeritus at the University of Georgia who reviewed the grand jury’s 15-page presentment issued Monday. “This is a shocking miscarriage of justice.”
Nineteen-month-old Bounkham “Bou Bou” Phonesavanh’s nose was detached 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 playpen where he was sleeping. Family spokesman Marcus Coleman say the toddler’s medical bills — which Habersham County won’t pay — have already topped $1 million and he still faces numerous surgeries.
“This is unbelievable to me,” said Bounkham Phonesavanh, the boy’s father. “I just don’t understand how or why the grand jury would not charge any of these officers for what they did to us. It hurts me to see my family suffer like this and for them to do nothing.”
Criminal charges could still be forthcoming, however. In a statement released Tuesday, U.S. Attorney Sally Quillian Yates said, “Federal authorities have been participating in the investigation of this terrible incident, and now that a state grand jury has declined to return an indictment, we will review the matter for possible federal charges.”
The grand jury placed much of the blame for the May 28 raid on the unit that planned it: the since-disbanded Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team. Drug investigations in Habersham now fall under a larger task force, supervised by the GBI, that includes White, Banks, Lumpkin and Towns counties.
The case agent who prepared the affidavit securing a no-knock warrant warned the Habersham SWAT team that executed it to expect armed guards, a cache of weapons and no children. Police on the scene found no sentries or guns but would discover four children, including Bou Bou, inside the home after the raid commenced.
“There was enough evidence for (the case agent) to resign,” said the Phonesavanhs’ attorney, Mawuli Davis. “Providing misleading, false information is in fact a crime. It’s a violation of her oath of office.”
Davis said the jurors overlooked the “reckless conduct” by the SWAT team, noting that the SWAT team passed a van parked in the driveway of the home that contained four child seats.
Georgia law defines reckless conduct as “causing bodily harm to or endanger(ing) the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk … which a reasonable person would exercise in the situation.”
“If the lights were out in this room and a civilian came in and threw (firecrackers), that would be considered reckless conduct,” Davis said.”
“They were clearly circling the wagons to protect their own,” he said.
In their presentment, the jurors indicated that they were swayed by “the very real sadness, regret, and anguish in law enforcement officers who were involved in these events.”
The presentment also included words of sympathy for the Phonesevanh family.
“Nothing can be more difficult and heart wrenching than injuries to one’s child,” they said. “Our group attempted to try and understand what it must have been like to hvae gone through and lived through this situation, realizing that it is not possible to know or understand what it truly felt like.”
In an interview with The Atlanta Journal-Constitution, Brian Rickman, the DA for the Mountain Judicial Circuit District, defended the grand jury’s ruling and his decision to make the citizen-jurors “co-investigators” who would act as a check against accusations of a cover-up.
“These are people who wanted to make sure their community was represented well,” he said. “There was a lot of work put into this decision, a lot of struggle. They wanted to make very specific recommendations to prevent something like this from happening again.”
The jurors’ suggestions included better training, using Superior Court judges to approve no-knock warrants and, whenever possible, arresting drug suspects away from a home. The jurors said they did not believe the no-knock warrant was unjustified in this case because the suspect, Wanis Thonetheva, was on bond for drug and gun charges. But they did not mention that Thonetheva was arrested without incident and without a no-knock warrant later that day.
Meanwhile, Rickman said he is confident he followed the proper legal channels in his use of the grand jury while disputing assertions that, as a member of the NCIS unit he was investigating, he should have recused himself.
“If I don’t have a legal conflict of interest, which I do not, it’s just as wrong for me to cut tail and run,” Rickman said. “What I couldn’t do is walk away from a case because I was going to get criticized. The most expedient thing for me to do would’ve been to walk away from it.”
But for Wilkes, the grand jury’s decision not to prosecute demonstrated once again that “law enforcement is treated differently.”
“As long as police who do these things are treated this way, they’ll continue to do it,” he said. “This looks bad in a society dedicated to the rule of law.”
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