Tags

, , , , , , , , , , , ,

Since the last article in this series (the Rayshard Brooks Archive is here), the media have continued the canonization of Brooks and the demonization of the Garrett Rolfe and Devin Bronson.  Two more people have been arrested for the arson of the Wendy’s restaurant: Chisom Kingston and John Wade:  

The City of Atlanta, apparently thinking police officers fleeing the job a good thing, honored Rayshard Brooks with a proclamation.  Apparently remembering Brooks was a convicted felon violating his parole the night he was arrested, not everyone was impressed.

Howard’s political opponent—Fani Willis–has criticized Howard’s haste:  

In order for you to get a conviction you have to do investigations correctly. So I can assure you I would have waited on the GBI‘s investigation, my investigation would’ve taken longer than four days, we would have done it properly, and if charges were decided to be brought, we would bring them in a way where we can also secure an indictment and a conviction.

However, there has been a particular development that bodes ill for the prosecutor—Paul Howard Jr—a black prosecutor, rather than a prosecutor who happens to be black.  The Daily Wire has the report:

In a defense filing for former Atlanta Police Officer Garrett Rolfe, who has been charged with felony murder in the Rayshard Brooks case, the Atlanta Police Department homicide detective assigned to the case, Al Hogan, sided with Rolfe, noting that he would have brought 10 charges against Brooks had he survived the incident.

‘Atlanta PD detective assigned to the [Rayshard Brooks] investigation says he would have charged Brooks — not Rolfe — with 10 counts, including multiple felonies,’ posted Philip Holloway, a legal analyst for WSB Radio…  Captioning a screenshot of Hogan’s letter, Holloway noted: ‘Usually law enforcement are witnesses for the state but this is from a defense filing.’

Hogan was the homicide detective initially assigned the case, and as the lead detective, was in charge of the investigation, arriving shortly after the incident:

 ‘My investigation showed that [Rayshard] Brooks’s behavior did in fact warrant several federal charges, but before I was able to pursue those charges, I was informed that [Rayshard] Brooks had died, negating the necessity for that portion of my investigation,’ he added.

Hogan was apparently almost immediately aware Brooks was a convicted felon with outstanding warrants, which more than establishes motive for his violence against the officers.  As I’ve previously noted, by the time Brooks began to run, a stolen police Taser in his hand, he had committed multiple felonies apart from those on the outstanding warrants.  It is possible the officers already knew about those warrants if they ran a routine warrant check as soon as they learned his name and date of birth.  If so, they apparently decided to continue with a DUI investigation.  But if that was the case, Brooks was not going anywhere.  They were going to arrest him.  It’s also possible, perhaps more likely, they were unaware of the outstanding warrants and believed only they were arresting a drunk driver.  If that was the case, they would have learned about the outstanding warrants sometime shortly after Brooks was arrested and secured in one of their vehicles.  Here’s the list of charges Hogan would have lodged against Brooks:

*DUI/DUI Less Safe, a violation of OCGA 40-6-391

*Felony Obstruction, Two counts, a violation of OCGA 16-10-24

*Aggravated Assault against a Police Officer, Two Counts, a violation of OCGA 16-5-21

*Battery against a Police Officer, Two counts, a violation of OCGA 16-5-23.1

*Theft by Taking, a violation of OCGA 16-8-2

*Removal of Weapon from a Public Official, a violation of 16-10-33

*Robbery, a violation of OCGA 16-8-40.1

As I’ve also previously explained, there is no way any professional police officer would just let Brooks run off after committing violent felonies against two police officers, particularly since he was drunk, and in possession of a stolen police Taser, a “less-lethal” weapon, but one still capable of causing serious bodily injury or death.  We hire police officers to expose themselves to danger in our stead, to catch dangerous criminals, not to let them run away and try to find them sometime later.  As I’ve also noted, if they allowed Brooks to run away and he injured himself or others, or committed a carjacking to get away and injured someone else, the officers, and the APD, would be sued six ways to Sunday, and deservedly so.  Officers simply letting Brooks run away would justifiably be thought cowards, and would have been liable for firing for negligence.

In a reasonable system of the rule of law, the officers would be clearly seen to be doing their jobs.  In a political system where social justice rules, there is nothing they could have done or not done that would not be criticized or criminally chargable.

The GBI will complete the formal investigation, but that does not mean Hogan’s work will be suppressed or unavailable.  This is one of the primary reasons non-political, intelligent prosecutors do not rush to file charges.  Every prosecutor lives in dread of being surprised in court, thus the old adage: “never ask a question of a witness in court to which you don’t know that answer.”  Professionals know what might appear to be obvious on Monday might turn out to be something else entirely on Tuesday.  If for no reason other than keeping from being surprised in court, which not only tends to make a prosecutor look like an incompetent and an idiot, prosecutors do not make charging decisions—and surely do not make public pronouncements—until they are certain the investigation is complete and professionally done.  The primary reason why any professional will wait is to ensure justice is done, which is their primary charge.  Social justice?  That’s another matter entirely.  Verdict first, charges and trial later.

In this case, the Defense will put Det. Hogan on the stand, and his testimony is not going to support any charges against the officers.  It’s going to blow up in Howard’s face.   This will be one of those “surprises” about which I spoke, and a particularly unnecessary and stupid one.  Officers of long experience like Hogan tend to be good and credible witnesses.  It will be interesting indeed to see what the GBI’s investigation concludes.  It is also interesting to note that investigation is still ongoing and surely will be for the foreseeable future.

The Affidavits:  I addressed these documents in Update 3, but allow me, please gentle readers, to clarify my comments.  An affiant—the person completing the affidavit—is swearing under oath, under penalty of perjury, they are telling the whole truth, concealing nothing, and everything they say is complete and accurate.  The affidavits were filled out by the prosecutor’s investigator: Donald Hannah.  Surely, Det. Hogan would not have filed any affidavit, which is probably why the prosecutor relied on Hannah, whose salary he pays.

I know nothing of Mr. Hannah’s background, but if the affidavits are any indication, everything he did in the past led to a stunning level of incompetence, or more likely, concealment.  An affidavit for an arrest warrant must contain probable cause to prove every element of everycrime alleged.  An affiant may not simply say, as Hannah does, “this guy committed a crime because I say so, so gimme a warrant.”

Let’s say I want to charge Bobby Crook with burglary.  The elements of the crime are that one must (1) enter or remain in a dwelling; (2) without the permission of the owner or person lawfully in control of that dwelling; (3) with the intention of committing a crime within or while committing a crime within.  All common burglary elements, shortened a bit for brevity.

NOTE:  Every word in a criminal statute is important.  In #3, note the “or.”  If the statute read “and,” I would have to prove Crook had the intention of committing a crime, and also actually did it.  With “or,” if he got scared and fled without actually stealing anything, I could prove burglary if I could prove intent only.

In my affidavit, I would identify myself, my authority, my current assignment, and my experience.  I would explain exactly how I came to identify Crook as a burglar.  I would provide facts/evidence—perhaps even including Crook’s confession, or witness statements from fellow criminals—that demonstrate probable cause to believe Crooks entered and remained in a dwelling at a particular place and time, that he did it without the permission of the owner, and that he had the intention of committing a crime within and did commit a crime—theft–as demonstrated by the truck load of consumer electronics, furniture and other goods he took from the dwelling, all of which I recovered and detailed on evidence forms.

As you might imagine, all of this will take a great deal of paper, because I’m going to have to explain exactly how I know every fact I’m asserting, which includes who I talked with, when, what they told me, how I corroborated that information, etc..  If I want to charge Crook with multiple separate but related felonies, I have to do the same thing for each and every one of the elements of those felonies.  Crook’s affidavit could easily run to five or more pages.

Investigators don’t put every single detail into an affidavit, but they must have probable cause for each and every element.  Note, once again, the affidavit—for murder(?!)—against Garrett Rolfe:

It’s two sentences.  One long run-on, and a rote, formulaic closing sentence.  There are no elements, no probable cause, no information about how Hannah knows anything.

Note the aggravated assault affidavit for Devin Brosnan:

It’s two sentences.  One long run-on and again, a rote, formulaic closing.  Like the first affidavit, it lists no elements and no probable cause.  We—and the judge—have no idea how Hannah came to know anything he swears to know.

In both affidavits, there is none of the essential, required, minimum information that would allow a competent judge to authorize a warrant, yet the judge did just that.  During my police days, no police supervisor would have ever allowed such an incompetent affidavit to make its way to the prosecutor’s office.   No prosecutor would have ever allowed it to go to a judge “where’s the PC, officer?”  If one somehow did slip through the system, no competent judge would have ever authorized a warrant “where’s the PC, officer?”  It must be nice to be able to bypass the system and cut the police—and the law and due process—out.

We will, gentle readers, see much more shortcutting of the law, due process and professional procedure in this case, just as we have seen in every prior case where social justice, not actual justice, was pursued.  Trust me when I say this is not merely semantics.  In the law, crossing every “T” and dotting every “i” matters.

Absent additional interesting developments, in the next article in this series, I’ll explain why Howard’s press conference should be prima facie evidence for disbarment.