Attorneys for former GSP Trooper Jacob Thompson appeared in court Friday to again request that a judge compel prosecutors to present felony murder and aggravated assault charges to the currently empaneled grand jury in Screven County.
The assertions of grand jury shopping led attorneys to argue their cases and field questions from the judge for almost three and a half hours, shedding light on priorities of the Ogeechee Judicial Circuit District Attorney’s Office that extend well beyond the Thompson case.
PURPOSE OF FRIDAY HEARING
In January, the Thompson defense team accused the state of attempting to ‘grand jury shop’ after it abruptly canceled the presentment of the case as scheduled the business day prior. Attorneys asked a judge to compel the state to present the case and avoid ‘grand jury shopping,’ but Superior Court Judge Lovett Bennett Jr. at the time ruled in favor of the state after it stated the grand jury would be empaneled for six months. District Attorney Daphne Totten contended that the state needed to prioritize the jail cases scheduled for grand jury, which had increased ‘dramatically.’
On March 5th, the Thompson defense team filed a renewed motion to prevent the state from grand jury shopping, asserting that no effort had been made to reschedule the Thompson presentment and that the grand jury was only empaneled until April, not July. Judge Bennett ordered a hearing date for March 19th.
THE STATE DEMANDS NAMES OF DONORS, OTHER RECORDS RELATED TO ASSISTANCE OF THOMPSON LEGAL FEES, FAMILY OF JULIAN LEWIS
As a preliminary matter ahead of the motions hearing, attorneys argued against four subpoenas served by the state requesting financial information and other documents related to direct and indirect financial contributions to both defendant Jacob Thompson and the family of Julian Lewis.
You can read the full piece on that here.
THE DEFENSE TEAM AGAIN ASSERTS THAT THE STATE IS GRAND JURY SHOPPING
Valdosta Attorney Sam Dennis presented the motion on behalf of the defense, citing a fear that they were dealing with ‘a government that had misunderstood its discretion that it may have enjoyed in regular garden variety criminal cases.’ Dennis told the Court that the issue was joined when the defense agreed to have Thompson testify before the grand jury after the state set the date on December 18, 2020. In lay terms, it was a binding contract that both parties agreed to and could not be rescinded under the statute.
The point of contention was the word ‘shall’ as it appears in the code section on grand jury proceedings for law enforcement officers once they give notice of their intent to testify before the grand jury. “We then are in the statutory cage that I would just call OCGA 17-7-52(d). At that point, everybody in this courtroom is bound. And I mean bound. With all due respect, Your Honor, I think the discretion has been removed from the bench on this particular issue,” Dennis said.
“It is important to evaluate the reasons given and the inaccuracies of them because it tells me that the first step of shopping for a compliant panel, that’s how the great state of New Jersey defines grand jury shopping – when prosecutors sit and wait until they can get a grand jury panel that is compliant – and it happens when there is political pressure, mostly, like in a case like this,”-Dennis told the Court.
Dennis also asserted that an increase in cases was not grounds for halting a case that was already scheduled to be presented. “Every case that gets added that isn’t a jail case is their choice. It’s not mine. It’s not yours…you can’t create the problem and then use it as an excuse,” he said.
He said the defense team made several requests by email to reschedule the grand jury presentment over the last 75 days, but the emails went unanswered by the District Attorney’s Office.
“The only thing that changed between December the 18th and January 8th was Trooper Thompson saying ‘I’m going to be there and I’m going to testify’…for the first time in the history of the case, Trooper Thompson is going to stand up and defend himself and they canceled it. We’re asking you to exercise your power, not your discretion. We need you to use your power as a superior court judge to enforce this statute.”
Dennis said if the Court did not enforce the statute, this could go on in perpetuity. “We could all be dead. My kids could be trying this case by the time they decide they’ve got a compliant grand jury panel.”
THE STATE REFUTES CLAIMS IT IS SHOPPING FOR GRAND JURORS
District Attorney Daphne Totten’s presentation to the Court was more introspective. She spent considerable time defending her own intentions, which things were important to her in her capacity as DA, and refuting what she called ‘personal attacks’ via the allegations of grand jury shopping. Totten also called the actions by the defense team ‘unprofessional,’ referred to the claims as ‘frivolous,’ ‘baseless,’ and frustrating, requested a gag order prohibiting attorneys from talking to the media, and vocalized dissatisfaction that cameras were in the courtroom for the hearing.
As to the claims in the motion by the defense, Totten contended that she was well within her authority as a constitutional officer to make the decision on grand jury scheduling, routinely mentioning that she did not have to respond to questions from the defense or offer a reason for the postponement.
Totten said it was not unusual for cases scheduled for grand jury presentment across the circuit to be canceled, but none of them involved notification of a law enforcement officer who then announced that he planned to testify before the grand jury. Her decision to cancel the presentment of the Thompson case, she said, was made before Thompson gave notice to the state that he intended to testify, and while she said she told others of her plans to delay the case, she had not yet relayed the information to the defense team because she was out of the office with her sick daughter.
Throughout the hearing, Totten lamented that neither the Court nor the defendant have any authority to weigh in on the grand jury process.
“Everything about the prosecution of a case is under the direction, supervision, and control of the district attorney’s office and my assistant district attorneys that I employ,” she told the Court. “None of the judges that I have practiced in front of have ever directed the state to present a case because there is no authority for that.” She emphasized that she would not state on the record when she plans to present the case because grand jury proceedings are supposed to be secret.
WERE JAIL CASES PRIORITIZED?
Totten testified Friday that the office only had 23 cases on December 18 when notice was sent to Thompson, but nineteen additional cases were sent over by law enforcement agencies in the 22 day period leading up to the cancelation. She said the District Attorney’s Office routinely sends letters to agencies requesting case files as they prepare for a grand jury so they can prepare indictments, seemingly confirming Dennis’ concerns about cases being added by choice.
Totten said fourteen of the nineteen new cases were “in the jail” while others were held in other counties, in the custody of the Georgia Department of Corrections or a Probation Detention Center, and others were in residential substance abuse treatment.
Totten’s final numbers purported 23 of the 42 cases presented on January 11th – or 54.76% – were jail cases, though jail records show that at least six of those occurred after Thompson’s in August of 2020.
In summation, Totten said the number of hours in a day are limited, which limits how many cases can be presented. She did not address why other grand juries in the circuit have convened more than once, but this particular Screven County grand jury has not.
Evidence, she said, did not exist to support claims that the state has been grand jury shopping. Instead, Totten alleged that it was the defense team that was shopping for grand jurors, though the defense plays no role in selecting grand jurors and the names of the current grand jurors was not made public until two days after the initial motion was filed by the defense.
THE STATE IS NOT READY TO PRESENT THE CASE
“The defense acts as if there is some sense of urgency to get this case presented and he is on bond, he was granted a bond back in November, and to my understanding from a clear reading of the bond, that doesn’t even include very many restrictions. There’s no curfew, he is allowed to work – which I understand he is doing – and he’s able to earn an income, he is able to, um, I mean, there’s not very many restrictions…so there’s no due process rights that are being violated.”
In an emergency hearing on January 11th, Totten said the state needed to “see how the evidence develops” before it would be ready to present the case. While no mention was made Friday of her previous statements on needing time to prepare since learning that Thompson planned to testify, the state said that more than seven months after the arrest of Thompson, it still is not ready to go before a grand jury.
Judge Bennett asked the state when it may be ready, prompting ADA Barclay Black to whisper something to Totten before she said the state was still waiting on an expert witness.
JUDGE SAYS DEFENSE CONCERNS ARE ‘NOT FRIVOLOUS’
Before leaving the bench, Judge Bennett spent approximately forty minutes asking questions of both the state and the defense, seeking clarity in their positions. At one point, he did state
he did not view the defense team’s request to have the Court enforce the statute as ‘frivolous,’ as Totten referred to it.
He asked Totten how many times the state could unilaterally cancel before it becomes a due process violation issue. Totten’s answer was that due process rights afforded to Thompson as a law enforcement officer “are not triggered until an indictment is actually presented.” She then said it could be canceled “in theory, an infinite number of times.”
Totten: “There is no urgency to present this case in the next fourteen days….the case is seven months old.”
Judge Bennett: “Another thing I have heard Mr. Johnson say in the past is “Justice delayed is justice denied…”
Totten: “There’s not been any justice denied. To anybody.”
Judge Bennett: “Justice isn’t being delayed?”
Totten: “No. The COVID-19 pandemic has delayed justice.”
The hearing adjourned after Judge Bennett said he would issue a decision later in the day. Defense attorney Robert Persse immediately requested that Bennett consider Certificate for Immediate Review in the event that he ruled against the defense, which would allow the defense team to appeal the decision to the state Supreme Court.
Before the close of business Friday, Bennett denied the request to compel the state to present the case before the grand jury and also signed the Certificate for Immediate Review.
Neither the defense team nor the state have commented on plans for their next steps.
Bennett did not make a ruling on Totten’s request for a gag order, citing limitations on his scope of decision making in the case to the narrow subject of grand jury matters since he swore in the Screven County grand jurors in January. He said any other matter would be decided by Judge F. Gates Peed, the assigned judge in the case.
In her capacity as Acting District Attorney last fall, Totten was instrumental in the decision with the GBI to arrest Thompson a week after the incident occurred, according to GBI agent testimony in court. The GBI charged Thompson with felony murder and aggravated assault in the shooting death of Julian Lewis, a motorist Thompson attempted to stop in Screven County on the evening of August 7, 2020. A pursuit ensued when Lewis fled, leading Thompson to perform a PIT maneuver to end the chase, but when the vehicles came to a stop and Thompson exited his patrol car, he says he heard the engine revving, and believed Lewis was going to use his vehicle to harm him. Thompson fired one shot, striking Lewis in the head.
The GBI has contended that the use of force was not justified because Lewis’ car was disabled and off when agents arrived on the scene approximately two hours after the shooting. The agency arrested him August 14, 2020 – seven days after the incident.
During a preliminary hearing in September, a Screven County volunteer firefighter – who was also the first person to arrive on scene minutes after the shooting – testified that the lights of Lewis’ car were still on when he arrived, a fact he said he was certain of because they were ‘blinding’ him while he was on the scene. ADA Ben Edwards, however, argued that Thompson’s ‘version of events is wholly unsupported’ and speaks to lacking credibility of his story.
In contrast, DeKalb District Attorney Sherry Boston announced in February that a January 2020 incident with striking similarities would not be presented to a grand jury and no further prosecutorial action would be taken.
The complete video of the hearing Friday is here: