The Constitutional Sabotage Of Caroline Small’s Death

Apr. 21, 2016 (Mimesis Law) — Caroline Small, a mother with a three-year-old daughter, died five years ago when Officer Todd Simpson and Sergeant Robert Sasser of Glynn County, Georgia fired multiple bullets into her car. Small’s killers walked when newly crowned Brunswick, Georgia District Attorney, Jackie Johnson, concocted a grand jury presentment guaranteeing the officers a “no true bill.”

Simpson and Sasser’s boss, Police chief Matt Doering endorsed Johnson’s campaign for District Attorney. That conflict of interest, worthy of Johnson’s recusal leaves me with one question. Did Jackie Johnson sabotage the grand jury presentment of Caroline Small’s death as a “thank you” for Glynn County law enforcement’s political support?

There’s a saying in criminal defense circles that a prosecutor can get a grand jury to indict a ham sandwich if that’s what they want. Try a few cases and you’ll realize how much truth lies behind that statement. These “hearings,” ostensibly designed for a jury of your peers to serve as one last check on the state before you see criminal charges, are an area where prosecutors have almost unlimited control on the outcome. The process already stinks. Adding the odor of political graft just produces a thoroughly revolting stench.

Acting District Attorney David Perry reviewed the dash cam footage of Caroline Small’s murder and publicly announced he would seek an indictment. Jackie Johnson then announced a campaign for District Attorney, which Chief Doering endorsed. His endorsement carried so much weight that Johnson’s “swearing in” contained a “thank you” to those who’d been “especially helpful” to her campaign. That’s common for those seeking elected office. What makes Jackson’s “thank you” so outrageous is her gratitude saw two murderers walk.

Days after becoming District Attorney, Johnson took the case from ADA Perry. She issued a statement refusing to take the case to the Grand Jury until she saw “all the facts” and reviewed the case “in totality.” Once Johnson reviewed the case, she fired Perry and Keith Higgins, another District Attorney working the Caroline Small case. Four former prosecutors spoke out against Johnson’s handling of the case. The evidence doesn’t look good when you consider it from a non-lawyer’s perspective. One might be tempted to throw words around like “backroom deals” when you consider the documents uncovered by an investigation last year.

Officer Simpson and Sergeant Sasser both signed documents waiving service of a proposed indictment per O.C.G.A. §45-11-4(f), which gives “public officers” a chance to review proposed indictments fifteen days before a grand jury gets the presentment. If I’m representing either of the cops, I’m going to want those fifteen days to prepare for whatever the other side potentially has on my client. A chance to review a proposed grand jury indictment would be golden, because I’d get to see what the prosecution wanted to try and indict my client on. It’s the equivalent of reading the other side’s mind, and I’m not telling a single client with a right like that it’s in their “best interests” to waive that right. Unless, that is, I know there’s a favorable response waiting on me.

That favorable response would be knowing the prosecutor’s drafted indictment wouldn’t be what was actually presented to a grand jury. If this document were Johnson’s proposed indictment, and I know that’s not what the grand jury will actually see, I might consider telling my client to waive service. If my client had a chance to take part in the grand jury presentment, I’d consider that incredibly generous since Georgia’s grand jury proceedings are so secretive transcripts aren’t even considered publicly accessible court records. If during that presentment I also get to see the prosecution present exculpatory evidence, my day is a walk in the park. Simpson and Sasser got all these benefits, because they’re cops, and prosecutors don’t want to piss off cops.

Since the Caroline Small grand jury presentment, DA Jackie Johnson has managed to avoid any semblance of impropriety. She’s recused herself from cases with clear personal or professional links to her office. Jackie Johnson won’t recuse herself from one blanket area: cop shootings. That nugget of information is enough for an independent organization to request Small’s case be re-opened and an independent prosecutor take another look at Caroline Small’s death. The problem with that request is regardless of the outcome, it won’t bring Caroline Small back, and it won’t change the bad taste in the first grand jury’s mouth over the outcome.

“We were not handed anything like this,” said grand juror Byron Bennett, while examining the court records he’d never seen, “That’s not right, this should have been presented to us.” Bennett says there was no deliberation; the grand jury took one vote by show of hands. It’s haunted him from the moment he left the courthouse. “I voted the wrong way,” said Bennett, “We failed that lady, we failed the process.”

There’s an old card trick called “Two Card Monte.” In the effect, two red aces are switched out with two black aces held in the spectator’s hand. It’s a great effect, and revolves around an elementary card switch. The problem with “two card monte,” like most card tricks, is the more you think about it, the easier it is to reverse engineer how it’s done. It can’t be said with absolute certainty how Jackie Johnson pulled a switch on the grand jury during the presentment of Caroline Small’s death But coincidence after coincidence revealed in the five years from that “no-true” bill makes one wonder whether one can figure out how Todd Simpson and Robert Sasser escaped criminal charges. Regardless, the presentment was constitutional, as outlined by a line from Judge Lisa Wood’s opinion in the summary judgment decision dismissing a Federal wrongful death suit.

“Was her death necessary? No. Was it unconstitutional? No.”

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