Fani Willis was still a candidate for district attorney of Georgia’s largest county when she concluded that the office should not handle the high-profile case against a former Atlanta police officer charged in the fatal shooting of Rayshard Brooks.
This week, in one of her first significant moves as the chief prosecutor in Fulton County, Ms. Willis formally asked the state attorney general to transfer the case against Garrett Rolfe — fired from the Police Department after killing Mr. Brooks on June 12, 2020 — out of her office, along with a separate excessive force case against six Atlanta police officers.
The request throws the process into uncertainty because a new prosecutor will have discretion over how to proceed, if at all, with a case that fueled widespread racial justice protests last summer.
Ms. Willis said she based her decision on the actions of Paul L. Howard Jr., the longtime district attorney whom she defeated last year. Mr. Howard, who obtained arrest warrants in the Rolfe case while he was seeking re-election, used video clips from the shooting in his campaign commercials.
“I truly believe my predecessor’s conduct made it impossible for this office to prosecute the case,” Ms. Willis, a veteran prosecutor who had worked in Mr. Howard’s office, said in an interview.
In a letter to Chris Carr, the Georgia attorney general, dated Jan. 25, Ms. Willis said Mr. Howard’s handling of the case was inappropriate. “I believe his conduct, including using video evidence in campaign television advertisements, may have violated Georgia Bar Rule 3.8(g),” she wrote.
She also cited a criminal investigation of Mr. Howard for his issuing of grand jury subpoenas at a time when no Fulton County grand jury was empaneled. That was either illegal or improper, she said. Collectively, his actions were enough for Ms. Willis to request the cases be transferred from the Fulton County office.
“I believe both matters create sufficient question of the appropriateness of this office continuing to handle the investigation and possible prosecution of these cases that the public interest is served by disqualifying this office and referring the matter to specially appointed prosecutor,” Ms. Willis wrote in a letter earlier reported by The Atlanta Journal-Constitution.
Mr. Howard declined to respond directly to Ms. Willis’s accusations but said in an interview that it was typical for district attorneys to transfer cases of police killings out of their offices.
Mr. Carr’s office said it was “awaiting additional information necessary to initiate the process for appointing a substitute prosecutor.”
Mr. Brooks was fatally shot in a Wendy’s parking lot after an employee called the police because he had fallen asleep in the drive-through. After a sobriety test and a long conversation appeared to be leading to an arrest, Mr. Brooks took an officer’s Taser during a tussle and fled. As he was running away, Mr. Brooks fired the Taser toward Mr. Rolfe, who shot Mr. Brooks in the back.
The shooting came shortly after George Floyd’s death in Minneapolis police custody, adding to widespread protests and a national conversation about racism and policing. Mr. Rolfe was charged with 11 counts, including murder and aggravated assault, and is free on $500,000 bond. The other officer involved was charged with three counts, including aggravated assault.
Mr. Howard charged the officers before the Georgia Bureau of Investigation had completed its investigation, a move that was heavily criticized.
Ms. Willis said a defense motion calling on Mr. Howard to recuse himself weighed heavily into her decision.
The defense motion said Mr. Howard had “systematically” worked to strip Mr. Rolfe of a fair trial. It accused him of making ethically inappropriate statements to the public and said he had a conflict of interest because of the investigation by the G.B.I. into his actions.
Mr. Howard said that when district attorneys transferred police killing cases out of their offices, it was a tactic to avoid accountability.
“You’ll see all kinds of invented reasons that prosecutors come up with,” he said. “If the D.A. cannot prosecute the police, how can the D.A. prosecute fairly the other people in the community?”
While Mr. Howard would not directly say whether he stood by his decision to file charges against the officers in Mr. Brooks’s killing, he said the video evidence was plain to see.
“What happened in the Rayshard Brooks case is frozen in time,” he said. “There is nothing that you could do or perform afterwards that could change what happened.”
L. Chris Stewart, a lawyer representing Mr. Brooks’s family, said they were caught off guard by the news that the case might be transferred.
“Shock,” Mr. Stewart said, describing how he and the family felt after learning about the request through the news media. “We had never received even a phone call from the new district attorney or her office, letting us know she was contemplating that.”
Ms. Willis responded that, in hindsight, she should have had an advocate from her office notify the family.
There was now great concern, Mr. Stewart said, about the future of the case against Mr. Rolfe. Mr. Stewart said he was also worried about what would happen to the charges against the officers involved in the forceful arrest of another of his clients, Taniyah Pilgrim, who was violently pulled from a car along with a college classmate as their vehicle was caught in a protest in Atlanta. Ms. Willis also referred that case to the attorney general’s office.
“Both cases are fully in jeopardy now,” Mr. Stewart said.
His law partner, Justin Miller, said the news had been traumatic for the families of their clients.
“This is just like an additional kick in the face and kick in the teeth to the families of all of these people,” he said. “You want something to be done. And when it gets kicked down the road and you don’t know what’s going to happen, it just puts you back in limbo and starts those bad feelings all over again.”
Noah H. Pines, a lawyer for Mr. Rolfe, said in an email that he was unsurprised by Ms. Willis’s decision because he felt that her predecessor’s actions were unethical and compromised the entire office. He hoped that a new arbiter would lead to a different outcome for his client, he said.
“All the evidence that we’ve reviewed indicates that Garrett was justified,” Mr. Pines wrote about the shooting. “We believe that the G.B.I. report supports our conclusion and therefore any prosecutor who is appointed to this case, without a political agenda, would be inclined to dismiss the case.”
Although Mr. Howard is no longer the district attorney, his actions tainted his entire office in such a way that it would have been difficult to carry out the prosecution fairly, said Clark D. Cunningham, a law professor at Georgia State University and director of the National Institute for Teaching Ethics and Professionalism.
In some ways, Ms. Willis’s decision could give Mr. Brooks’s family and supporters a better chance at getting the justice they want, Mr. Cunningham said.
“The best thing to insulate the further prosecution from that horrible beginning is to hand it to somebody who is disinterested,” he said. “You have a chance for a much cleaner prosecution.”
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