This is Part 2 of my story on the decision Wednesday by the Fulton County DA (about to lose his race for re-election) trying a “Hail Mary” pass by charging an Atlanta PD Officer with felony murder — a crime which carries the potential penalty of death.

Part 1 of my story is here: Reports — Atlanta PD Officers Walking off Job Tonight — Murder Charges Filed by Fulton County DA.

Originally Part 2 was going to deal with the felony murder charge filed against Officer Garret Rolfe, and the preposterous nature of that charge given the long history of case law on the subject of a police officer’s use of deadly force in the apprehension of a subject.  Believe it or not, there have been a couple such cases over the years, and the Supreme Court has found time in its busy schedule to deal with the question.

But that is now going to be Part 3 of this story.  As I sat down to write what was going to be Part 2, I continued to watch the press conference where DA Howard said things I would not be surprised to hear coming out of the mouth of a first-year law student — but only if that law student was in the process of flunking his/her Crim Law or Evidence classes — or both.  I then had a chance to catch the interview of the attorneys of the second officer, Devin Brosnan, by Fredo Cuomo on CNN, and later the interview of Off. Rolfe’s attorney on the Laura Ingraham show.  What they added to the factual puzzle here made the commentary of DA Howard during his press conference even more farcical.  Rolfe’s attorney is going to chew up any Assistant District Attorney who tries to bring this case to court.

It’s almost impossible to write coherently about this story because the comments and explanation by DA Paul Howard in the press conference were legally incoherent.  I don’t know which of his idiotic statements to deal with first. Or do I deal with his fabrications?

As a nerdy courtroom lawyer, sometimes things stick out to me when said by another lawyer — things that give me the clear indication that someone has said something to the speaker on the topic which the speaker then repeats, but it’s clear from his comments that the speaker himself doesn’t understand the issue he’s commenting on.  DA Howard had one of those moments for me with one of his more obvious moronic statements about admissible evidence he claimed the law deemed “highly reliable” — evidence referred to as “excited utterances.”

The hearsay rule basically says, in most instances, it’s not allowable for one witness to testify about what someone said to the witness outside of court.  The person who made the out-of-court statement is the “declarant” and the Rules of Evidence require that the declarant be summoned into court to testify to his/her own statements — and be cross-examined about the statements.  Testimony from a third party about what the declarant said is “hearsay” and is generally not allowed.  But there are several “exceptions” to the hearsay rule which do allow third parties to testify about what the declarant said out of court.

“Excited utterances” are a type of statement made at the moment of a “startling event”, when the person making the statement is still under the influence of and reacting to that event, and unlikely to make a comment other than one which reflects his actual observations and reactions to that event.  An example might be if you witnessed a car accident and you shouted “I can’t believe the black car ran the red light!!!”  The Rules of Evidence would probably allow the person standing next to you to testify in a courtroom about what you said concerning which car ran the red light.

But DA Howard’s comment was moronic for the following reason — he said the law recognizes such “excited utterances” as “highly reliable”.  And he described Off. Rolfe as saying “I got him” in the immediate aftermath of having shot Brooks, suggesting that was an “excited utterance” that made it “highly reliable.”

But how is “I got him” relevant to anything?  What does “I got him” prove in terms of factual issues that are likely to be contested at trial?

But that’s not the moronic part of DA Howard’s comment.

An “excited utterance” is considered reliable, and that reliability is why it is okay for a third party to testify in court about what someone else said when what they said was an “excited utterance.”  The reliability is the basis for allowing the statement into evidence without calling the declarant who made the statement to testify.

But DA Howard’s comment was moronic because ALL STATEMENTS made by a “party opponent” — in this case, Off. Rolfe — are considered “not hearsay” and they can all be testified to by third party witnesses whether they are “excited” or not.  When you are a defendant, anything you said to a third party can be testified to by that third party during your trial.  So if Rolfe had said “I got him in a flat or laconic tone, and not “excited,” it would not have mattered. So claiming that Rolfe made an “excited utterance” is meaningless — but you wouldn’t know that by the manner in which DA Howard went about pointing it out during his press conference.

One of two things is true.  1) DA Howard understood that “excited utterances” is an inapplicable and irrelevant issue, and he was simply trying to gaslight the audience watching his press conference by suggesting it was; or 2) DA Howard is an idiot lawyer.  Take your pick.

Now let’s turn to other information that came out today, and review it against the backdrop of DA Howard’s clown show.

The second officer involved in the incident, Devin Brosnan, has now been charged with one count of aggravated assault, and two counts of failure to comply with his oath.  DA Howard could not have been more clear or direct in his statement that Officer Brosnan had agreed to “cooperate” and become a “State’s Witness”.  He said that Off. Brosnan was going to put out a statement in a few days about Off. Rolfe’s conduct, but he was not emotionally prepared to do so today.  Near the end of his comments, DA Howard came back to this point and said Off. Brosnan would be “one of the first APD officers willing to testify against someone in his own department.”

As noted above, CNN’s Fredo Cuomo’s interviewed the two attorneys for Brosnan.  When asked about Howard’s claims, their disgust at DA Howard’s comment was evident.  They said Brosnan had given a statement to investigators and had met with the DA’s office for an interview on Tuesday.  Fredo Cuomo asked if a deal had been made for his testimony, and the attorneys were incensed.  They said Brosnan should not have even been charged, much less talk about whether he should cut a deal.  They said he is not a “State’s Witness” and they have no agreement with DA Howard or anyone else.  They said “He’s a witness.  He’s given a statement and voluntarily sat for an interview.” They said he’ll continue to do both for any legitimate investigation.  If subpoenaed he’ll testify. But to say he was testifying for one side or the other was just a lie.

So, as to the names I called DA Howard in my first story earlier today, we can now add “liar” to the list.

It’s clear that DA Howard thinks he can use the charge of aggravated assault against Brosnan as leverage to get his cooperation.  That charge — according to DA Howard — is based on Brosnan admitting that he stood on Brooks’ body for 6-7 seconds before beginning to give him medical attention.

But Brosnan’s attorneys disputed DA Howard’s claims.  The attorneys said it wasn’t Brooks’ shoulder, it was Brooks’ upper arm that Brosnan put his foot on, and he did so because the Taser was on the ground within arm’s length and Brosnan didn’t want Brooks to reach out and grab it.

They also claimed that Brosnan had been diagnosed with a concussion suffered during the fight with Brooks prior to Brooks escaping with Brosnan’s Taser.  They then added a new fact that I hadn’t seen reported yet — during the fight, Brooks was able to use the Taser on Brosnan, causing Brosnan to collapse forward, landing on his head, and that was how Brosnan suffered the concussion.   Brosnan told other officers and paramedics at the scene that he was still dizzy and seeing stars.  He said in his statement that when he was following behind Rolfe, he didn’t know who was firing when he heard gunshots.  He ducked behind a car in the drive-thru lane for cover, and then made his way over to where Brooks was laying in the parking lot with Rolfe standing over him.  The attorneys said that Brosnan’s statement was that he didn’t even realize at first that Brooks had been shot because of his head injury.  All he remembered was that Brooks had fought with them, he ran off, and then seeing Brooks collapsed in the middle of the parking lot.  The attorneys said DA Howard and his office were uninterested in Brosnan’s medical records showing he’d been diagnosed with a concussion during the Tuesday interview.

On the issue of Brosnan being “one of the first APD officers to testify against someone in his department”, there is an interesting side-story for that as well.  One of the other few officers to already do that very thing was —- Garret Rolfe!!

Rolfe’s attorney said he was previously named in an unlawful use of force complaint, but Rolfe was exonerated by the investigation.  Rolfe then cooperated with the DA’s office in its prosecution of another APD officer, and testified in court against that officer.  That fact never made it out of DA Howard’s mouth today.

Officer Rolfe’s attorney’s website shows he has a law enforcement background, and defending police officers in misconduct cases seems to be his primary area of practice.  The Georgia Fraternal Order of Police Emblem dominates his home page.  I got the feeling from listening to him that he’s going to be big trouble for DA Howard.  He offered nothing in terms of what his client would say by way of explanation of the events.  He focused his attention on all the things shown by the videos that DA Howard ignored during the course of his 45-minute press conference — the unlawful resistance and flight by Brooks, and the use by Brooks of a “lethal weapon” directed at Officer Rolfe.  He noted that in a press conference just two weeks ago, DA Howard had told the assembled media that a Taser was a “deadly weapon” under Georgia law.  That same comment never made it out of DA Howard’s mouth today.

He noted that DA Howard referenced that they were able to use digital enhancement of video to see specific things, and that police officers in a potentially life-or-death situation don’t have the benefit of “digital enhancement” or slow-motion replay to aid their decision-making.  From watching the video and a stopwatch, I found that the time between Brooks firing the Taser back in Off. Rolfe’s direction and Off. Rolfe firing his first shot was 1.6 seconds.

Off. Rolfe’s attorney made one other great point near the end — he flatly denied the charge Rolfe kicked Brooks, and he said that if there was a video of Rolfe kicking Brooks everyone would have seen that video by now.  The still image that DA Howard produced at the press conference was nothing more than a picture of Rolfe with one foot in the air and one foot on the ground.  If it was a video of Rolfe kicking Brooks while he lay on the ground bleeding, DA Howard would have played that for the world to see.  The fact that he didn’t shows that he doesn’t have such a video.

The last video shown by Ingraham was from Rolfe’s body cam, and on it, you can hear Rolfe telling Brooks to breathe and to stay with him until the paramedics arrive.

That video didn’t happen to make it into DA Howard’s press conference either.

Part 3 on the Felony Murder Charge against Off. Rolfe coming later today.