GBI investigating Fulton DA’s use of subpoenas in Rayshard Brooks case

Five days after Brooks' shooting, the Fulton DA's office charged Rolfe with felony murder and 10 other criminal offenses. Attorneys for Rolfe, who is free on a $500,000 bond, contend the shooting was justified because Rolfe was acting in self-defense.

A subpoena issued June 13 to the Atlanta Police Department’s open records office directed an APD official to appear at the Fulton courthouse before the grand jury on Tuesday. APD was to provide a copy of its open investigation into Rolfe’s “use of force incident,” the subpoena said.

As it turned out, that was never an issue. The DA’s office withdrew the subpoena before a city official was to appear before the grand jury, Michael Smith, a spokesman for Mayor Keisha Lance Bottoms, said.

But if the grand jury was not sitting at the time the subpoena was issued, that could be a problem. Under Georgia law, a person who misuses a subpoena could be found in contempt of court, ordered to spend up to 20 days in jail, and face a $300 fine.

Grand juries are impaneled for what’s called a term of court, which in Fulton is typically two-month intervals beginning on the first Mondays of January, March, May, July, September and November.

A series of statewide judicial emergency orders signed by Chief Justice Harold Melton prohibits courts from summoning people to sit on grand juries at least through Aug. 11. Exceptions to this include grand juries that had already been impaneled during a previous term of court or were recalled under conditions that allowed for social distancing and other protective measures.

In March, before the coronavirus pandemic shut down much of the court system, Fulton had impaneled two grand juries — one for regular cases and another to evaluate public corruption cases, according to court records.

But as of mid-April, the DA’s office had told the court that the impaneled grand jurors had been dismissed with no return date, Fulton Superior Court Chief Judge Christopher Brasher said.

In a statement issued Friday, Howard acknowledged “there has been much confusion about whether my office legally issued a grand jury subpoena on June 13.” That’s because it was assumed no grand jury was in existence on that date, he said.

But further research by the DA’s office determined that while the regular grand jury had been dismissed, the one for public corruption cases was still in existence, Howard said.

Howard stopped short of saying a grand jury had formally approved the subpoena in question and noted the public corruption grand jury can only return to the courthouse when the judicial emergency order is lifted. Instead, he said, there is a grand jury “which would be authorized to affirm the issuance of a subpoena.”

Atlanta criminal defense attorney Bruce Harvey, who is not connected to the case, said Howard has a problem with regard to that subpoena.

“There isn’t a grand jury physically meeting now and a grand jury did not, in fact, issue that subpoena,” he said. “That subpoena is plainly illegal.”

Noah Pines, one of Rolfe’s lawyers, said Howard has “mistated both the facts and the law” since he held his press conference announcing the criminal charges in the Brooks case. “Instead of making up different excuses to justify his actions, Paul Howard should accept responsibility for his actions and admit that the subpoenas were not issued in compliance with Georgia law,” Pines said.

It’s unclear how long the GBI inquiry will take. In May, the agency began a criminal investigation into Howard’s use of People Partnering for Progress, a nonprofit he headed as CEO. In both 2014 and 2016, the city of Atlanta wrote $125,000 in checks to PPP, which then wrote checks to Howard totaling $195,000 over a five-year period.

In prior statements, Howard has said the city approved the money to supplement his DA’s salary. He also said he expects to be fully exonerated.