Former DAs say their boss breached ethics, mishandled fatal police shooting of Caroline Small

BRUNSWICK – The prosecutors who watched the fatal police shooting video of Caroline Small had more than a century of courtroom experience — from murder cases to child molestation to rape.

Still, the violence that unfolded on the computer screen shocked them into silence. The video showed eight police bullets piercing the car windshield of the unarmed Georgia mother as she was pinned against a utility pole and surrounded by police cars.

The consensus in the courthouse conference room was that the two Glynn County police officers who pulled their triggers had committed a crime. One DA called for more investigation. A second said it was manslaughter. Another said it was aggravated assault.

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Dashcam video from the shooting of Caroline Small

Several called it murder.

“We were just stunned,” said David Peterson, one of the prosecutors. “We just said, ‘That’s a killing.’ We thought the officers used improper force. There was a sense that something bad here has happened.”

Almost to a person, the prosecutors believed the officers should be indicted by a criminal grand jury. A jury trial seemed certain to follow.

What happened instead derailed the case and fundamentally shook their beliefs in the justice system and the rule of law.

Brunswick District Attorney Jackie Johnson fired one prosecutor for his outspoken determination to prosecute the 2010 shooting, and she excluded the others who best knew the evidence. The case languished for a year before Sgt. Robert C. Sasser and Officer Michael T. Simpson were cleared by a civil grand jury in 2011 amid a series of questionable and irregular legal maneuvers. Sasser and Simpson remain in law enforcement today.

Now four former prosecutors in Johnson’s office have come forward to tell their story of how the case unraveled. They said they were emboldened to speak out after The Atlanta Journal-Constitution and Channel 2 Action News reported in July that Johnson took extraordinary measures to aid the two officers in their defense.

The AJC and Channel 2 reported that Johnson gave the officers the case files almost two months before the grand jury met and allowed defense attorneys to cross-examine witnesses in the grand jury room — unprecedented actions in Georgia grand jury procedures.

The former Brunswick prosecutors say Johnson's actions violated prosecutorial ethics and betrayed her duty to uphold justice. They also say that Johnson had a conflict of interest because she was concerned about damaging her relationship with the Glynn County Police Department and should have disqualified herself from any involvement with the case.

“The way the case was presented to the grand jury was improperly done,” said Keith Higgins, a former senior prosecutor who was in the group that viewed the video. “A prosecutor’s duty is to seek and to do justice. To accomplish that task a prosecutor should do what’s right, do it in the right way and do it for the right reason. Ms. Johnson failed to do any of those in this case.”

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The former prosecutors told the AJC and Channel 2 that Gov. Nathan Deal, Attorney General Sam Olens and the GBI should re-open the case so that it can be presented to a criminal grand jury by an impartial prosecutor. The GBI agent who supervised the investigation in 2010 told the AJC in July that Caroline Small’s killing was the worst police shooting he’d investigated in two decades of work.

Former Glynn assistant district attorney Jonathan Miller resigned in March 2012, in part, because of Johnson’s handling of Small’s case and her overall management of the office. He called the case a tragedy and a miscarriage of justice that still troubles him.

“There’s two little kids out there that don’t have a mama,” said Miller, who lost a primary against Johnson in July 2012. “I never lost my prosecutorial feelings. (Small) deserves her day in court.”

Johnson, for her part, has refused to discuss the case and has declined interview requests since the AJC and Channel 2 started investigating the Small shooting last spring. She again declined interview requests for this story.

“I do not want my words used out of context to compound the tragic nature of this case,” Johnson wrote to the AJC Nov. 12. “I respect the Glynn County Grand Jury’s finding that the officers acted lawfully.”

At a candidate forum in 2012, Johnson said she handled the case properly before the grand jury.

“I don’t control the results,” said Johnson, quoted in the Brunswick News. “I control the process.”

Politics in the DA’s office

In the immediate aftermath of the June 2010 shooting, the Brunswick Judicial Circuit district attorney’s office underwent a change in leadership that influenced how the Small case was handled.

District Attorney Stephen Kelley was appointed to a local Superior Court judgeship months earlier and was set to assume that role July 1. Kelley named an experienced senior prosecutor, David Perry, to be acting district attorney ahead of a special election scheduled for November.

Perry, a former elected DA in Tifton, was serving in the Brunswick circuit as an assistant. But Perry no longer had an interest in politics and declared publicly he would not run to replace Kelley.

Almost from the start, however, the shooting on June 18 thrust Perry, then 64, into the path of Johnson, an ambitious young assistant prosecutor in the office, and Glynn County Police Chief Matt Doering, who was working behind the scenes to help Johnson reach her political goals.

Johnson, who worked out of the Camden County office, announced her intention to run for the DA’s job on June 21, three days after Small was shot. No one in the DA’s office had yet seen the explosive dash cam video of the shooting, although Chief Doering had already publicly stated his view that his officers did nothing wrong.

Within hours of the afternoon shooting, Doering told local Brunswick media that the officers feared for their lives and had no choice but to fire, a version the officers themselves claimed as the case unfolded.

Before he’d seen the video himself, Perry essentially shared the same view. At a meeting with Doering and GBI agents on June 28, he told the agents that he was pro law enforcement and skeptical that the officers had done anything wrong, according to former GBI supervisor Mike McDaniel.

His opinion changed after the GBI showed him the dash cam video at the meeting.

“After reviewing the tape, I felt we needed to treat this as a criminal investigation,” Perry told the Brunswick News. The paper also quoted him saying he planned to seek an indictment from a grand jury.

Doering quickly pushed back, telling a reporter in the same article that he didn’t agree with Perry’s conclusion.

Greg Perry said his father believed Small’s killing was a “bad shooting” and needed to be prosecuted.

A new DA

Johnson also didn’t agree with Perry’s public comments about the case and told Chief Doering that after the shooting, according to sworn statements Doering later gave in a civil lawsuit. Johnson also asked for Doering’s support in her campaign to become the circuit’s next district attorney and wanted him to write a letter on her behalf to then-Gov. Sonny Perdue. Doering wrote the letter.

Perry, meanwhile, had shown the dash cam video to a group of assistant district attorneys that included Peterson and Higgins; Perry’s son, Greg, who was also an assistant DA in the office; prosecutor Jonathan Miller; and an investigator.

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David Perry said publicly in mid-July he planned to bring the case to a grand jury in August, months before the scheduled special election for district attorney.

Three weeks later, however, the case was taken away from him.

On Aug. 9, Gov. Perdue appointed Johnson interim district attorney, replacing David Perry as the acting DA, effective immediately. Law enforcement officials, attorneys and judges attended her swearing in ceremony Aug. 12.

In the written program for the event, Johnson listed officials and luminaries who had been “especially helpful” to her, including Chief Doering and Bart Altman, a friend of Johnson’s who later represented one of the officers in the shooting case.

Prosecution halted, a DA fired

Two days later, Johnson said in the Brunswick News that she had put the brakes on the Small case, which had been scheduled to go to the grand jury that month.

“It will not go before the grand jury and be presented until I have all the facts in front of me,” she said. “I have not seen the case, and I have purposely not seen it. I want to look at that case in totality. I don’t want to do this piecemeal.”

Days after that, she fired David Perry.

After his firing, Perry told other attorneys and relatives that he’d been let go over Small’s case and said that Johnson told him his decisions had adversely impacted the DA office’s relationship with the police department. Perry died earlier this year, but a memo from Johnson in his personnel file backs up what he told colleagues at the time.

“Mr. Perry’s statements to the press created a hostile relationship between our office and the Glynn County Police Department,” Johnson wrote in a memo justifying Perry’s termination. “I also felt they called into question the ability of my office to deal with the case objectively.”

Higgins, a 22-year veteran in the office, had reviewed the evidence in the case and was preparing to help David Perry prosecute it. Once Perry was fired, Johnson never came to review the case file — which was being kept in Higgins’ office — or to ask him about the case, Higgins said. Johnson fired Higgins in November 2010. The case file was still in his office when he left, he said.

“A prosecutor’s duty is to seek and to do justice. To accomplish that task a prosecutor should do what’s right, do it in the right way and do it for the right reason. Ms. Johnson failed to do any of those in this case.”
Keith Higgins, former senior prosecutor

Case goes dark

After she fired David Perry, Johnson said almost nothing about the Small case to other prosecutors in Brunswick.

Peterson said he tried to bring it to Johnson’s attention days after she took office.

A former cop, Peterson told Johnson she needed to prosecute the case for the “95 to 98 percent” of other officers who would never have drawn their guns, let alone shot an unarmed woman in a car surrounded by police cruisers.

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He was startled by her response.

“Maybe you ought to go back to being a police officer,” Peterson said she told him.

Peterson said he tried talking to Johnson about the case one more time in spring or early summer of 2011, but Johnson said little more than that the case was still under review.

“We were frozen out of it,” Peterson said. “That was abnormal.”

The next time Peterson heard about the Small case was in August 2011 when defense attorney Bart Altman told Peterson he would be in the courthouse the next day for the grand jury hearing.

“I told my supervisor, Greg Perry, ‘What the hell is going on?’ Jackie is taking this to the grand jury tomorrow.’” Peterson said. “We knew nothing about it.”

Peterson “knew something was amiss” when he and others tried to look up what charges were being presented to the grand jury and found nothing in the computer system. It was standard procedure for a proposed indictment to be logged into the system prior to a grand jury meeting. He was shocked when the six-hour hearing ended with no charges.

Peterson said he and another employee ran into Johnson’s investigator outside the courthouse the next day.

“What the hell happened?” Peterson said he asked. “How could they not indict?”

According to Peterson, a victims’ advocate in the office, simply said: “That’s wrong. That’s wrong.”

Two weeks later, the advocate was gone. “Jackie fired (him),” Peterson said. “Just kicked his ass out. No notice. That was really troubling.”

“We thought the officers used improper force. There was a sense that something bad here has happened.”
Former prosecutor David Peterson

‘She wanted a specific result’

What happened in the grand jury room was such a mystery that all of the former prosecutors interviewed said they didn’t know the full story until the AJC and Channel 2 published the details in July as part of a broad re-examination of the case

For example, Johnson cut a deal with the officers before the grand jury met. She asked them to waive their right to a 15-day advance notice of any indictment. In return, she agreed not to offer an indictment for grand jurors to consider unless they asked for one. She also allowed the officers to testify at the grand jury even though there was no legal requirement to do so since she wasn’t presenting an indictment.

“I think she wanted a specific result and she got it,” Peterson said. “It’s still never been properly presented to a grand jury.”

They say the way Johnson handled the case in the grand jury demonstrates how her conflict of interest tipped the case in favor of the officers. Allowing the defense attorneys to participate in the proceeding and providing the evidence file beforehand is never done, they said.

“It allowed (the officers) to prepare for a mini-trial,” said Peterson. “We don’t do secret trials in this country. This makes me angry…Who the hell is representing the public? Who the hell is representing Caroline Small? Tell me? Nobody.”

They said they were also concerned that Johnson allowed a factually inaccurate animation of the shooting, created by the Glynn police department, to be presented to grand jurors. The animation showed Small’s car going through the gap and running over the officers, bolstering their claim that they feared for their lives.

But the GBI’s investigators said the recreation depicted a scenario that was impossible, given that Small’s car was hemmed in on all sides and resting on its rims.

“I’ve lost many nights of sleep over it,” Peterson said. “This was a murder and it was covered up. It shouldn’t have happened. It was wrong. It was a killing.”

‘Hard to accept injustice’

The case left an indelible mark on other prosecutors in the office.

Higgins said he broke down in tears one day when he realized the implications of the shooting and its aftermath. The officers’ claims that they feared for their lives did not hold up against the video and the other evidence, he concluded.

“This makes me angry…Who the hell is representing the public? Who the hell is representing Caroline Small? Tell me? Nobody.”

Former prosecutor David Peterson

The extraordinary steps the Glynn police department seemed to be taking to protect their officers from prosecution also disturbed him.

“It has affected me very deeply in that regard in that someone was very brutally killed, unnecessarily, and nothing has been done about it,” Higgins said.

Higgins was so concerned about justice being subverted in the criminal case that he wrote to Small’s family after he left the DA’s office in 2010, notifying them that they needed to act within 12 months of the shooting if they planned to file a civil lawsuit. The family filed and ultimately lost a federal wrongful death lawsuit against the officers.

“I had hoped to be a career prosecuting attorney and as a prosecuting attorney one wants to see justice done,” Higgins told the AJC and Channel 2. “The lack of any action on the case and the way in which it was handled basically eliminated that possibility. It’s hard to accept injustice.”

Greg Perry said his father believed the case needed to be prosecuted, not just presented to a grand jury. But the manner in which Johnson fired him left David Perry with the prophetic belief that would never happen. The case gnawed at him until his death this past February, his son said.

“My dad had a very strong sense of right and wrong — consequences be damned,” said Greg Perry.