Jul 1, 2020
Garrett Rolfe Bond Hearing Transcript: Police Officer Who Shot Rayshard Brooks Hearing
Police officer Garrett Rolfe, who shot Rayshard Brooks in Atlanta, had a bond hearing on June 30. He was eventually released on bond. Read the full transcript here.
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Judge Jane C. Barwick: (00:01)
Then I’ll have everyone introduce themselves. Samantha, just let me know somehow that you are ready to start our record. Can someone unmute her?
Speaker 1: (00:19)
Hello, I’m here.
Judge Jane C. Barwick: (00:24)
Okay, great. All right, ladies and gentlemen, this is the State of Georgia vs. Garrett David Rolfe. This is case number 20CP192494. I’m going to ask for some introductions in just a moment. I am first looking for the defendant. And it looks like he’s not quite yet connected. So I’m going to wait just a moment.
Lance Lorizo: (00:52)
We are connected, Your Honor. Lance Lorizo.
Judge Jane C. Barwick: (00:53)
Okay, I’m sorry.
Lance Lorizo: (00:54)
I’m sitting with the defendant.
Judge Jane C. Barwick: (00:55)
Okay. I’m sorry. I saw another microphone for Rolfe. All right. Good. And can you hear me? You are on our screen.
Lance Lorizo: (01:04)
We can, Your Honor.
Judge Jane C. Barwick: (01:05)
All right. Again, I’m going to ask for some introductions in a moment. But I would just like to put a few things on the record as we begin. I’m the presiding judge for this week. I am appearing in courtroom 8A at the Fulton County Courthouse. Our courtroom is open to the public.
Judge Jane C. Barwick: (01:26)
We are, in fact, attended by members of the public today, and by members of media. We also, I understand, have an overflow area open to the public to be able to watch these proceedings. And, therefore, that is because our courtroom seating is limited due to the coronavirus. And we’re trying to accommodate as much of the public interest in this case as possible.
Judge Jane C. Barwick: (01:52)
Everyone involved in the actual hearing itself, besides me and other staff in my office, are appearing via the Zoom video conferencing platform. We’ll discuss a little bit more about that in a moment. And I’m looking around, and everybody is in good compliance, so I appreciate it. But I am going to ask everyone in the courtroom, if you will please continue to wear your masks. So far, you are doing a good job.
Judge Jane C. Barwick: (02:24)
Today’s hearing, as I’m sure everyone involved understands and appreciates, is limited to one issue. And that is the issue of whether or not the defendant in this case is entitled to a bond. I am hearing this case under the authority of code section 17-6-1, which provides that a bond for certain offenses, including murder, can only be heard before a judge of the Superior Court. In as much as this case is not yet indicted, and therefore is not yet assigned to any particular Superior Court judge, our court policy provides that any bond motion filed in a case with such a charge will be heard by the presiding judge. And, for that week, of course, this is me.
Judge Jane C. Barwick: (03:12)
We have a limited amount of time for this hearing. I do not anticipate that we will have live witnesses. All the parties on the Zoom camera right now should be those who have received a specific invitation. You can’t see it, but you are on a larger television monitor here in the courtroom.
Judge Jane C. Barwick: (03:46)
I do want to suggest … Of course, all of us have been involved in a number of Zoom hearings. I am in a situation where my tile does not light up. My border is not going to work when I am speaking, because I’m using the court microphone system or sound system. My experience on this has been that if you need to object or say something, or if I need to ask a question, I am simply going to raise my hand and try to get noticed. And that is about the best that we can do.
Judge Jane C. Barwick: (04:27)
I believe that I have hopefully reminded everyone of our limited purpose today. Counsel are aware of the factors to address. We are not determining the merits of this case today. The first question for defense counsel, and for the defendant, is whether the defendant waives his right to be personally present in the courtroom today.
Mr. Noah Pines: (04:53)
Your Honor, this is Noah Pines speaking on behalf of Garrett Rolfe. And Mr. Rolfe does waive his right to actually be physically present inside the courtroom.
Judge Jane C. Barwick: (05:03)
Okay. And you were ready to go forward via this method?
Mr. Noah Pines: (05:07)
Yes, Your Honor, we are.
Judge Jane C. Barwick: (05:09)
All right. Then the initial burden is on the defendant. Would you like to proceed?
Mr. Noah Pines: (05:17)
Yes, Your Honor. And if I could just give a brief procedural history, Your Honor, and set up the case for the record. And then Mr. Thomas will take over and discuss the factors for bond, if that’s okay with the court.
Judge Jane C. Barwick: (05:30)
Mr. Noah Pines: (05:31)
Your Honor, this is case number 20CP192494. And we are here on a motion for bond that we filed on behalf of our client, Garrett Rolfe. And while this case has been reported in the news, I’d like to just give the court a brief summary of what got us before Your Honor today.
Mr. Noah Pines: (05:49)
On June 12th of 2020, Officer Devin Brosnan, B-R-O-S-N-A-N, responded to a 911 call at a Wendy’s, in reference to a male passed out. Also Brosnan determined that Mr. Brooks was the male who was passed out. And he, Officer Brosnan, asked for assistance in doing a DUI investigation.
Mr. Noah Pines: (06:10)
Officer Rolfe is the one who responded to the DUI investigation. And, in our brief that we submitted to the court, we actually gave you an exhibit, which was exhibit A, which is a rough transcription of the entire exchange between Officer Rolfe and Mr. Brooks, up until the point that Officer Rolfe told Mr. Brooks that he was being placed under arrest for DUI. Or his exact words were, “I think you’ve had too much to drink, put your hands behind your back.” And, at that point, Officer Rolfe attempted to handcuff Mr. Brooks.
Mr. Noah Pines: (06:43)
Your Honor, I don’t know what video evidence the state is going to present. But we would proffer to the court, at the point of Mr. Brooks being placed under arrest, his demeanor changed. He attempted to break away from the officer, Officer Brosnan and Officer Rolfe. He began to fight with the officers. He actually punched Officer Rolfe in the face. He took Officer Brosnan’s taser. He pointed that taser at Officer Brosnan’s head and fired it. The only reason he didn’t hit Officer Brosnan in the face or head is because Officer Brosnan blocked it with his hand.
Mr. Noah Pines: (07:15)
Officer Rolfe then pulled out his own taser and shot twice at Mr. Brooks, as he was still right there with Officer Brosnan. Mr. Brooks took off running, with Officer Brosnan’s taser in hand. At some point turned around, pointed that taser at Officer Rolfe and fired the taser, at which point, Officer Rolfe fired his service weapon at Mr. Brooks.
Mr. Noah Pines: (07:42)
We expect that the District Attorney’s office may try to present evidence that Officer Rolfe kicked Mr. Brooks. We expect that they’re going to show you a still photograph. We’ve asked that they actually present the video, that would show this kick. We deny that Officer Rolfe ever kicked Mr. Brooks. I don’t even know how that’s relevant for bond. But we would ask that they show the video. Additionally, I don’t think any eye witnesses indicated that there was a kick.
Mr. Noah Pines: (08:09)
The DA’s office may also try to state that Officer Rolfe said something like, “I got him,” after Mr. Brooks was shot. That’s just simply not true. And, again, we would invite the District Attorney’s office to play that for court. We’ve already consulted an expert. We’ve determined that whatever was said was not Officer Rolfe.
Mr. Noah Pines: (08:29)
We do know from the video evidence that Officer Rolfe provided emergency medical attention to Mr. Brooks, attempted to save his life. And that’s all captured on video. And then, five days after this incident, before the GBI investigation was completed, the Fulton County District Attorney’s office had 11 warrants sworn out for Officer Rolfe’s arrest.
Mr. Noah Pines: (08:49)
And they are the warrants that are before your court in 20CP192494. And that is felony murder, aggravated assault against Rayshard Brooks two counts, aggravated assault against Melvin Evans one count, aggravated assault against a Danyel, D-A-N-Y-E-L, Killions, K-I-L-L-I-O-N-S, one count aggravated assault against a Michael Perkins, P-E-R-K-I-N-S, one count. Mr. Evans, Killions, and Perkins were in an SUV that apparently was struck by one of the bullets that Officer Rob shot.
Mr. Noah Pines: (09:28)
They’ve also had him arrested for criminal damage to property in the first degree, for the bullet hitting the SUV, and four counts of violation of oath of office, one alleging that Officer Rolfe improperly used his taser, one alleging that Officer Rolfe failed to render aid, one alleging that Officer Rolfe violated his oath by shooting Mr. Brooks, and one that Officer Rolfe failed to render aid according to his oath.
Mr. Noah Pines: (09:58)
On June 19th, Your Honor, the day after Paul Howard held his press conference I believe, or maybe two days after, we filed a motion for bond. That bond motion was originally scheduled for June 23rd of 2020. But, at the state’s request, it was continued to today. We also did file a motion for preliminary hearing on June 23rd, 2020. My understanding, from what we’ve been told from the clerk’s office, is that this court is not conducting … Not just Your Honor, that Fulton County Superior and Magistrate Court is just not conducting preliminary hearings at this time due to COVID, which is one of the reasons why we need a bond.
Mr. Noah Pines: (10:38)
On June 25th of 2020, we filed a motion seeking a written response from the state, as to which 1761 factors they believe applied to deny bond. And since the state didn’t respond, Mr. Thomas will just address all of the factors for the court. And then, finally, yesterday we filed a two page brief with some exhibits for the court to consider.
Mr. Noah Pines: (11:01)
Also, Your Honor, I did provide the court yesterday with three statements. And those statements were from the Georgia Sheriff’s Association, I believe the Police Chiefs of Georgia, and the Fraternal Order of the Police maybe. It was actually the Peace Officer’s Association of Georgia is the third one. And then also a packet of character letters. We sent them to Your Honor, and the district attorney’s office yesterday, so that everybody would have plenty of time to review them before this hearing.
Mr. Noah Pines: (11:31)
So I’m going to turn it over to Mr. Thomas, who is going to proffer and take care of the bond factors. And then, after the state is done, I will finish the argument on behalf of Garrett Rolfe, Your Honor.
Judge Jane C. Barwick: (11:42)
Thank you, Mr. Pines. Mr. Thomas?
Mr. Bill Thomas: (11:45)
Thank you, Your Honor. Good afternoon. As a very preliminary matter, before I get to the bond factors, we have been provided this afternoon with a phone call that the state intends to play, in support of its motion to detain Officer Rolfe without bond.
Mr. Bill Thomas: (12:06)
We’ve reviewed that the phone call is inflammatory. It is not reported to be a phone call from my client, or anyone on his behalf. It contains certain racial epithets. I certainly understand that the rules of evidence are relaxed here, but it certainly had … It has no relevance here. And so we would object to that. I assume that the court has been provided back in advance. But we would lodge an objection to that phone call being played.
Mr. Bill Thomas: (12:45)
With respect to the 1761 factors, Your Honor, first, as Mr. Pines has indicated, we provided a number of character letters to the court yesterday, and to the DA’s office, to the extent that those are not a part of the record. We certainly ask that those be made part of the record. I won’t read those into the record. But I would like to point out that these letters represent a very broad cross section of individuals who know Garrett Rolfe well.
Mr. Bill Thomas: (13:20)
What they speak to is they speak to his character. They speak to his ties to the community. They speak to his professionalism as a police officer. And we believe that all of those letters are relevant in the court’s consideration of the factors, whether or not Officer Rolfe is a flight risk, a danger, or has the risk of intimidating witnesses. Those letters include letters from individuals who are practicing attorneys for the Department of Justice, individuals who have known Garrett, some for a year, and some practically all of his life.
Mr. Bill Thomas: (14:01)
Some of those letters include … And I will just mention a few names again. Again, they’re 28 letters. And I understand that we have a limited amount of time. A letter from William Jordan. Mr. Jordan indicates that he has known Garrett Rolfe since birth. And he has offered to the court that Mr. Rolfe is not a flight risk. Benny Pena, P-E-N-A, was hired as a police officer with Officer Rolfe. They worked together. Officer Pena offers that he has never seen Officer Rolfe exploit any ill will towards anyone. Sergeant Thomas Gleason is a supervisor of Officer Rolfe. Notably, Sergeant Gleason indicates that he has always treated suspects with the utmost respect.
Mr. Bill Thomas: (14:55)
Sergeant Andy Tadbei, and I’ll spell that, T-A-D-B-E-I, describes Officer Rolfe as being thorough, fair, and, again, treating all suspects with respect. Lieutenant Jason Ryan, from the supervisor of Officer Rolfe, describes him as being trustworthy. Donna Reese has known Officer Garrett for 18 years, and, again, speaks to the fact that he would show up to court, that he’s not a risk of flight.
Mr. Bill Thomas: (15:33)
Captain Jessica Bruce, another number of APD, a previous supervisor of Officer Rolfe, describes him as treating citizens with the utmost respect. Jay Nguyen, N-G-U-Y-E-N, has known Officer Rolfe for a year, and talks about him providing financial support when things were difficult for him. Notably, one of his supervisors, a previous supervisor Sergeant Redmond Keeney, describes Officer Rolfe as a rookie, but having … Or when he was a rookie, that he had the character of a veteran. I believe it’s Sergeant Keeney in his letter who describes Officer Rolfe as a person that he, Sergeant Keeney, goes to for professional advice.
Mr. Bill Thomas: (16:26)
Sergeant Major Hlasnicek next. And I will spell that for the court, H-L-A-S-N-I-C-E-K. Sergeant Major is not a member of APD, but instead is a retired Sergeant Major who has known Garrett since he was in high school, when he was in the ROTC program. He describes him as being a pillar of his community, and as committed to serving his community. Terry Walker has known Officer Rolfe since he was 20 years old. He’s a family friend. And, again, describes all of the character traits that we will be discussing today that I’ve previously discussed. Again, not being a risk of flight, again, a pillar of his community, and someone who should receive a bond in this particular class.
Mr. Bill Thomas: (17:29)
Like to talk to you a moment, Your Honor, about Officer Rolfe’s professional career as an Atlanta Police officer. Officer Rolfe is a seven year veteran of the Atlanta Police Department. He’s been a police officer who was hired on with APD when he was 20 years of age. One of the letters that the court has before it describes Officer Rolfe as being the youngest person in his class. He was the valedictorian of that class when they graduated.
Mr. Bill Thomas: (18:03)
In addition to being a certified police officer, Officer Rolfe is one of 200 drug recognition experts in the state of Georgia. Again, one of the letters that is before the court describes the process that it takes to become a drug recognition expert. The person who has talked about this in his letter describes it as a … It’s a chance to a semester in college, with a high failure rate. Officer Rolfe was the valedictorian of his drug recognition expert class.
Mr. Bill Thomas: (18:41)
During his career, his seven year career, he’s received several commendations for his work as an Atlanta Police officer. Notably, in addition to working full time as a police officer with APD, Garrett Rolfe is also pursuing an undergraduate degree at Kennesaw State University, where he majors in criminal justice and psychology.
Mr. Bill Thomas: (19:07)
Because of the situation that he finds himself in, he’s currently withdrawn from classes. But at least until this incident happened, he was attending full time and working full time as a police officer, and maintaining a grade point average of approximately 3.0. We certainly think these things all speak to Officer Rolfe’s character.
Mr. Bill Thomas: (19:34)
With respect to his personal life and family life, it’s important to note that Officer Rolfe is a native of Georgia. He has grown up here and lived here all of his life. And the majority of his family resides here in the Atlanta area.
Mr. Bill Thomas: (19:51)
Your Honor, while I understand that we are not here to decide guilt or innocence, or to address the merits of the case, I do want to talk very briefly about the incident that brings us before the court. This is not a typical scenario for the individuals who were-
Judge Jane C. Barwick: (20:07)
In what connection, Mr. Thomas? Mr. Thomas?
Mr. Bill Thomas: (20:12)
Yes, Your Honor?
Judge Jane C. Barwick: (20:13)
In what connection do you feel that’s appropriate at this point?
Mr. Bill Thomas: (20:19)
What I want to describe is that what occurred … And I know that Mr. Pines has gone over, very briefly, the facts. But I think what is significant, with respect to considering the IALA factors, is that this is not a case where a defendant is before the court, who is alleged to have woke up, decided to go out and commit a crime, and which someone lost their life.
Mr. Bill Thomas: (20:51)
So I don’t think that the merits are relevant for this hearing. But I think it’s significant to note that what occurred here … And, obviously, the state and the defense, we disagree obviously on the merits. But even taking the state’s case at face value, this is not a case of someone who is a gang banger, who decided to go do a drive by shooting. It’s not a home invasion. It’s not a burglary where somebody was killed in the process.
Mr. Bill Thomas: (21:27)
What is significant is this is an officer who was in the performance of his duty, a suspect escalated a situation, and I don’t think anybody disagrees that that’s a fact, and a death resulted. So, again, I think that, again, we’re not here to decide guilt or innocence, and I’m not here to argue that. Certainly, that will take place at another day and time. But I certainly think the factual backdrop that brings us here is significant.
Mr. Bill Thomas: (22:03)
With respect to the IALA factors, Your Honor, again, I have discussed with you the letters that are before the court. It is clear to me from those letters, and it should be clear to the court, that there is no danger that Officer Rolfe, who is a lifelong resident of Georgia, will not appear for any scheduled court appearances.
Mr. Bill Thomas: (22:28)
Officer Rolfe is an officer, a former police officer now, with the Atlanta Police department. The letters all to a person, particularly the ones who described his professional life, have talked about his dedication and professionalism. I think one thing that is significant, with respect to that, is Officer Rolfe is a person whose job required him to appear in court. There’s never been any suggestion that he has not met those obligations to the District Attorney’s office, or to the Solicitor’s Office, and did not show up for court when he was called or requested.
Mr. Bill Thomas: (23:07)
And as this court knows, I know this court has been on the bench for quite some time, but often requires often short notice for individuals to appear in court and to be here. It often happens without a subpoena. And Officer Rolfe has always answered those calls, and has always shown up to do what he needs to do. There’s nothing about Officer Rolfe’s background, or the circumstances of this case, that would suggest that he is not willing to appear. There’s nothing that would suggest he’s a risk of flight.
Mr. Bill Thomas: (23:46)
Notably, in this particular taste, the District Attorney’s office filed I think what some would argue is a somewhat unusual process, by which he was brought before the court and charged. As part of that process, those charges were announced, and he was given 24 hours to turn himself in. Officer Rolfe did that. Not only did he turn himself in within 24 hours, he met that deadline early. If there was any question about his likelihood to appear, and to meet any court imposed obligations in this case, his actions when informed of these charges should alleviate these concerns, as well as obviously his service as a police officer.
Mr. Bill Thomas: (24:37)
I believe all of those facts weigh in his favor. I do not believe there are any facts that would suggest otherwise. And we would ask the court to make a finding that Officer Rolfe is not a risk of flight, and that there is no danger that he will not appear for any court imposed deadlines.
Mr. Bill Thomas: (24:59)
With respect to the threat of danger, again, at the top of this I discussed with the court the circumstances which brings us here. This is not a case where, again, an individual is alleged to have gone out, woke up, and committed some heinous crime. That is not this particular chase. Officer Rolfe is an individual who was engaged in the performance of his duties, that situation escalated, and unfortunately resulted in a death.
Mr. Bill Thomas: (25:34)
There is nothing in his background. There is not a fact related to this case that would suggest he is a danger to any person, to the community, or to property in the community. In fact, the facts suggest otherwise. And, again, I would refer the court back to the letters that we have proffered to the court on his behalf. Indeed, in this case, in terms of threat or danger, I think what is significant from the transcript that the court has before it, is one can see the professionalism in which Officer Rolfe handled this matter, up until, again, the situation escalated, and he was forced to do some other thing. Officer Rolfe is not a threat. He’s not a danger to the community. As the letters indicate, he is a professional at all times. He was a professional that night, at all times, quite frankly. And I would ask the court to find that Officer Rolfe does not pose a significant threat or danger to any person in the community, or any property in the community.
Mr. Bill Thomas: (26:53)
With respect to the third fact, or the significant risk of committing a felony, I certainly believe that the letters speak for themselves. I certainly think that Officer Rolfe’s background, again, speaks for itself. There’s not a hint that there is a significant, and I would dare say any, risk of committing any felony of granted bond by this court. Obviously, Officer Rolfe has no criminal history. And, again, I believe that that factor should weigh in Officer Rolfe’s favor.
Mr. Bill Thomas: (27:31)
Lastly, with respect to intimidating witnesses, again, the IALA factor speaks of a significant risk of intimidating witnesses. I would offer to the court, again, there is no risk of Officer Rolfe intimidating witnesses, given the facts and circumstances of this case. He certainly does not wish to have any contact with any potential witnesses in this matter. Mr. Rolfe has a defense team that is working on his-
Mr. Bill Thomas: (28:03)
… Mr. Rolfe has a defense team that is working on his behalf. There’s no need for him to contact any witnesses, much less intimidate witnesses. I will tell you that Officer Rolfe certainly looks forward to defending this matter and has no inclination to do anything that would impair that or impede that or obstruct justice in any manner. As we clearly maintain his innocence in this matter, we’ll obviously resolve those facts down the road, but certainly there is no significant risk of intimidating any witnesses in this case.
Mr. Bill Thomas: (28:46)
Your Honor, we believe all of these factors really take in favor of the court granting a bond to Officer Rolfe. Again, he’s anxious to begin the process of defending this matter and addressing the allegations made against him, and we have asked this court to impose a reasonable bond in this matter.
Clint Rucker: (29:06)
What does the defense suggest?
Mr. Bill Thomas: (29:10)
Clint Rucker: (29:12)
What type of bond does the defense suggest?
Mr. Bill Thomas: (29:17)
I’m having a little short of hearing, but [crosstalk 00:01:20].
Clint Rucker: (29:18)
I’m sorry. What type of bond?
Mr. Bill Thomas: (29:19)
It was what are you suggesting the bond-
Clint Rucker: (29:19)
What are you requesting? Yes.
Mr. Bill Thomas: (29:23)
Your Honor, what I would indicate is that there’s a co-defendant in this matter that the state in that case agreed to a $50,000 signature bond. That co-defendant with respect to certainly certain elements of this particular case is similarly situated that he obviously is not charged with murder, but he was part of the process that was out attempting to arrest Mr. Brooks that night. He’s similarly situated. If the state believes that what at least the state believed in that case of the $50,000 signature bond was appropriate, we would suggest a $50,000 signature bond from Mr. Rolfe be appropriate in this case.
Clint Rucker: (30:10)
Okay. Will it be Ms. Griffin or Mr. Rucker? Would you like to proceed?
Judge Jane Barwick: (30:18)
Good afternoon, Your Honor.
Clint Rucker: (30:20)
Judge Jane Barwick: (30:22)
Can you hear me okay?
Clint Rucker: (30:23)
I can hear you just fine. Okay. I am like Mr. Thomas having just a little difficulty hearing you clearly, but I’m going to lean forward and see if I can do a little bit better.
Judge Jane Barwick: (30:36)
Clint Rucker: (30:40)
For the record, I’d like to identify myself as Clint Rucker and I’m an executive assistant district attorney in the Fulton County district attorney’s office. I am assisted in this bond hearing by Mrs. Seleta Griffin, who also is an executive assistant DA in the same office. Judge, I appreciate you going through these lengths to get us together. And before I get started with my remarks, I want to say good afternoon to all council that are on the Zoom. I’m only showing five screens on my device, but I am sure there are many more people who are participating. The first thing, Judge, I would like to do is I would like to make some opening remarks, if that would be okay with the court, and then I would like to go over what the statutory and the legal factors are for the court to consider, and then I would like to address in a rebuttal type fashion some of the arguments made by Mr. Thomas and Mr. Pines, and then I would make a short closing statement. And before that I would ask the court as part of my presentation allow me to introduce the widow of Mr. Brooks to make a victim statement, which is allowed under the Victims Rights Act to the court in consideration of the setting of bond in this case.
Judge Jane Barwick: (32:39)
I would hear from her, absolutely.
Clint Rucker: (32:42)
Okay. And Judge, in the very beginning of the proceeding, when you kind of was laying out some protocols for us, did I hear you correctly to say that you were not anticipating the calling of any witnesses?
Judge Jane Barwick: (32:57)
That is exactly what I said.
Clint Rucker: (33:03)
Okay. Just for the court’s edification, the state had prepared to call two witnesses. One would have been an investigator with our office who would have dealt with some of the arguments that were laid out in defense counsel’s brief, and he touched on him kind of very lightly in his argument, although he didn’t really jump in the way he did when he filed his brief. And so as a matter to rebut some of those statements contained in the brief, we had prepared to call the lead investigator from our office who kind of worked this case up. But as I understand it, the court is not going to allow any consideration of those factors, and so we won’t be able to call that witness.
Judge Jane Barwick: (33:49)
I’ll consider a proffer, Mr. Rucker.
Clint Rucker: (33:51)
Okay. All right. Good enough.
Clint Rucker: (33:53)
I don’t think that there is anyone who is participating in this process, Your Honor, that takes the circumstances that bring us here today lightly. I certainly don’t. This is a very important case and it’s a very significant case. I do take issue with Mr. Thomas’s characterization where he says that it’s kind of a case that is a little unusual in its factual scenario. There are many cases like this that the office has investigated through the Public Integrity Unit, and there was nothing unusable about the fact that Mr. Howard decided to file charges prior to the completion of the GBI investigation.
Clint Rucker: (35:03)
In fact, I believe that the opening statement given by Mr. Pines was fairly accurate. I believe that the 41-minute encounter between Mr. Rayshard Brooks, who’s the victim in this case, and First Officer Devin Brosnan and Officer Garrett Rolfe was cordial for the most part. I don’t believe there was any display on the part of Mr. Brooks that would have been violent or antagonistic for those 41 minutes. We do know that during those 41 minutes, Mr. Brooks was actually physically searched, gave his consent to be searched by Officer Rolfe, and that no weapons were found on his person. We do know that at the time that Officer Rolfe attempted to handcuff Mr. Brooks, he did not instruct him as required by the Atlanta Police Department’s standard operating procedures, their policies. When you are effectuating a DUI arrest, you are supposed to instruct very specifically the suspect that he is under arrest, and those words were never uttered by Officer Rolfe. So a situation that escalated very quickly, in my opinion unnecessarily, perhaps could have been prevented with what the Atlanta Police Department teaches in its police academy when it trains its officers is a term that they call verbal judo, meaning you can talk through scenarios to deescalate situations, and that simply was not done in this case.
Clint Rucker: (37:49)
Now, I am not excusing the actions of Mr. Brooks, and certainly if he were here today, perhaps those matters would be taken up under a different kind of proceeding. But what I am here to say is that the shooting of Mr. Brooks in the back by Officer Rolfe was not justified because at the time that Officer Rolfe shot Mr. Brooks twice in the back, Mr. Brooks was not immediately a physical threat to Officer Rolfe in any way. He was running away. The taser was not pointed at Officer Rolfe and he presented no danger to Officer Rolfe. And I’ve heard lots of references from Mr. Thomas about the professional nature of Officer Rolfe’s police experience. I would concur he is a well-trained officer and he had no justification for shooting Mr. Brooks.
Clint Rucker: (39:15)
Now, I do want to say that as it relates to the factors that the court has to consider with respect to this case, my argument to the court would be that we have not been presented with any evidence of Garrett Rolfe’s significant ties to the community. What you have heard by way of proffer and by way of several letters is that I’ve known Garrett Rolfe for a long time, I think he’s a great officer and I don’t think he would flee, but where is the evidence that shows as the case law state?
Clint Rucker: (40:10)
And I would cite the court to specifically cases that we provided in a response brief about two hours ago. In as much as we got the written brief from defense counsel yesterday morning, we tried to put together a response and give the court a couple of cases that we would rely on so that you could perhaps have an opportunity to review them prior to today’s hearing. But one of the factors that is very, very important for the court to consider is contained in the case of Dunn v. Edwards. It’s a Supreme Court of Georgia case. It was decided, it’s well established law, 2002, it’s 275 Georgia 458. And in Dunn, they refer to Ayala v. the State, which has all parties here, I’m sure, are aware is the controlling similar case that deals with the factors or the setting of bonds for a homicide case. If you look at the underneath the opinion under footnote one, headnote three, it says the court stated in Ayala that evidence demonstrating ties to the community would include the link and character of residents in the community.
Clint Rucker: (41:56)
As of this date, there is no evidence to show that Officer Rolfe prior to turning himself in actually lived in our jurisdiction, that he owned property in our jurisdiction, that he has family members that are in our jurisdiction. What I heard is that he is a lifelong resident of the state of Georgia. Where? Is he outside the court’s jurisdiction? Should be not appear in court, that the court would have the power to compel him to come? There’s no evidence of that.
Clint Rucker: (42:37)
The case goes on to say that the employment status and the history of the defendant should be taken into account. And so we know that Officer Rolfe was a seven-year police officer. We know that he was trained in drug recognition. We know that many of his colleagues are very fond of him, but the fact is that the mayor and the Atlanta Police Department terminated Officer Rolfe’s employment within 24 hours after looking at the video tape that we have submitted to the court as part of our responsive brief. It has been described his actions that is as excessive, unnecessary, and actually characterized as murder, and that is because, Your Honor, the video tape is clear.
Clint Rucker: (43:47)
This dispute that Mr. Thomas claims that we have about the facts of the case is really no dispute at all. And I know that we are not here to decide the merits of the case, but the reality is that the strength of the case is strong. It’s so strong that it would provide a motivation for Officer Rolfe to flee this jurisdiction to avoid criminal prosecution. He certainly now has the means, which was not discussed in the defense presentation, because we know that he has received upwards of $250, 000 in cash donations. We have not heard anything about the surrendering of a passport that he may possess or any other conditions that would give the court some confidence that Officer Rolfe would not be a risk to not appear in court. The reality is he does not have a job. He is not employed anywhere else. He has no income or any of the things that traditionally the court would look at that says, “Hey, this guy is a good risk for me if I gave him a bond because he’s got these things that connect him very closely to the community.” We just quite frankly haven’t heard it.
Clint Rucker: (45:27)
The other factors that the court looks at is past history of responding the legal process. I don’t take issue with that, nor prior criminal record, and I don’t take issue with that. But the reason why I brought that up to the court is because when you look at Ayala v. the State, it’s very, very clear. And Ayala says that the burden shifts to the state to show by a preponderance of the evidence that the defendant is not entitled to a bond once the defense has established these close ties to the community.
Clint Rucker: (46:09)
My first argument to the court is that that has not been done, but my rebuttal will be that under Ayala, my contention is that Officer Rolfe poses a risk, a significant risk, in this case, and the risk that I am alleging that he poses is one, he is a significant risk to intimidate and/or influence witnesses should he be granted a bond.
Clint Rucker: (46:52)
What the court doesn’t know is that in this case, the Atlanta Police Department has a policy that all officers sign off to. The policy states that if you are the subject of a pending investigation, you cannot talk to other officers about the investigation while it is pending. In this case, we have executed search warrants and obtain the cell phones for both Officer Rolfe and Officer Brosnan. We have obtained cell phone records for those two cell phones. My investigator, should I have put him up and let the court hear from him, would have said that upon reviewing of those cell phone records for Officer Rolfe, he was able to determine that in the minutes after this incident, there were multiple text messages exchanged between Officer Rolfe and four different Atlanta police officers. My investigator is prohibited from viewing the content of those text messages because Officer Rolfe through his attorneys has refused to turn over the passcode for his phone, despite the fact we have asked.
Mr. Bill Thomas: (48:26)
Your Honor. Your Honor?
Judge Jane Barwick: (48:29)
Mr. Bill Thomas: (48:30)
May we object to that? First of all, that’s a completely improper to comment on a defendant’s right to remain silent. That is a privilege still applies in a bond hearing, and it is just completely improper for the DA’s office in this public forum to mention our client is relying on his constitutional rights to remain silent.
Judge Jane Barwick: (48:51)
Mr. Bill Thomas: (48:52)
So we would ask that you not consider that, Your Honor.
Clint Rucker: (48:58)
May I respond?
Judge Jane Barwick: (48:59)
Yes. Yes, if you heard me.
Clint Rucker: (49:05)
Okay. Does the court have the case that I sent as part of my responsive brief that is entitled State v. Stahl?
Judge Jane Barwick: (49:14)
Clint Rucker: (49:17)
It is a court of appeal case from the second circuit, the State of Florida. It was decided very recently in 2016. This was the holding in the case. The trial court erred by denying the state’s motion to compel the production of the passcode to unlock the defendant cell phone based on the Fifth Amendment privilege because it departed from the requirements of the law, by considering only part of the standard used to determine whether a communication is testimonial and by burdening the state with proving the existence of incriminating content on the defendant’s phone when that was not at issue, and further departed by requiring the state to establish existence beyond the reasonable particularity standard. And that is what I am asking in this case.
Judge Jane Barwick: (50:21)
Asking what, sir? This isn’t a motion to compel.
Clint Rucker: (50:25)
Say it one more time, Your Honor,
Judge Jane Barwick: (50:27)
This isn’t a motion to compel, Mr. Rucker.
Clint Rucker: (50:30)
Judge Jane Barwick: (50:30)
I’m missing the connection.
Clint Rucker: (50:32)
I understand, but as a condition of bond to prevent any intimidation or influence of witnesses, I am orally asking the court to compel if the court is inclined to grant bond that as a condition of bond, we’d be provided with the passcode and not be prevented from evidence, and that Officer Rolfe not be allowed to … conceal is a very strong word, but prevent us from getting the information that we are legally entitled to.
Judge Jane Barwick: (51:12)
Clint Rucker: (51:24)
The court has heard an argument from Mr. Thomas that the letters, the character letters tie him to the community and that he should be entitled to a bond. I would like to point the court to the Statute 1761, where I am sure the court is very aware that that really is an inaccurate statement. There is no entitlement to bond when the defendant is charged with murder. A superior court judge is authorized and may under certain circumstances grant a bond to the defendant if they meet the four factors: that he poses no significant risk of fleeing or failing to appear in court, he poses no significant threat or danger to any person to the community, he poses no significant risk of committing any felony pending trial, and he poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.
Clint Rucker: (52:37)
My first contention is that one, we don’t have significant ties to the community that have been proven by any competent evidence. Secondly, I contend that the secreting of the text messages right after this investigation to other officers potentially in violation of the Atlanta Police Department’s policy would allow the intimidation of witnesses and obstruct the fair administration of justice in this case.
Clint Rucker: (53:12)
Now, one of the other contentions that I’d like to rebut is that Mr. Thomas gave the court a very long list of names of persons who have submitted letters in support of Officer Rolfe by way of attesting to his character. “The way he treats suspects with the utmost respect” was a quote that I wrote down and that he was a veteran police officer.
Clint Rucker: (53:52)
I would state in my place and as part of our responses brief, one of the things we did submit to the court was a still photograph that was taken from a video tape of a witness from the scene. In this case, the state has reviewed upwards of eight different video tapes of this incident. Not all of them have been made public. We also interviewed upwards of eight different witnesses in the case who were there present and witnessed various parts of this incident. Had my investigator been able to testify, Judge, I expect that he would have told you that the video tape was not altered. It was only enhanced, meaning it was zoomed in so you can see it really clearly, and it shows the kicking motion made by Officer Rolfe to Mr. Brooks’s body while he was down on the ground after he had been shot by Officer Rolfe.
Clint Rucker: (55:11)
That does not show good character, Your Honor, that has been alleged by Mr. Thomas. It doesn’t show consistent with those letters that Officer Rolfe treated Mr. Brooks with the utmost respect after he shot him. And what the defense doesn’t know is that a witness at the scene corroborates the video tape. We charged Officer Rolfe with a violation of his oath because his policy states mechanisms that you can use to physically restrain a suspect, and in this case-
Clint Rucker: (56:03)
… physically restrained the suspect. And in this case, they were not followed by Officer Rolfe. The good character that the defense wants you to consider in giving him a bond, I am saying to the court, there is rebuttal evidence to the contrary. And it is captured on video tape, so that you could see it for yourself.
Clint Rucker: (56:25)
And after Officer Rolfe shot Mr. Brooks, and Mr. Brooks went down, the video tape will show you your honor, that it was upwards of two minutes before Officer Rolfe did anything in an attempt to help Mr. Brooks. And it was only after another police officer arrived on scene, that officer Rolfe even went to go get some bandages to try to help Mr. Brooks. What you’ll see on the video tape is that he and officer Brosnan just stand over his body and just look at it.
Clint Rucker: (57:08)
Not professional, not good character. And in violation of the Atlanta Police Department’s policy, which requires in a use of force situation that the officer render medical aid in a timely manner. What is timely of course, ultimately may prove to be a jury questions. My contention is that when you’re standing there watching the man gasp for breath, it doesn’t show me any good character that’s been alleged, that you treat suspects, all suspects with the utmost respect, such that the court can trust you to come back if they gave you a bond. As part of the presentation, your honor, I would have expected my investigator, who for the record is Investigator Donald Hannah, to indicate to the court, that while the court is not here to consider the facts of the case, my contention that the evidence is so strong that Officer Rolfe would have a motivation to avoid a trial in this case, by pleading, sit primarily on the Fulton County DA’s office attendance at the autopsy of Mr. Brooks, was conducted the next day.
Clint Rucker: (58:56)
Wherein the medical examiner indicated that Mr. Brooks was shot twice in the back. I would have expected her to testify here today that Mr. Brookses back was facing the muzzle of the gun at the time that he received those gunshot entry wounds. One went in his upper back, one inch to the left of his spine. The second bullet went in through his left buttocks and came out the front right above his pubic area. The thing that is significant about that is this, the contention by Mr. Pines, in his opening remarks, that officer Rolfe shot Mr. Brooks, right after he pointed the taser at him, is just not supported by the video. And what the medical examiner would have testified very significantly is that Mr. Brooks had his spinal cord hit by the bullet that entered his upper back. And it would have rendered his legs useless. But the video tape shows that Mr. Brooks was some 18 feet away from Officer Rolfe, at the time that he received these gunshot wounds, which was some 15 feet away from where he was when he reached back to deploy the taser that went up into the air. The video shows that Officer Rolfe didn’t even have his gun drawn at the time that Mr. Brooks reached back with his arm and pulled the taser that went up into the air. He waited for his back to turn before he shot. Doesn’t sound like good character to me, judge. And the video doesn’t lie. And so the state is here, your honor, asking the court to deny bond in this matter.
Judge Jane C. Barwick: (01:01:53)
All right, now, Mr. Rucker, if you can hear me, just a couple of questions for the state.
Clint Rucker: (01:02:02)
Judge Jane C. Barwick: (01:02:03)
First of all, assume for the sake of argument that the court would grant a bond, what would the state be looking for?
Clint Rucker: (01:02:18)
$1 million with conditions.
Judge Jane C. Barwick: (01:02:22)
And those conditions, please, sir?
Clint Rucker: (01:02:27)
That’s the defendant is closest to the court, his resonant location and who he is living with. That the defendant would give up the passcode to his phone, that the defendant would have no contact with any officers from the scene, that being the scene at the Wendy’s on June the 12th, 2020. That the officer would turn over any communications, text mails, and emails between himself and other officers since the date of this incident. That the defendant would be fitted with an ankle monitor. That the court would impose a curfew from 6:00 AM to 6: 00 PM and the exceptions would be to visit his attorneys, to potentially work, to potentially worship, or for any medical issue. And if there were instances that required something other than the court’s conditions, that the state and the court would be notified by the defense counsel prior to.
Judge Jane C. Barwick: (01:04:00)
Can I just clarify, when you say curfew, do you mean from 6:00 PM to 6:00 AM?
Clint Rucker: (01:04:07)
He can be out.
Judge Jane C. Barwick: (01:04:10)
Okay. You said a curfew, 6:00 AM to 6:00 PM. Did you mean 6:00 PM to 6:00 AM, so in other words he would be…
Clint Rucker: (01:04:20)
Yes. Yes. I understand what you’re saying. Yes. That is what I meant.
Judge Jane C. Barwick: (01:04:22)
Clint Rucker: (01:04:23)
Judge Jane C. Barwick: (01:04:24)
Clint Rucker: (01:04:24)
That the defendant would turn over his passport. That the defendant would not possess any weapons, no guns, no knives, no rifles. And that the defendant himself, or through any third parties, there would not be any communication with the family members for Mr. Rayshard Brooks, or for that matter any witness in this case.
Judge Jane C. Barwick: (01:05:17)
By that Mr. Rucker, do you mean the defendant, personally? You do not mean his attorneys.
Clint Rucker: (01:05:23)
Judge Jane C. Barwick: (01:05:24)
Okay. All right. Anything else?
Clint Rucker: (01:05:38)
Would the court please hear an impact statement from Mrs. Tamika Miller? And then I would make a few closing statements and then I would be finished.
Judge Jane C. Barwick: (01:05:50)
Okay. Yes, I will. And Mr. Rucker, I assume that you are the victims advocate, has instructed her as to what appropriate for a bond hearing.
Clint Rucker: (01:06:10)
Judge Jane C. Barwick: (01:06:11)
Okay. I will certainly hear from her. And could you please help me find where she is on the camera pile, or the computer?
Judge Jane Barwick: (01:06:23)
Judge Jane C. Barwick: (01:06:24)
Hey. Oh, okay. Hey, Miss Miller. I got you.
Judge Jane Barwick: (01:06:29)
Hello. Hello, everyone. I’m going to do my best without becoming emotional. I’m Rayshard’s widow. I never thought I would be saying that right now. And this is just a lot to take it in for me mentally, physically, emotionally.
Judge Jane Barwick: (01:06:58)
It’s only been a few weeks since my husbands been gone and murdered. And it’s the week before I lay him to rest. My daughters birthday was that week that he was killed. And my anniversary was the next day. It was the next day Father’s Day came up, our wedding anniversary was on the 14th.
Judge Jane Barwick: (01:07:31)
My life has completely turned upside down since this has happened. I’ve been [crosstalk 01:07:44], or even console my children. But I feel today the court would be able to let the defendant bond.
Judge Jane C. Barwick: (01:08:03)
Ma’am, could you say that again?
Judge Jane Barwick: (01:08:05)
The defendant, you guys want to be able to give a decision whether he should be able or allowed to bond. And I say no to it. I say no, because mentally I’m not able to handle it. The defendant has already shown that he a danger to the community. I watched as they kicked my husband and stood on his body and stood on his shoulders, and I can only imagine how scared he was and what he felt at that time. But I feel with even killing him wasn’t enough. It was that they stood there and did nothing when something could have been done and saved him. And at least he could have made it home to his children to his family. And fulfill promises that he made to me and my daughter earlier that day.
Judge Jane C. Barwick: (01:09:46)
You okay, Ms. Miller?
Judge Jane Barwick: (01:09:48)
My family has suffered so much dealing with this and it being public and everything. It’s just been so hard. They know everything. Can I please step away?
Judge Jane C. Barwick: (01:10:12)
Judge Jane Barwick: (01:10:13)
I’m sorry, your honor, can I just have a minute, please.
Judge Jane C. Barwick: (01:10:16)
Of course. Yes. Take a minute.
Judge Jane Barwick: (01:11:40)
I apologize, your honor. I can’t hear you. My husband was [inaudible 01:11:49], just let you know a little bit about him, because nobody got to see who he was. He was a loving, caring, wonderful father and the best husband I could ask for. He had the brightest smile and the biggest heart. He loved his family. He was only 27 years old. And he had so much to live for, so much. Now I’m forced to be a single mother and I’ve ever had to explain to my kids that daddy would never, ever come home. He won’t be a phone call away. I’ll struggle raising my kids on a one parent income. I’ll never be able to get that help, or support that I need since my husband has been taken away. My husband did not deserve to die and I should not have to live in fear, while waiting for the man who killed my husband to be tried in court. This man should not be treated like anyone else who is accused of taking someone’s life without regret.
Judge Jane Barwick: (01:13:41)
Considering the victim, considering the violence, the violent nature of the whole thing. I feel like he had complete disregard for my husbands life. Any other body that was standing out there, because there was three shots fired and only two entered my husband. And it could have been someones else [inaudible 01:14:19] somebody else who could’ve been hurt that day. I thank God that it wasn’t. I can’t sleep at night, because I’m scared. And if he was released, I could only imagine where my mental state would be. I would be so scared, because I don’t know what they would do.
Judge Jane Barwick: (01:14:52)
I can’t even go outside of my house now, because so many people say hateful things. My husband wasn’t perfect, but he didn’t deserve to die. And I’m just so confused, because 41 minutes of a conversation felt like he was being harassed. You could’ve already told him, “Hey sir, we smell it on you. We’re going to write you up for this and that.” And it could have been summed up from there. But instead, I feel like he was harassing, playing with, the whole time.
Judge Jane Barwick: (01:15:50)
Your honor, I’m asking that the bond not be granted due to my health, my mental state. I have to raise my children. I don’t have a big support group. It’s just me and my children. That’s all I have. My best friend has been taken. My health has been taken and never in a million years, I would imagine myself being called a widow.
Judge Jane C. Barwick: (01:16:32)
Ms. Miller. I want to thank you. I don’t know if you can hear me, but I want to thank you for speaking to us today. And I heard you. All right. Thank you.
Judge Jane Barwick: (01:16:42)
Judge Jane C. Barwick: (01:16:45)
Clint Rucker: (01:16:46)
Yes. Thank you, Judge. In conclusion, I would just say to the court that under OCTA section 1761 2E. Amongst other things that the statute lays out for the court to consider, the accused financial resources and other assets, the earnings and income, the financial obligations, the purpose of bail, and any other factor that the court deems appropriate. The setting of bail by superior court judge, as you know, your honor, is discretionary. It is not mandated by law. We are here asking the court to deny bond in this matter. And some factors that the court can consider, is that, one we expect based on Justice Melton’s judicial emergency order, that we would be able to convene grand juries in a few months. And potentially this issue, a bond can be revisited again. We know now from the impact statement that the Brooks family will suffer more emotional car, should the defendant would be granted a bond and allowed to not be in custody. And I would say your honor, that the court can also consider the potential harm to the entire community in the consideration in this matter. If the court is so inclined to set a bond in this case, one additional condition I would ask from the court is that as part of the condition of bond that we know from the experts, that the phone that is in question that I had talked about during my presentation, can be erased, or wiped, remotely. Even though I have physical custody of the phone, it can be erased, or wiped remotely from another location. I would ask the court that condition bond, that that not occur.
Clint Rucker: (01:19:19)
And I want to thank the court for giving us time to make our presentation.
Judge Jane C. Barwick: (01:19:29)
And respond, Mr. Pines.
Mr. Noah Pines: (01:19:33)
Your honor. I do have argument for the court, but I know we’re going a little long and the court has other matters, so is there anything particular you want me to address or may I just respond?
Judge Jane C. Barwick: (01:19:44)
I’m anxious for you to respond. I will say that I did not hear anything with regard to financial ability.
Mr. Noah Pines: (01:19:54)
The financial ability to make a bond, your honor?
Judge Jane C. Barwick: (01:19:56)
Mr. Noah Pines: (01:19:58)
Okay. So Mr. Rucker’s correct that the City of Atlanta did fire Garrett Rolfe, So he did get fired. However, Mr. Rucker did make mention that there has been a fundraiser for Garrett Rolfe, the same way there has been a fundraiser for the Brooks family. These are just people in the public who are donating money. None of that money is in the possession of Garrett Rolfe. It’s either in the possession of the people who raised the money, or escrow accounts.
Mr. Noah Pines: (01:20:28)
But, if the court is not inclined to grant a signature bond, then Garrett Rolfe can make a reasonable bond in this case. Just as a little bit of a comparison, I know that the district attorney’s office says that they’ve prosecuted and are prosecuting other police officers. None of those police officers are still in jail. I believe the last police officer to be released was Officer Burns, who was given a $240,000 bond by Judge Woodson, back when magistrates were giving bonds on murder cases.
Mr. Noah Pines: (01:20:59)
The court’s not inclined to give a signature bond. We would ask for a bond in the range of 50 to $100,000. That being a good bond, either through property surety, or bonding company, or cash, whichever way that the court would like to do that. Obviously we’d rather assurety bond if possible, so that he can use a commercial bonding company. Or as you know, the Fulton County Jail has a 10% program. That’s always an option for the court too.
Mr. Noah Pines: (01:21:27)
But do you want me to address some of the factors, or some of the stipulations that the state would like to put on the bond, or would you like me to address some of the arguments that they made?
Judge Jane C. Barwick: (01:21:38)
Mr. Pines, I’d like you to respond. What you address is totally up to you.
Mr. Noah Pines: (01:21:45)
Thank you. Let me just go back from the beginning. 1761, actually doesn’t talk about ties to the community. It’s not a factor under the statute. It is under Ayala, but through what Mr. Thomas told this court, Garrett Rolfe has tons of ties to this community. He was born here. He was raised here. He went to school here. He was employed here. We did not tell you where he lived. Although, I think that one of the character letters did say that Officer Rolfe did live in the city of Atlanta, at some point prior to this incident.
Mr. Noah Pines: (01:22:17)
But of course, we will disclosing in confidence where he will be living, but we do not want that public for his safety, the same way that the Brooks family doesn’t want their information to be out there in the public. Tremendous guy here. Everything is here in the state of Georgia. If you’d like his passport, we would surrender his passport. That’s not a big deal. The state and its argument is that this is not a justified shooting. It’s clear as day, and therefore he has every reason to run. And so I have to rebut that, because that’s an argument that they made too, your honor.
Mr. Noah Pines: (01:22:57)
Whether a grand jury decides if this is justified, as they’re required to do under the law, when this case is presented. And just so the court knows, Paul Howard in his press conference said that this case would not be presented to a grand jury until January, or February of 2021, because there are seven other cases ahead of it. And that’s in his press conference. But when this case is presented to a grand jury, or a judge during the immunity hearing, or even a jury, there’s a justification defense. And that Garrett Rolfe is in top Title II. And 17420 talks about when deadly force can be used in an arrest. And it says the deadly force can be used for a suspected felon. And in our brief, your honor, we gave you a memo from the Atlanta Police Department that outlines at least four, I think it’s five different felonies that Mr. Brooks committed that night.
Mr. Noah Pines: (01:23:53)
One was punching Officer Rolfe in the face, two was stealing Officer Brosnan’s taser, three was pointing the taser at Officer Brosnan, four, although I don’t know that the officers knew it at the time…
Mr. Noah Pines: (01:24:03)
… Officer Brosnan for, although I don’t know that the officers knew it at the time, well, it’s actually a felony to take a weapon from a police officer. Mr. Brooks was a convicted felon. He can’t possess a weapon, even a taser. And then of course he fired the taser at Officer [Rolph 01:24:14]. So it’s clear that he was a suspected felon. And so the only other indication under the law that says whether our client can use deadly force, is whether the suspect possesses a deadly weapon or any object, device, or instrument which when used offensively against a person, is likely to or actually does result in serious bodily injury.
Mr. Noah Pines: (01:24:36)
And also in the brief that we filed, we attached a warrant, and that warrant was sworn out by the Fulton County District Attorney’s office in another case against other police officers, where Paul Howard and his people… When I say his people, one of his investigators. So, anybody who [judged 01:24:52] something as an investigator for the Fulton County district attorney’s office is doing it for the district attorney, has sworn under oath that a taser is a deadly weapon. So that’s going to be the justification there. There’s a whole bunch more that I’m not going to go into, but that’s the simplest one.
Mr. Noah Pines: (01:25:07)
And so, the state can say that this is clearly not justified, but that’s not for you to determine today. That’s for a grand jury, a different judge during an immunity hearing, where the standard is preponderance of the evidence for us. And then ultimately, if we get that far, a jury to determine beyond a reasonable doubt whether it was not justified. And that’s kind of what Mr. Thomas was talking about when talking about the factors of this case. So the only other factor that the state contended we did not meet was there’s a significant risk of intimidating witnesses or otherwise obstructing the administration of justice.
Mr. Noah Pines: (01:25:47)
Now, I’m not really going to address who Garrett Rolph texted that night. The only witnesses that were there were Officer Brosnan. And if this court orders that he have no contact with Officer Brosnan, then he will have no contact with Officer Brosnan. There’s some police officers that came after the fact, they’re clearly not witnesses, but we have no problem with him not having contact with any other police officer that was on the scene. And there are eyewitnesses. Now, my understanding, Your Honor, is that all of the eyewitnesses are represented by private counsel. I know that Sean Williams represents at least two eye witnesses according to his press conference. Mr. Davis represents, I believe, two eye witnesses. And there’s a lawyer named Kalpin, K-A-L-P-I-N, Shah, S-H-A-H, who represents, I believe, a couple of witnesses.
Mr. Noah Pines: (01:26:37)
So, all those witnesses are protected. Of course, our client, Mr. Rolph, is not going to have any contact with any witness whatsoever. So we have no problem with that. The district attorney’s wants us to give up a passcode for his cell phone. That’s a completely improper argument for today, but here’s what I’ll tell this court. A case in Florida has no application in the state of Georgia. There’s many federal circuit, 11 circuit cases and other cases that talk about this issue, plus no other jurisdiction in the United States except for Georgia, has our rule against self-incrimination. And had Mr. Brooks actually complied with being arrested that night, Officer Rolph would have read them the Georgia implied consent card and asked for a breath test. And according to the Supreme Court, Mr. Brooks wouldn’t even be required to submit to a breath test.
Mr. Noah Pines: (01:27:40)
So if the state wants to try to go get another warrant from another judge, and we can argue whether Officer Rolph has to give up a passcode, that’s an issue for another day. I think it’s completely improper to publicly talk about his right to exercise his constitutional rights. And the DA’s office knows that he’s exercising his constitutional rights because I wrote him a letter that said that. And so, I would ask [Your Honor 01:28:03] to consider that.
Mr. Noah Pines: (01:28:06)
There’s no indication that an ankle monitor is needed in this case. Your Honor, Fulton County, I don’t know how many murder cases you have, and Mr. Thomas said this before, but here’s what I’ll state. If Garrett Rolph isn’t entitled to a bond under the statute, then nobody is. Nobody for a murder case. This isn’t a drug deal where people decide to commit a felony that involves potentially weapons. It’s not an armed robbery where people go out with a gun to rob a store. It’s not a carjacking when you try to take someone’s property. It’s not a burglary where you break into somebody’s house.
Mr. Noah Pines: (01:28:40)
The state’s case at best is that, in a second, in one second, Garrett Rolph made the wrong decision. That’s their case at best. And that wrong decision, according to the state, came directly after Mr. Brooks turned and fired a taser at Officer Rolph. So if he’s not entitled to a bond, I don’t know who is. An ankle monitor is not required, a curfew is not required. We will definitely turn over his passport to the court or to the district attorney’s office. And we have no problem with Officer Garrett Rolph not possessing any weapons, which would include firearms or other weapons. When you say knives, I don’t know what that means. Does that mean you can’t have a steak knife or a kitchen knife, or something like that? And then the last condition they ask for was no contact with the Brooks family members, which we have no problem with either. And I know it’s been a very emotional day for the family of Mr. Brooks, and I’m mindful of that and Mr. Thomas is mindful of that. And Garrett Rolph is mindful of that.
Mr. Noah Pines: (01:29:48)
Police officers wear bulletproof vests to their job because their lives are in danger. And from the transcript that you have in your possession, you could see that Garrett Rolph was completely professional with Mr. Brooks until Mr. Brooks decided to resist arrest and escalate the situation, leaving Garrett Rolph no choice but to use deadly force, Your Honor.
Judge Jane C. Barwick: (01:30:11)
Mr. Noah Pines: (01:30:12)
So I would ask for a reasonable bond with the conditions we discussed. And of course, I’ll answer any questions that you have.
Judge Jane C. Barwick: (01:30:18)
Okay, if everyone will just give me one moment. Okay, now, one thing I’d like to bring up with both sides, and it’s not necessarily a question, but these are charges. I’m so accustomed to talking about counts in an indictment, and I’m not completely clear which charge links up with which particular arrest warrant. So when I talk about individual charges, I’m going to say… and if there’s some code that I’m not reading correctly, please, please tell me, because I’m looking at the booking report, which is the only thing I was able to get off of Odyssey, which is our online docketing system, to actually set out the charges other than the arrest warrants. So I’m going to-
Mr. Noah Pines: (01:31:28)
So, Your Honor-
Judge Jane C. Barwick: (01:31:29)
Mr. Noah Pines: (01:31:31)
I’m sorry. I didn’t mean to interrupt. What I would tell the court is, you are correct. That unlike when there’s typically separate warrant numbers, that would start with an EW for electronic warrant, my understanding is that every warrant in this case is under the following case number, which is 20DA05273, which is a district attorney’s office number that they used on each of the 11 separate warrants.
Judge Jane C. Barwick: (01:31:55)
Okay. Okay. All right. Then that kind of solves that mystery. But as we begin to talk about each individual one, I will talk about each individual one as a charge and then define exactly which charge I’m talking about. That’s the only way I know how to do it. So at this point, let me say the following things. I want to address Ms. Miller. And I don’t know if you’re still on, Ms. Miller. I see that the victim advocate is still on. Ms. Miller, thank you very much. I appreciate your comments today. I cannot imagine. I can’t imagine how difficult that must have been for you to address these things that… And this is exactly what we ask of families to do, to come and participate. But it takes a lot of bravery.
Ms. Miller: (01:32:48)
It takes a lot.
Judge Jane C. Barwick: (01:32:51)
It takes a lot of bravery.
Ms. Miller: (01:32:53)
Yes ma’am, it does.
Judge Jane C. Barwick: (01:32:54)
Okay. And so I want to thank you, and I want you to know that I did hear you. I started this by saying that I have a very limited issue in front of me. And I’m talking really to you, ma’am.
Ms. Miller: (01:33:11)
Judge Jane C. Barwick: (01:33:12)
I have a very limited issue in front of me today, and that issue has nothing to do… I’m going to temper that a little bit in a moment, but that issue is not the ultimate issue in the case, and it is not as to whether this defendant is guilty of these charges. There is a specific set of law with regard to granting bonds in a case, and specific things that the court is to look at. And I’m sure you understand, and I hope you understand, that in our state and in our country, you’re presumed innocent until you are proven guilty by a jury or otherwise.
Judge Jane C. Barwick: (01:33:55)
So I’m looking at this case at a very early part in it, and I would like to make the following comments from what I have seen. And this is all based on [Ayala 01:34:07] and the cases coming out of Ayala. I want to lift up a couple of them to you, which I do want to mention. One is Howard versus the State, which is 197 Georgia appeal 693. That’s a 1990 Court of Appeals case and it predates Ayala, but I don’t believe that its line of reasoning was particularly overruled by Ayala. And then, the same line of reasoning appears in 2008 in Hernandez versus the State, which is 294 Georgia appeals 289, 2008. And I mention these cases and I found these cases specifically, because they do stand for the proposition that, in addition to the Ayala factors, the court can also look at the seriousness of the charges in weighing the bond decision. And so, I think that’s important to take into account here. That’s one thing.
Judge Jane C. Barwick: (01:35:13)
The other point of law that I’m sure everyone understands and knows about is the black letter law that the trial courts, for most consideration when fixing the amount of bale, should be the probability that the defendant, if freed, will appear at trial. And with regard to his being a flight risk, the flip side of that being his ties to the community, the court finds that those ties to the community have been demonstrated to the court’s satisfaction with regard to being not a flight risk. I do want to note that there was a period of time specifically, from June 13th until he turned himself in, when he certainly understood what the situation was. Which I’m not criticizing, but he was given time to turn himself in. And I do think that it is reasonable to assume that a good time to have thought about fleeing would have been those early moments.
Judge Jane C. Barwick: (01:36:33)
I think given his employment history… And I will comment on this, and that is, is that the State criticized the defense presentation to the extent that there weren’t specific… He lived at this address, went to this high school. I have looked through the letters and many of them are from fellow officers, but there’s one from a parent of a friend of his growing up. There’s one from a family friend of 18 years. I wonder whether some of that lack of detail had to do with safety, and I do you find that there is sufficient convincing factors in front of me that he does have sufficient ties to the community and he is not a flight risk. I do not believe that he is a danger to the community in the sense that Ayala sets that forth. I do not think that he is a danger posing any significant risk of committing an additional felony, pending trial. I do not believe that he poses a significant risk of intimidating witnesses, but I will talk about that. And I am therefore going to grant a bond.
Judge Jane C. Barwick: (01:38:08)
Now, I first want to go over the conditions, because the conditions are going to be very specific and they are going to be tailored to this situation. Number one, he will have an ankle monitor. Mr. Rolph is going to have an ankle monitor at his expense. He will be fitted for that prior to his release. He will be subject to being monitored at all times. He will have the curfew. I think the curfew is reasonable that’s suggested by the State, from 6:00 PM to 6:00 AM. And the exceptions that the court would approve would be work, legal, or medical. I think that we have all learned to live, in terms of worship and other issues, I think we’ve learned to live remotely, and that can be accomplished that way. I am going to ask him to, if he has a passport, to surrender his passport. He will not be allowed to possess, own, carry any firearms. That would include rifles, as mentioned by the State.
Judge Jane C. Barwick: (01:39:27)
I kind of join Mr. Pines, I’m not 100% sure what knives mean, but if the use of a knife as an offensive weapon, he’s not going to be doing that. But he will not possess, own, or transport or carry any firearms, weapons, guns, or rifles. Okay. He will not have any contact with other… I think the way that it was put was, certainly no communication with the family members, that I would like to remind everybody, there are three, no four, alleged victims in this case. Correct? So there’s Mr. Brooks, and then there are the three people who were in the SUV, because they have the aggravated assault charges, correct?
Ms. Griffin: (01:40:20)
That’s correct. That’s correct.
Judge Jane C. Barwick: (01:40:22)
Thank you, Ms. Griffin. So, that is the Brooks family and the three other witnesses. So he will not have any contact of any kind with any witnesses or victims, alleged victims in the case. And I think that we all understand, if we need to put it in specifically, but that does not prevent his legal team from investigating the case. But he is not to have any contact of any kind. Let me see where I am here. Ankle monitor. [inaudible 01:40:57].
Judge Jane C. Barwick: (01:40:57)
He will not have any contact with other police officers. I think that’s entirely reasonable. Certainly, if a situation arises which is an emergency, I think that we can all understand the rule of reason, but he will not have any contact with any other officers. [inaudible 01:41:23] I am not doing anything with the passcode to his phone, that is for another hearing. I will say, and anyone can correct me and please correct me on the record if I’m wrong, but I believe that there is an obligation not to destroy, alter, or spoil in any way, any evidence. Is that correct?
Mr. Noah Pines: (01:41:52)
That’s correct, Your Honor.
Ms. Griffin: (01:41:53)
That is correct.
Mr. Noah Pines: (01:41:53)
And we, of course, will not spoil evidence.
Judge Jane C. Barwick: (01:41:56)
Ms. Griffin, you agree with that? Because I agree that he is not going to do anything to that cell phone. So if we need to put that in there-
Ms. Griffin: (01:42:06)
I believe that that is the requirement, that they not destroy or spoil any evidence. They have the search warrant. Even if they can destroy the evidence remotely, the warrant has been served for the contents of that phone.
Judge Jane C. Barwick: (01:42:19)
Okay. So I think we’re saying the same things, that we are now under the obligation on both sides that no evidence be tampered with in any way, correct?
Ms. Griffin: (01:42:29)
That is correct.
Judge Jane C. Barwick: (01:42:30)
Can I get everybody saying correct?
Mr. Noah Pines: (01:42:33)
We agree, Your Honor. We will not do anything with the cell phone. It would be unethical to do that. The State has possession of the cell phone, and we will not attempt to wipe the cell phone. That would be illegal and unethical on our part.
Judge Jane C. Barwick: (01:42:46)
Okay. Now, I think I’ve gone over all of the conditions. And we are going to need to talk in some fashion about where he will reside. But obviously I do not want to go into any specifics at this point, so you have to tell me how we do that. Because that is going to be part of the monitoring and so forth. But I want to talk about the procedure, but I do not want to talk about the location at this point. Okay? Does everybody understand that? Can I get some head nodding?
Mr. Noah Pines: (01:43:19)
Yes, Your Honor.
Speaker 2: (01:43:19)
Judge Jane C. Barwick: (01:43:20)
Okay. Then now, I would like to go over amounts. This is going to be half a million dollars. I’m going to go over the individual amounts with you and how I got to that amount. And that’s why I specifically went through the case law that I cited to you, because this court does not feel this amount is excessive. So let’s go through it, and as I said, I’m going to refer to the charge as it relates to the factual basis of the arrest warrant. Felony murder, $ 250,000. That will be a straight bond. Violation of oath by a public officer, I’m going to tie this one to, didn’t advise that he was under arrest. The bond for that amount will be $20,000 straight bond. Criminal damage to property in the first degree. I believe that was Mr. Evans’ SUV. And this is a felony, correct? The first degree?
Ms. Griffin: (01:44:32)
Yes, Your Honor.
Judge Jane C. Barwick: (01:44:33)
The bond on that amount is $10,000 straight bond. Aggravated assault with a deadly weapon. That is for shooting Mr. Brooks. That will be $35,000. Aggravated assault with a deadly weapon. That is shooting at Melvin Evans. That will be $35,000. Shooting at Michael Perkins, so that’s aggravated assault with a deadly weapon. And the factual basis for that one, I believe, is shooting at Michael Perkins, that will be $35,000. And now this is another violation of oath. I’m going to say this violation of oath is failing to render medical aid. That is $20,000. Aggravated assault with a deadly weapon, and this one would be shooting Danielle Killian’s, and that’s going to be $35,000. Violation of oath by a public officer for shooting at or shooting Mr. Brooks, that is $20,000. Aggravated assault, kicking Mr. Brooks with his shoe, that is $20,000. Violation of oath by a public officer, and that was shooting a taser at Mr. Brooks, that is $20,000. Somebody check my math. I think that all adds up to a half a million dollars. I am going to provide that that is payable through the Sheriff’s 10% program. Is there anything further?
Mr. Noah Pines: (01:46:24)
Yes, your honor.
Judge Jane C. Barwick: (01:46:25)
I should also add that under the Superior Court policy, until this matter is indicted and assigned to another Superior Court judge… It might be me, but I do retain the case for purposes of bond only, any modifications or potential violations. Mr. Pines, were you going to say something?
Mr. Noah Pines: (01:46:56)
Yes, your honor. I have a couple of things. One, the no contact with other police officers. Do you mean any other police officers in the country, or do you mean any other Atlanta police officer?
Judge Jane C. Barwick: (01:47:11)
I mean any other Atlanta police officer.
Mr. Noah Pines: (01:47:14)
Judge Jane C. Barwick: (01:47:14)
I think the point Mr. Rucker brought up, was that once an investigation is… And I’m not really sure. I guess I could let Mr. Rucker speak for himself. But the point that I took was, he just does not need to be discussing this case or having conversations with other police officers. And I’ll say Atlanta police officers. What else?
Mr. Noah Pines: (01:47:43)
The other issue, Your Honor is, who… I mean, I will take one of us, when I say one of us, one of his defense lawyers will take possession of the passport and… [Crosstalk 01:47:52] Is that acceptable to the Court?
Judge Jane C. Barwick: (01:47:54)
He can surrender it to his attorney in trust during the pendency of this case.
Mr. Noah Pines: (01:48:04)
Okay. Whoever has possession of the passport, we will notify the district attorney’s office about that. Okay?
Judge Jane C. Barwick: (01:48:10)
Mr. Noah Pines: (01:48:12)
You talked about the ankle monitor and an address. What we would like to do is present the address to the ankle monitoring company once it’s placed on, and then we will also provide that address to the district attorney’s office, as long as that is kept in confidence.
Judge Jane C. Barwick: (01:48:29)
I don’t see Mr. Rucker, but Ms. Griffin, I see that you’re on here. I’m going to-
Ms. Griffin: (01:48:33)
Yeah, Mr. Rucker lost his wifi connection. I think it’s storming in his neighborhood, but that is fine.
Judge Jane C. Barwick: (01:48:39)
Okay. And Ms. Griffin, I’m going to put in there that it will be confidential.
Ms. Griffin: (01:48:49)
That is fine.
Judge Jane C. Barwick: (01:48:50)
Okay. What else?
Mr. Noah Pines: (01:48:51)
Okay. We will do that. And then the last part, Your Honor, is assuming that the ankle monitor gets fitted and the Fulton County sheriff is satisfied that the bond has been posted, may he be released directly from where he’s being held right now, which is not the Fulton County jail. Obviously, the Fulton County sheriff would have to communicate with… Everybody knows he’s in Gwinnett County, would have to communicate with the Gwinnett County sheriff. The Gwinnett County sheriff would verify the ankle monitor was on, the Fulton County sheriff would verify that the bond has been posted, and then that way he can be released directly from Gwinnett County.
Judge Jane C. Barwick: (01:49:29)
I have no problem with that. Ms. Griffin, do you have any problem with that?
Ms. Griffin: (01:49:34)
I’m not sure that the court could outline that. That is strictly up to the sheriff’s department how they would effectuate his release from the jail.
Mr. Noah Pines: (01:49:44)
I think, Your Honor, if you just put in there that assuming both sheriffs are satisfied that the bond has been posted and the ankle monitor has been placed, that the Fulton County sheriff may authorize… May, not shall, but may authorize the Gwinnett County sheriff to release him directly from custody.
Judge Jane C. Barwick: (01:50:06)
I have no problem with that, if that’s within the Court’s purview. But I think it’s within the sheriff’s office purview. It got handled some way on the intake, and so I would assume that it would be handled similarly on the release.
Mr. Noah Pines: (01:50:24)
Okay. I think if the court just puts that in the order, then it will be acceptable to everybody.
Ms. Miller: (01:50:40)
I will put it in there. I don’t know that it will happen, because if somebody’s-
Mr. Noah Pines: (01:50:40)
Judge Jane C. Barwick: (01:50:40)
Ms. Miller: (01:50:40)
Yeah, we’ll put it in. I will put it in.
Mr. Noah Pines: (01:50:40)
Judge Jane C. Barwick: (01:50:43)
Mr. Noah Pines: (01:50:47)
I believe that’s all I have, Your Honor. Thank you so much for your time, we really appreciate it.
Judge Jane C. Barwick: (01:50:50)
Okay. I appreciate everyone’s-
Ms. Griffin: (01:50:52)
Nothing from the State, Your Honor.
Judge Jane C. Barwick: (01:50:53)
I appreciate everyone’s appearance today. Thank you very much. We’re concluded.
Mr. Noah Pines: (01:51:01)
Judge Jane C. Barwick: (01:51:11)
Thank you, ladies and gentlemen. [inaudible 01:51:11]