The Lonoke County prosecutor’s office had contact with the Arkansas State Police before and after recusing itself because of an “unavoidable conflict” in the investigation into the fatal shooting June 23 of 17-year-old Hunter Brittain by a sheriff’s deputy.
On July 1, a little more than a week after the shooting, Chuck Graham, prosecuting attorney for the 23rd Judicial District, told the Arkansas Democrat-Gazette that he planned to file a motion for the assignment of a special prosecutor. Weeks later the investigative file was sent to his office, and the state police’s denial regarding the release of body-camera footage related to the shooting cited Graham’s opinion on the issue.
In Arkansas, law enforcement agencies typically investigate cases while prosecutors make the decision on whether criminal charges will be filed. The two government bodies work separately but lean on each other to take criminal cases to fruition. At times, prosecutors will recuse themselves and request a special prosecutor for cases involving law enforcement officers because of the relationship between the two bodies.
Special prosecutors, who don’t have connections to the police agency, are then appointed by the Arkansas prosecutor coordinator, Bob McMahan.
Brittain’s death has received national attention in the wake of other fatal shootings involving police. Brittain’s family retained Ben Crump and Devin Jacob just days after the shooting. Crump and Jacob also represented the family of George Floyd, a 46-year-old Black man who died May 25, 2020, while in police custody in Minneapolis. One officer was convicted of murder in Floyd’s death.
Crump previously released a statement that Brittain was shot three times by Lonoke County sheriff’s Sgt. Michael Davis after Brittain exited his truck to put a blue plastic bottle of antifreeze behind a wheel because the vehicle wouldn’t shift into park. According to family members, Brittain had been working on the vehicle’s transmission and was taking a test drive when he was stopped by Davis.
Crump questioned Graham’s involvement in the case in response to inquiries Wednesday by the Arkansas Democrat-Gazette.
“If there is a conflict of interest that exists and you are aware of that conflict of interest and you participate then it certainly would appear to the public that there is a hint of impropriety,” Crump said.
Davis retained Arkansas attorney Robert Newcomb after being fired for what Sheriff John Staley described as a policy violation for failure to turn on his body camera in a timely manner.
During the early morning hours of June 23, Davis spotted Brittain driving a vehicle that was smoking heavily and an engine that was knocking, Newcomb said Wednesday. Brittain turned into a lot off the highway and jumped out of the vehicle, which was rolling backward, Newcomb said Wednesday. He said Davis gave verbal commands directing Brittain stay in the vehicle.
“The young man jumped out and ran to the back of the car and stuck his hands into the back of the vehicle and still wasn’t responding to any verbal commands,” Newcomb said. “It makes you concerned that they are looking for a weapon.” Newcomb said he isn’t concerned by Graham’s involvement with investigators.
“You could always say Mr. Graham should have stepped away immediately but that is hindsight,” Newcomb said. “I don’t think he did anything that clearly prejudiced Davis’ rights in the case.”
CLOSE TIES
Graham filed the motion for a special prosecutor on July 8, a week after a conversation with the Arkansas Democrat-Gazette. He claimed in documents filed in Lonoke County Circuit Court that Davis “has had a very close working relationship with most members of the prosecutor’s office and has recently testified for the state in at least one jury trial.” The motion was granted by 1st Division Circuit Judge Barbara Elmore the same day.
The next day, the Arkansas State Police passed the investigation file to Graham’s office.
“I never touched it,” Graham said when asked about the file. “I was working from home. My chief deputy hand carried it up to Bob McMahan.” On July 14, two weeks after Graham first announced his recusal, the Arkansas State Police denied the Arkansas Democrat-Gazette’s Freedom of Information Act request for body-camera footage, saying the video is part of an active investigation.
The email went on to state, “Chuck Graham, Lonoke Prosecuting Attorney, has further opposed the release of the body camera footage related to this incident at this time.” When asked by the Democrat-Gazette, Graham confirmed that he continued to communicate with the state police agency up until filing his recusal.
“I do all the on-call stuff,” Graham said in a phone conversation last week. When asked what that might include, he said, “Not much for the state police. They know exactly what they are doing.” A Freedom of Information Act request for communication between Graham and the Arkansas State Police shows there was some contact between the two agencies between the time of the shooting and Graham’s recusal.
On June 24, Graham sent an email to state police special agent Robert Middleton saying, “Per our phone conversation, we will not be releasing the body camera video of the recent Officer Involved Shooting in Lonoke County at this time. Call if you have any questions.” Graham sent a text the next day to an unknown person in the police agency saying, “I’ve got you in my phone, call me anytime. Chuck.” Text messages sent later that day and on June 28 were redacted by the state police agency.
On July 1, hours after Graham told the Democrat-Gazette that he planned to recuse himself, someone with the state police texted, “Time for a call?” Graham responded, “Yes sir, anytime.” Last week, Graham said it took time to figure out if he was going to recuse from the case.
“ No. 1, we don’t have situations like this very often,” he said. “Honestly, I try to do the right thing. You tend to know almost all the officers, it doesn’t mean you recuse on everything.” Graham refused to comment further on the communications when asked by the Democrat-Gazette on Wednesday. He said he should refrain from talking about the case because special prosecutor Jeff Phillips, prosecuting attorney for the 5th Judicial District, was named July 12.
Phillips was passed the investigative file by the coordinating office July 15, according to an email from McMahan.
CALLS FOR FOOTAGE
Neither Brittain’s nor Davis’ attorneys are supportive of Graham’s decision to withhold body-camera footage.
“Hunter’s family is already distrustful because they haven’t gotten any answers whatsoever,” Crump said. “They think that it is not appropriate for anybody who has a conflict of interest to weigh in and deny them due process of a fair and impartial and completely independent investigation as to what happened to their child.” Newcomb said he wasn’t concerned with the file being passed to Graham.
“The only thing that bothered me is that they checked with Graham and they wouldn’t let us look at the video,” Newcomb said. “I can’t speak to what different offices’ practice are. This is my opinion.” Crump said a proposed bill that is being referred to as “Hunter’s Law” would include a mandate that body cameras be active during interactions between police and civilians and that those videos be released immediately to the public.
Kwami Abdul-Bey, legislative/political action chairman for the Jacksonville branch of the NAACP, said the measure would include a position at the Arkansas attorney general’s office that would be responsible for investigating police shootings or brutality cases.
“It won’t require a recusal,” Abdul-Bey said. “It will be automatic.” Abdul-Bey said prosecutors’ involvement in police-shooting cases has faced increased scrutiny since Little Rock resident Bradley Black-shire was fatally shot by officer Charles Starks on Feb. 22, 2019.
“We definitely have been trying to come up with a way, when a citizen dies by law enforcement, for there to be an additional route to investigate that, that doesn’t involve any of the agencies that work with the officers,” Abdul-Bey said. “Sadly there is not really anyone who we can point to here in Arkansas who is a ‘quote and quote’ expert who can talk on this because it is untreaded territory right now. But we are going to change that.” Alissa Marque Heydari, deputy director for the Institute of Innovation in Prosecution at the John Jay College of Criminal Justice in New York City, says it is recommended that if a prosecuting office is involved in an investigation, the office is staffed by prosecutors and investigators who are completely internally separate from the rest of the office.
“They should have no interaction with police officers because that can create a sense of bias,” Marque Heydari said.
She said that is easier for larger prosecuting offices to implement.
“This is the ideal,” Marque Heydari said. “We acknowledge that is going to be much harder in a smaller office.” The institute released a tool kit in 2019 to help prosecutors when addressing officer-involved fatalities. A key piece to the kit involves prosecutors clearly outlining decisions for the public.
“Every state, every locality, is different,” Marque Heydari said. “That is why it is very crucial for prosecutors to be as clear and transparent as they can be.” James Golden, a professor of criminal justice at the School of Criminal Justice and Criminology at the University of Arkansas at Little Rock, echoed Marque Heydari’s comments. He said each prosecutor’s office has to make its own determination on how to handle police shootings.
“Larger agencies might not have the day-to-day contact with individual investigators, which you find in a small prosecutor’s office,” Golden said. “I’m not sure we could set a policy at the national level that could cover all circumstances.” Prosecutors are held accountable by elections, Golden said.
“If they make the wrong determination, there is a good chance they will not be reelected,” he said.