FALLS CHURCH, Va. (AP) — A prosecutor has requested a special grand jury investigate the fatal police shooting of an unarmed shoplifting suspect outside a northern Virginia shopping mall after an earlier grand jury refused to issue an indictment.
Carl Crews, an attorney for the family of Timothy McCree Johnson, said he was informed Tuesday by Fairfax County Commonwealth’s Attorney Steve Descano that a judge had approved the prosecutor’s request to empanel the special grand jury.
Descano confirmed Tuesday in a short statement that he requested the special grand jury but declined further comment.
The use of special grand juries is rare. In Fairfax County, the only other time Descano sought a special grand jury was in the case of another fatal police shooting — the 2017 shooting of Bijan Ghaisar by U.S. Park Police officers after a stop-and-go highway chase. The charges in that case were ultimately dismissed by a federal judge.
The empanelment of the special grand jury in the Johnson case comes after a regular grand jury earlier this month declined to indict the officer who fatally shot Johnson.
Johnson was shot and killed Feb. 22 after a security guard said Johnson had stolen sunglasses from a Nordstorm department store. Two officers chased Johnson into a wooded area outside the mall. Both officers fired shots. An investigation determined that one of the officers, Wesley Shifflett, fired the fatal shot.
Police Chief Kevin Davis fired Shifflett last month. He also released dimly lit video showing a nighttime foot chase that lasted less than two minutes. In a slow-motion version of the video, it sounds as though two shots were fired after an officer yelled “get on the ground” but just before shouting “stop reaching.”
After the shooting, the body camera video records Shifflett telling another officer he saw Johnson “continually reaching in his waistband” and that he told Johnson, “Let me see your hands.” But that command cannot be heard on the video.
Police searched for a weapon but none was found.
Caleb Kershner, a lawyer for Shifflett, said Tuesday that he was shocked Descano is presenting the case to a second grand jury. He said prosecutors should respect the judgment of the initial grand jury, which did not find probable cause to bring criminal charges.
“It’s pretty clear they don’t want to respect the law, and they’re going to try hell or high water to get a charge,” Kershner said.
The rules for a special grand jury are different than those for a regular grand jury. Most significantly, in a regular grand jury, prosecutors are absent from the room when police officers present evidence and testimony to the grand jurors.
When the grand jury declined to indict Shifflett earlier this month, it was clear prosecutors had concerns that officers shaded their testimony in a way that weakened the case. Descano issued a statement emphasizing he was not allowed in the room and had no idea what testimony officers gave.
A lawyer for Johnson’s family noted how rare it is for a grand jury to refuse indictments and said he was concerned police were trying to cover up for a fellow officer.
In a special grand jury, prosecutors are in the room asking questions of officers who give testimony, and have more control over the process.
“I believe the commonwealth’s attorney is trying to get control over the case,” the Johnson family’s lawyer, Carl Crews, said in a phone interview. “He’ll now have the ability to be in the room, and present the matter as he sees it.”
Johnson’s mother, Melissa Johnson, said in a phone interview that she “felt like the wind had been knocked out of her” when the grand jury refused to indict last week. Now that new grand jury will hear the case, she said she feels “revived, with renewed hope in the judicial system.”
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