The Justice Department, attempting to explain why there has been no visible movement in the 15-month investigation into the Fairfax County police shooting death of John Geer, says in a newly released letter that Fairfax “withheld materials” from the probe and that there were “a number of challenges in investigating this case.” The letter also says that Justice has not given any instruction to Fairfax not to discuss the shooting, only the federal investigation itself.
The letter is below. It was the second response to Sen. Charles Grassley (R-Iowa), who last month asked five questions of both the Fairfax police and the Justice Department concerning the ongoing investigation. Geer was unarmed and was shot once in the chest as he stood in the doorway of his Springfield townhouse in August 2013 after standing and speaking with officers for 50 minutes. Fairfax police have refused to identify the officer or discuss why the shot was fired, and this week they declined even to reveal his age, length of service and assignment. The Fairfax police general order on release of information after a critical incident states that the department “shall release” such information “unless release may jeopardize the employee’s safety.” Capt. Dorian Portee declined to say why the information was being withheld.
“Incredibly,” Grassley said in a statement Thursday, “it looks like the Fairfax County Police Department resisted the U.S. Attorney’s investigation and lost in court, though the details are unclear. While that explains some of the delay in the case, it doesn’t explain everything. Fortunately, the U.S. Attorney’s letter removes the excuse for not answering questions, since it clearly states that the police department is free to disclose information about the shooting. So, there is no reason to keep the family and the public in the dark. ”
Grassley asked the Justice Department if the Fairfax police “refused to provide to your office any information or documents pertaining to this case — including the personnel file of the officer who allegedly shot Mr. Geer?” Assistant Attorney General Peter J. Kadzik responded, “There have been a number of challenges in investigating this case. Issues concerning withheld materials were favorably litigated by the Department in a court matter that is and remains filed under seal.”
Lawyers familiar with federal proceedings said that response is likely a reference to grand jury proceedings, which are under seal, and an attempt by prosecutors and the grand jury to obtain documents from Fairfax County. Lawyers for the county have advised the Fairfax police to resist prosecutors’ attempts to obtain personnel or internal affairs files on the officers involved, several officials familiar with the case said. Geer’s lawyers said when a federal grand jury sought to subpoena those records, Fairfax lawyers likely fought that in court, leading to the Justice Department’s reference to “litigated by the Department in a court matter” under seal, as nearly all grand jury proceedings are.
“I suspect, but I don’t know,” said lawyer Michael Lieberman, who has sued the Fairfax police on behalf of Geer’s family, “that Fairfax County thought it had some kind of privilege or other reasons to withhold information from the grand jury, they went to court and my read is they lost and had to provide the information. There are other possibilities but they are so remote that this is the most logical one.”
Fairfax Supervisor Pat Herrity (R-Springfield) said of the Justice Department letter, “If the county attorney actually fought providing information and litigated it, I’m going to be very angry. The county shouldn’t be placing hurdles in front of the investigation, they need to be providing information so that the Justice Department can make the correct determination in a timely basis – we owe that to the officer and John Geer’s family.”
The letter also clarifies the timeline in the case: Fairfax Commonwealth’s Attorney Raymond F. Morrogh referred the case to the U.S. attorney in Alexandria in January, not February, which was when he first disclosed the move. Morrogh reportedly also had been seeking personnel or internal affairs records in the case, had been rebuffed by the police, and shifted the case to federal authorities after four months. The Justice Department has now had the case for 11 months.
Fairfax County police did not respond to questions about the letter. Fairfax Board Chairman Sharon Bulova said a written response was forthcoming, which will be included here when it is received. [UPDATE, 4:20 p.m., Dec. 4: Fairfax spokesman Tony Castrilli wrote that, “As the DOJ letter states, certain information was the subject of court proceedings which are sealed by law, but all information sought from our Police Department has been provided…We also are awaiting a conclusion of the investigation and remain committed to our policy not to interfere with or jeopardize that process. " The county declined to answer specific questions about the case.]