As the silence and the delay mount surrounding the Fairfax County police shooting death of John Geer in August 2013, Geer’s family has always had one question: Why won’t anyone tell us what happened? Forget about charges and liability and grand juries. Just, Why?
The Post has now learned that the case, handled by the U.S. attorney in Alexandria since January, was recently shifted to the Justice Department’s civil rights division for further review, officials close to the case said. If the local authorities intend to wait until a ruling comes from there, where the Trayvon Martin shooting from February 2012 is still under consideration among others, the wait could be much much longer for the Geer family.
The Fairfax police and prosecutors have released nothing beyond this press release 15 months ago: Upon responding to a domestic dispute, and being advised that Geer had guns in the house, officers spoke to him calmly in his doorway for 50 minutes, and then fired one shot “that struck the man,” killing him. The press release did not note that Geer was not armed. Geer’s parents, his partner of 24 years, and his two teenaged daughters expected that they would soon learn the rest of the story. Why was a shot fired? By whom?
There is no law against discussing a case while it is still under investigation, and the Justice Department said in a letter released last week that it has not advised the Fairfax police not to discuss the case. The police have an internal policy of not discussing such cases while they are pending, and Chief Edwin C. Roessler Jr. has decided not to make an exception in the Geer shooting. On the advice of the Fairfax County attorney’s office, headed by David Bobzien and his top assistants on this case Cynthia Tianti and Karen Gibbons, the police said they will not even release the age, length of service and duty assignment of the officer involved, which police policy states “shall be released” unless it jeopardizes the investigation, and Fairfax has done so in previous cases.
The officer’s name also has not been released and he has not spoken publicly. He is waiting too, for a ruling on his fate. His lawyer, John Carroll, said Friday he could not discuss the case.
Who could solve the information stalemate? The Fairfax Board of Supervisors, who, with one exception, have sat silently throughout the case. The supervisors hire the police chief and oversee the department. But the board, on the advice of the county attorney, will not help the Geers. I asked each of the nine supervisors last week about their view on releasing information about the case to the dead man’s family. Four did not respond. One, Supervisor Pat Herrity (R-Springfield), stood up for transparency and criticized the guidance the board has gotten from the county attorney throughout the case. Then on Friday afternoon, the board and Chairman Sharon Bulova released statements expressing frustration with the length of the investigation, and ignoring the issue of simply disclosing the facts of the case.
Herrity has been the most vocal about resolving the case and informing the family. But he is only one supervisor. “The police and the county attorney report to the Board of Supervisors. They do not, however, report to me,” Herrity said. “However I believe there is no reason we should not be releasing basic details, that as you have pointed out that even our policy allows – age, years of service and work location. I have asked the county attorney for an explanation as to why they are not providing that information. The board did instruct the county attorney to provide information to Justice, but I believe the instruction came too late. Both the officer and the Geer family deserve a timely resolution in this matter and the county should not be throwing up roadblocks in the investigation.”
Herrity was referring to the Justice Department’s letter to Sen. Charles Grassley (R-Iowa), who last month asked both the Fairfax police and the Justice Department what was taking so long with the case. The Justice Department said Fairfax had “withheld documents” which caused litigation, likely related to a secret grand jury investigation. “I’m not an attorney but I’m not sure the board is getting the best advice,” Herrity said.
“Fortunately,” Grassley said last week, the Justice Department’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. ”
On possibly releasing information, Supervisor Penny Gross (D-Mason) said, “As an elected official, I try very hard not to compromise the integrity of any investigation, whether a police shooting or a traffic accident. Justice is not served by elected officials inserting themselves into criminal investigations.”
Supervisor John Foust (D-Dranesville) said, “I understand if they aren’t satisfied with the lack of information they are getting. No one wants to do anything to jeopardize a possible criminal prosecution. However, this process needs to be made more transparent going forward. I believe most, if not all, of the Supervisors are committed to making that happen.”
Supervisor John Cook (R-Braddock) said, “By law we can’t release information that is part of an investigation while the investigation is still open.”
Chairman Sharon Bulova (D) said, “The Geer family and the community deserve information and closure,” but she would not commit to assisting with that.
The board’s joint statement on Friday said, “the Board of Supervisors also will not compromise the integrity of a criminal investigation by inserting themselves into that process.” Supervisor Michael Frey (R-Sully) said he agreed with that. Supervisors Catherine Hudgins, Jeff McKay, Gerald Hyland and Linda Smyth did not respond to requests for comment, nor did top police commanders. No one has explained how, exactly, releasing information after 15 months would jeopardize an investigation.
There are many good reasons to keep the details of any criminal investigation confidential, obviously: not tipping your hand to the suspects, not saying something that could hurt you later, and not unfairly defaming an innocent person, to name a few. But here the situation is different: the suspect is an agent of the government, the victim does not appear to have posed any threat, and the case has been thoroughly investigated for far longer than any standard, seemingly out-in-the-open homicide. Meanwhile, an innocent family suffers its second holiday season without a son, a partner, a father.
In interviews with me and Peggy Fox of WUSA-9, Herrity made it clear that the county attorney’s office is calling the shots here, strongly advising both the board and the police to remain silent. This is not unusual advice from a lawyer in a potential criminal case. It was also the county attorney’s office which resisted prosecutor Morrogh’s request for internal affairs or personnel records of the officers involved, several officials familiar with the case said. Employees are entitled to some privacy in their personnel records, and some lawyers pointed out that an officer could sue Fairfax if his records were wrongly released.
But here, it appears that Morrogh was trying to circumvent the problem prosecutors often face in charging a police officer with a crime, whether in Fairfax or Ferguson. Prosecutors in Virginia must prove that an officer had malicious intent or recklessness while acting in the line of duty, and if an officer reasonably believed — even wrongly — that he was in danger, the shooting is legally justified. Morrogh, probably with reason, sought the officer’s records to possibly show a pattern of recklessness or disregard for safety. The county attorney advised the police to refuse, numerous officials have said. So Morrogh shifted the case to federal prosecutors, who could then subpoena the records.
Officials familiar with the case said federal prosecutors did that, and again the Fairfax county attorney resisted. According to the letter sent by Justice to Grassley, the measure was “favorably litigated by the Department.” That letter also said that once the investigation concluded in Alexandria, the U.S. attorney’s office and the criminal section of the civil rights division “will promptly make a decision on the appropriateness of pursuing criminal charges in this case.”
Meanwhile, the police and Fairfax county attorney’s resistance to relinquish internal affairs information cost the Fairfax prosecutor an entire criminal case on Friday. A Centreville man was facing trial on felony charges of malicious wounding of a police officer and two counts of assault on a police officer. In early September, a Fairfax circuit judge ordered Fairfax prosecutors to review the internal affairs file — the fight between the man and the three officers had resulted in a “use of force” internal investigation — and provide any relevant documents to defense attorney Peter D. Greenspun, court records show. But the police resisted allowing the prosecutor to see the file until early December, Greenspun said. On Friday, three months after the deadline to provide the information to the defense, Fairfax Circuit Court Judge Jane Marum Roush threw out the entire case against the man accused of assaulting three police officers.
The Geer family has tried another avenue to obtain information: a civil lawsuit against Fairfax County, filed shortly after the one-year anniversary of the shooting. So far it has produced nothing, court records show. The family’s lawyers, in one instance, made 100 requests for pre-trial documents and information. The county attorney’s office responded with 100 objections.
Previously in The Post:
Editorial: The unaccountable death of John Geer