The Fairfax County prosecutor is resuming his investigation into the Fairfax police department’s shooting of John Geer in 2013, obtaining the documents that police refused to give him 15 months ago and preparing to make a decision on whether to charge the officer involved, the prosecutor said Saturday.
In his first public comments on the case since transferring it to federal prosecutors in January 2014, Fairfax Commonwealth’s Attorney Raymond F. Morrogh strongly criticized Fairfax County attorneys for what he characterized as obstructing the investigation into the Geer shooting.
“Protecting the county coffers” in anticipation of a civil lawsuit, Morrogh said, “can’t be a factor in a criminal investigation.”
County officials said Saturday that they did not have a protocol in place for handling requests from the prosecutor’s office for internal affairs files at the time Morrogh requested the documents and that a protocol has since been developed.
Morrogh also provided his first detailed explanation of why he sought the internal affairs files of Officer Adam D. Torres, who fatally shot Geer — who was unarmed — while the man stood in the doorway of his Springfield home on Aug. 29, 2013. Morrogh also discussed why he then transferred the case to federal prosecutors when Fairfax police refused to cooperate.
Letters released Friday night by Sen. Charles E. Grassley (R-Iowa) showed that the Fairfax police provided Torres’s internal affairs files earlier Friday and that Morrogh had hired an outside prosecutor to screen the files to ensure that he did not receive any protected material. Morrogh said Saturday that he enlisted Fauquier County Commonwealth’s Attorney James P. Fisher, who obtained a murder indictment against a Culpeper County police officer in 2012, to review the files.
The Justice Department, which is considering whether to file civil rights charges against Torres, said in a letter Friday that it did not object to Morrogh “conducting a concurrent investigation.” The letter from Assistant Attorney General Peter J. Kadzik did not indicate when Justice might rule on Torres’s case, and Morrogh said he also did not know what the department’s timeline might be.
Morrogh said he planned to wait to see if federal prosecutors decide to charge Torres before acting. But “in the event they don’t charge him, I’m going to have to do something,” Morrogh said. “I’m going to have to be ready.”
Also Friday, Fairfax police turned over the Torres internal affairs files to the attorneys for Geer’s family, as ordered by a Fairfax judge in the family’s civil suit against Fairfax chief Edwin C. Roessler Jr. Circuit Court Judge Randy I. Bellows required police to provide the internal files of both their ongoing Geer investigation and of a 2013 incident in which Torres had an angry exchange with a Fairfax prosecutor outside traffic court.
The Geer family’s attorneys declined to comment Saturday.
Bellows’s order opened the door for Morrogh to request the same files, information he had originally sought in November 2013 while trying to decide whether to charge Torres with a crime. Torres told investigators in September 2013 that he fired one shot into Geer’s chest after a 42-minute standoff because Geer quickly jerked his hands from above his head to his waist, police documents released last month show. Four other officers, plus Geer’s father and best friend, all said Geer’s hands were near his head when Torres suddenly fired, their statements show.
Presented with this information by Fairfax homicide detectives, Morrogh turned to the police internal affairs bureau for background on Torres.
“I wanted to know the history of this guy, with respect to what kind of evidence is out there,” Morrogh said. “We’ve been investigating police shootings the same way all the time. In so many, it’s necessary to know the background [of the officer], and they’ve given it to me. In this case, they did not.”
Morrogh said he met with Roessler and an internal affairs captain in November 2013 and was surprised to see three Fairfax County attorneys enter the meeting.
He said the county attorneys told him they would not provide Torres’s internal affairs files in any of his cases, in part because of the “Garrity” ruling that compelled statements given by officers cannot be used against them in criminal cases. Morrogh said he would take steps to ensure that didn’t happen, but he said the attorneys told him to subpoena the files.
Morrogh said he knew, though, that Virginia Supreme Court rules, attorney general opinions and case law all state that a grand jury may only subpoena documents from a person or agency who is “not a party to the action,” thereby excluding specific defendants or their government agency.
The prosecutor said the county attorneys told him if he subpoenaed Torres’s records, they would fight the subpoena, and Morrogh knew they likely would win. Morrogh said Roessler deferred to the county attorneys’ advice on the matter.
“It was unprecedented when this occurred and put a lot of obstruction in this investigation,” Morrogh said. “You’ve got a police department that’s investigating itself, and they’re fighting the prosecutor? How’s that going to look to the public?” He said he, and the police, were tasked with seeking justice in the case and that concern about a possible lawsuit “should be the furthest thing from anyone’s mind in a criminal investigation.”
Morrogh then found that federal subpoena rules were different, asked the U.S. attorney in Alexandria if he would take on the case, and in January 2014 shifted the case there.
Fairfax County Attorney David Bobzien said Saturday that in 2013, “the Commonwealth’s Attorney’s office and the Police Department did not have a protocol in place for handling requests by the Commonwealth’s Attorney for an officer’s [internal affairs] files.” He said both sides recognized that internal affairs investigations “are legally protected,” that a police officer’s internal affairs statements cannot be used against him in a criminal case and that a protocol for prosecution requests has now been developed. But Morrogh said the police had previously provided such files without incident.
In Roessler’s letter to Grassley, the chief stated that he “had a general awareness soon after the Geer incident that Officers Torres and [Rodney] Barnes had different accounts of Mr. Geer’s actions.” But Roessler said that because he must rule on any internal discipline for Torres, he has not read the officers’ statements or other investigative materials, though the county has posted them on the Internet.
Grassley also asked Roessler how often he briefed the Board of Supervisors and what he told them. Roessler responded only that he first met with the board in September 2013, and again “in other sessions” in 2013 and 2014, but he declined to specify what information he provided them.