Attorneys for Fmr. Trooper Thwack DA’s Rationale for Abruptly Canceling Grand Jury Presentment

Defense attorneys for former GSP Trooper Jacob Thompson accused the state of positioning itself to ‘grand jury shop’ after the District Attorney’s Office abruptly canceled its plans to present the case before a grand jury Monday. 

Thompson’s case was scheduled to go before the grand jury on January 11, 2021 at 2:00 p.m., as he faces one count of Felony Murder and one count of Aggravated Assault stemming from an officer-involved shooting in August of 2020. 

GRAND JURY PRESENTMENT CANCELED 

Documents show that in accordance with the law, defense attorneys notified the District Attorney’s Office for the Ogeechee Judicial Circuit on Friday that Thompson would assert his right to testify before the grand jury the next business day. Notification was sent at 2:23 p.m., but  emails now included as exhibits show that two and a half hours later – at 4:59 p.m.-, District Attorney Daphne Totten notified the defense that Thompson’s case was no longer scheduled for presentment. 

Totten, who was sworn in two weeks ago for her first term as the elected DA, cited ‘potential legislation coming’ from the legislature and a dramatic increase in the number of cases to be presented before the grand jury in Screven County, which was set to convene Monday. Totten said in her email that the state planned to prioritize jail cases first. 

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But the defense team contended through a formal motion filed early Monday that Totten’s justification is easily refuted and was not consistent with statutes on due process. 

MOTION FILED MONDAY

An ‘Emergency Ex Parte Motion to Prevent the State of Georgia From Grand Jury Shopping’ was sent to Superior Court Judge Lovett Bennett for consideration and filed in the Screven County Clerk’s Office on Monday morning. Thompson’s defense team, which is comprised of attorneys Duff Ayers, Keith Barber, Sam Dennis, and Robert Persse, argued that the state had a duty to proceed with the case while simultaneously citing evidence to dispute Totten’s claims.  Included in the motion was a Screven County jail roster from Saturday, January 9th, which showed just 26 inmates. Of the 26 listed, none were arrested after the DA’s initial notice of grand jury presentment on December 18, directly contradicting Totten’s claims that the number of cases had ‘dramatically increased.’ 

Defense attorneys also requested that the Court compel the state to move forward on the following premises: 

• doing so is ‘consistent with the language contained in O.C.G.A 17-7-52 and the seminal principles of due process of law;’
• Thompson gave adequate notice and met the statutory requirements; and,
• the code section O.C.G.A 17-7-52(d) reads that ‘if the officer requests to testify before the grand jury and appears at the date and time specified, the case shall proceed as in any other criminal case heard by a grand jury.

“[T]he State forced the Defendant to tip his hand about whether he would exercise his unique and specific statutory right to offer testimony before this specific Grand Jury panel and he did so as required by law. It would simply defy due process to now give the state a continuance and thus months to prepare for such testimony after it smoked out the Defendant’s position,” the motion reads. 

“After learning that the Defendant intended to appear as a witness and testify before the Grand Jury at the date and time set by the State, the State pulled the rug out from under the Defendant at the close of business on a Friday afternoon, revoked its intention of presenting the case at the date and time schedule by the notice, and cancelled its party.”

“The Defendant desires to proceed as scheduled as his liberty and livelihood is curtailed due to the pendency of the charges in this case and his stringent bond conditions.”

Though it was not noted in the motion, the Georgia legislature convened for its 2021-22 legislative session as of 10:00 a.m. on Monday, January 11, meaning any potential or forthcoming legislation would not and could not be retroactively applied to cases already moving through the judicial process, if any did exist as Totten claimed. 

A brief emergency hearing was held before Judge Lovett Bennett Monday, at which time the motion was denied. Thompson’s case had not been rescheduled as of Tuesday morning and following another statewide judicial order prohibiting jury trials amid the COVID-19 pandemic, it is unclear when the case will proceed. 

BACKGROUND

In her capacity as Acting District Attorney last fall, Totten was instrumental in the decision with the GBI to arrest Thompson a week after the incident occurred, according to GBI testimony in court. The Georgia Bureau of Investigation charged Thompson with felony murder and aggravated assault in the shooting death of Julian Lewis, a motorist Thompson attempted to stop in Screven County on the evening of August 7, 2020. A pursuit ensued when Lewis fled, leading Thompson to perform a PIT maneuver to end the chase, but when the vehicles came to a stop and Thompson exited his patrol car, he says he heard the engine revving, and believed Lewis was going to use his vehicle to harm him. Thompson fired one shot, striking Lewis in the head.

The GBI has contended that the use of force was not justified because Lewis’ car was disabled and off when agents arrived on the scene approximately two hours after the shooting. The agency arrested him August 14, 2020 – seven days after the incident.

During a preliminary hearing in September, a Screven County volunteer firefighter – who was also the first person to arrive on scene minutes after the shooting – testified that the lights of Lewis’ car were still on when he arrived, a fact he said he was certain of because they were ‘blinding’ him while he was on the scene. ADA Ben Edwards, however, argued that Thompson’s ‘version of events is wholly unsupported’ and speaks to lacking credibility of his story. 

Thompson spent an unusual 108 days behind bars as his attorneys made three attempts for bond – in August, September, and November – before Chief Superior Court Judge Gates F. Peed ordered bond.

The full document with exhibits as filed in the Clerk’s office is below.