Fulton County DA Paul Howard. Photo: John Disney/ALM

Three former prosecutors say Fulton County District Attorney Paul Howard has issued an invalid grand jury subpoena for police records tied to a former officer charged with fatally shooting Rayshard Brooks.

Former DeKalb County District Attorney Jeff Brickman and former Cobb County DA Tom Charron said Howard's issuance of a grand jury subpoena without actually having a grand jury impaneled violates a state requirement that subpoenas be tied to a specific court date. No grand jury has been impaneled in Fulton County since March 13 because of the COVID-19 pandemic.

"You cannot issue a subpoena to a grand jury that does not exist," Brickman said. "It's a legal fiction, and it's improper. If I tried to issue a subpoena to a grand jury that simply doesn't exist, I would be laughed out of court."

"If you don't have a grand jury impaneled, that's a problem" and any subpoena issued without a grand jury would be null and void, said Charron, a former president of the National District Attorneys Association,

The sought-after documents are associated with an open internal "use of force" investigation into officer Garrett Rolfe, according to the subpoena. Rolfe shot Brooks in a fast-food parking lot in south Atlanta at the end of what began as a misdemeanor traffic stop on June 12.

Lawyers for the officers said the use of lethal force was warranted because Brooks resisted arrest, assaulted both officers, took one officer's Taser and then fired it at the other officer while trying to flee.

Former DeKalb County District Attorney J. Tom Morgan, now a criminal justice instructor at Western Carolina University, recalled that when he was DA, a young assistant unwittingly issued a grand jury document subpoena even though the county grand jury was not in session. DeKalb County Superior Court Judge Hilton Fuller held the young prosecutor in contempt, Morgan said. "We apologized profusely," he recalled. Fuller, he said, warned them "to never let it happen again."

On Tuesday, Howard said his office proactively sent grand jury subpoenas in advance of the expiration of a statewide judicial emergency order in the hopes that a grand jury might be able to convene.

The statewide judicial emergency order currently in place provides limited leeway for grand juries to convene, but only if they were already impaneled before March 14 or were recalled from a previous term while abiding by COVID-19 health directives. Fulton County had no grand jury empaneled when the statewide emergency took effect.

The current emergency order expires July 14 but Georgia Supreme Court Chief Justice Harold Melton announced at a meeting of the state Judicial Council this week that he will extend the current emergency order through Aug. 11.

Howard acknowledged that means he will not be able to impanel a grand jury for another month. He said when grand jury proceedings resume, his office "will resend the subpoenas at that time."

But the DA also questioned why he should have to issue a grand jury subpoena for police documents and evidence he deems "necessary in an investigation of one of their own employees."

When Howard announced multiple felony charges against Rolfe and fellow officer Devin Brosnan five days after Brooks was killed, the district attorney said a grand jury would not be impaneled until October at the earliest.

Rolfe faces charges of felony murder, aggravated assault, criminal damage to property, violating his oath of office, and failing to render medical aid. He is currently free on a $500,000 bond.

Brosnan, who is free on a $50,000 signature bond, also faces multiple felony charges, including aggravated assault, violating his oath of office, and failure to render medical aid.

Atlanta city attorney Nina Hickson declined to comment on the status of the subpoena.

But Rolfe defense counsel Noah Pines said issuing a grand jury subpoena when no grand jury is impaneled violates a state bar rule prohibiting records subpoenas "when there was no hearing, trial or deposition pending that would have supported the issuance of the subpoena." The maximum penalty for violating the rule is disbarment.

"The Georgia Supreme Court's rules and the law governing lawyers is clear," Pines said. "Lawyers cannot act like Paul Howard has acted in this case."