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District attorney digging into bad cops

Howard has hauled records from Fulton sheriff's internal affairs

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The Fulton County District Attorney's Office has launched an investigation into alleged abuses by Fulton sheriff's deputies, District Attorney Paul Howard said Monday.Howard said his office requested from the sheriff's department and received "a rather voluminous file" detailing the alleged abuses, many of which were described during the past year in Creative Loafing articles.

"It's a huge box filled with incidents," Howard said. "I did not realize that there had been that many incidents. I was thinking it was five or six."

Howard's investigation comes after a grand jury heard allegations that a man named Tim Peck resisted arrest and fought then-Deputy Kelvin Smith in April 2001. The grand jury indicted Peck Jan. 18, but one of the jurors came to Howard's office afterward and told an assistant district attorney it was, in fact, Peck who was beaten -- to the point of having both his legs broken.

The story of Peck's beating, Smith's 10 past physical abuse allegations, and allegations of abuse by at least 10 other deputies had been the subject of CL articles.

"Apparently, one of the grand jurors read your story," Howard says. "They suggested that we ought to look at all of" the allegations against Smith and other deputies.

How Peck's charges ever made it to the grand jury -- a Fulton magistrate had dismissed them a week before the indictment -- is another story. Smith, who was first exonerated by the sheriff's department and then fired, is currently building a case to get his job back. Judging from evidence presented at Smith's July 18 appeal hearing before the county Personnel Board, Smith's case has some merit.

Smith's attorney claims the deputy was fired for political reasons. That's not to say he didn't break Peck's legs. It's just that the sheriff's department, at first hesitant to fire Smith and eager to believe him, may have sided with him so quickly that it made a fair investigation impossible.

In the course of piecing together the circumstances of Smith's appeal, CL obtained documents last week that reveal that Smith tried to further punish the man he maimed -- to the point of circumventing the court system. That led to the discovery of the short-lived indictment.

Peck was introduced to Smith's baton April 2001, when the two men got into a fight after Peck went to pick up a to-go order at the Fox & Hounds restaurant, where Smith worked off-duty security. Peck was hospitalized for a week; metal pins now hold one of his legs together. He also was charged with six counts, including felony obstruction of a peace officer.

The sheriff's department launched an investigation into the beating, but that probe had numerous flaws. Internal affairs never interviewed Peck. Investigators basically took Smith's word, along with the statements of the restaurant workers who hired Smith and were facing insurance claims from Peck. Internal affairs Maj. Berle Brereton even wrote Smith a letter before the investigation was over, stating Smith was not at fault in the beating.

The letter would come back to haunt Sheriff Jacquelyn Barrett; when the investigation into the beating did conclude, she had to exonerate Smith or risk contradicting her department's earlier finding.

The case could have ended there -- except that three months later, the judge hearing the criminal charges against Peck dropped them. Magistrate Court Judge Craig Schwall proceeded to grill the deputy in open court, stating, "the law just cannot condone" how badly he beat Peck.

The following month, Barrett told CL she had fired Smith because of the judge's ruling. She also transferred Brereton, who penned the exoneration letter to Smith, out of internal affairs.

In the month between the judge's harsh words and the sheriff's decision to fire Smith, however, a whole other controversy arose. It turns out that Smith skirted Schwall's ruling by going four days later to the District Attorney's Office to muscle an indictment.

On Jan. 18, three days after Smith met with Assistant District Attorney Jack Barrs, Peck was indicted on four counts, including the felony obstruction charge. Neither Barrs nor the grand jury was aware that Smith had broken Peck's legs with his baton.

When Howard learned the extent of Peck's injuries through the grand juror, he ordered that the week-old indictment be withdrawn because of the "possibility of misrepresentations made during testimony before the grand jury," according to Howard's Jan. 25 order.

Smith's attorney, Curt Thompson, contends Smith didn't misrepresent anything -- and that he went to the District Attorney's Office only because he was following orders from Chief Deputy Caudell Jones, the sheriff's department's second-in-command.

Jones vehemently denies that allegation.

"I did not tell him to go get an indictment on Mr. Peck," Jones says. He declined further comment and deferred to Sheriff Barrett, who was out of town and couldn't be reached.

Smith may yet prove the sheriff's department used him as a scapegoat to save face and fired him only for political reasons -- namely, in response to Schwall's and Howard's criticisms.

The Personnel Board, which began hearing testimony in Smith's appeal July 18, could vote in October to reinstate Smith, with back pay.

Meanwhile, the District Attorney's Office is not pursuing charges against Smith for the alleged misrepresentations before the grand jury.

"The deputy didn't quote-unquote lie," according to district attorney spokesman Erik Friedly. "He just didn't tell all the facts that we would really want in order to make an ethical and reasonable decision."

But somewhere in the big box of documents that Howard requested from internal affairs lie heavier allegations against Smith -- and against perhaps 10 or more other deputies.

"My public integrity unit and I, we are reviewing that whole series of cases," Howard says, adding that he may have a progress report on the investigation sometime next month.

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