FAIRFAX COUNTY, Va. (AP/7News) — A prosecutor has requested a special grand jury investigate the fatal police shooting of an unarmed shoplifting suspect outside a northern Virginia shopping mall after an earlier grand jury refused to issue an indictment.
Carl Crews, an attorney for the family of Timothy McCree Johnson, said he was informed Tuesday by Fairfax County Commonwealth's Attorney Steve Descano that a judge had approved the prosecutor's request to empanel the special grand jury.
Descano confirmed Tuesday in a short statement that he requested the special grand jury but declined further comment.
“After considering all options on a path forward, I have elected to request a special grand jury," Descano told 7News. "This is an ongoing matter and due to the sensitive nature of this case we will not be commenting further at this time.”
The use of special grand juries is rare. In Fairfax County, the only other time Descano sought a special grand jury was in the case of another fatal police shooting — the 2017 shooting of Bijan Ghaisar by U.S. Park Police officers after a stop-and-go highway chase. The charges, in that case, were ultimately dismissed by a federal judge.
The empanelment of the special grand jury in the Johnson case comes after a regular grand jury declined last week to indict the officer who fatally shot Johnson.
Johnson was shot and killed on Feb. 22 after a security guard said Johnson had stolen sunglasses from a Nordstrom department store. Two officers chased Johnson into a wooded area outside the mall. Both officers fired shots. An investigation determined that one of the officers, Wesley Shifflett, fired the fatal shot.
RELATED: Fairfax Co. grand jury fails to indict officer in Tysons fatal shooting of Timothy Johnson
Police Chief Kevin Davis decided to fire Shifflett, but Shifflett is appealing. Davis also released a dimly lit body camera video showing a nighttime foot chase that lasted less than two minutes. In a slow-motion version of the video, it sounds as though two shots were fired after an officer yelled “Get on the ground” but just before shouting “Stop reaching.”
After the shooting, the body camera video records Shifflett telling another officer he saw Johnson “continually reaching in his waistband” and that he told Johnson, “Let me see your hands.” But that command cannot be heard on the video.
Police searched for a weapon but none was found.
Caleb Kershner, a lawyer for Shifflett, said Tuesday that he was shocked Descano is presenting the case to a second grand jury. He said prosecutors should respect the judgment of the initial grand jury, which did not find probable cause to bring criminal charges.
“It's pretty clear they don't want to respect the law, and they're going to try hell or high water to get a charge,” Kershner said.
RELATED: Officer who shot, killed Timothy Johnson at Tysons Corner separated from FCPD, chief says
The rules for a special grand jury are different than those for a regular grand jury. Most significantly, in a regular grand jury, prosecutors are absent from the room when police officers present evidence and testimony to the grand jurors.
When the grand jury declined to indict Shifflett earlier this month, Crews expressed concerns that officers shaded their testimony in a way that weakened the case. Descano issued a statement emphasizing he was not allowed in the room and had no idea what testimony officers gave.
RELATED: NAACP demands higher standards following fatal police shooting at Tysons Corner Center
Crews noted how rare it is for a grand jury to refuse indictments and said he was concerned police were trying to cover up for a fellow officer.
In a special grand jury, prosecutors are in the room asking questions of officers who give testimony and have more control over the process.
“I believe that [Descano] realizes that a crime was committed,” Crews, said in an interview Wednesday. “He was unsure of whether the presentation of the facts to the grand jury was truthful. Therefore he’s trying to take control of that narrative and trying to make sure that the facts are laid bare.”
“My concern is now that the prosecutors will be allowed in, they can present the evidence how they want it to be heard and not heard, and potentially get a charge without presenting the full picture," Kershner said Wednesday.
Johnson's mother, Melissa Johnson, said in a phone interview that she “felt like the wind had been knocked out of her” when the grand jury refused to indict last week. Now that the new grand jury will hear the case, she said she feels “revived, with renewed hope in the judicial system.”
“He’s looked at the evidence," Melissa Johnson added in an interview Wednesday. "And even if we were shouting it and crying it, and the evidence didn’t match what we were saying, I don’t see him pursuing something just because the family wants to pursue it.”
In a statement to 7News, Johnson family attorney Carl Crews said:
"Today, I have learned that the Fairfax County Commonwealth's Attorney, Steve Descano has requested and have received approval for empanelling a Special Grand Jury to investigate the unjustified shooting of Timothy Johnson. This Commonwealth Attorney is sworn to fully investigate all crimes that occur within the borders of Fairfax County. One major difference between a Regular Grand Jury and a Special Grand Jury is that the Commonwealth Attorney will be allowed to be in the room to hear for himself what testimony is being sworn to and with that difference he can be satisfied that the case is truthfully and unbiasedly presented."
Johnson's mother also released a statement:
"I felt a sigh of relief after learning of the Special Grand Jury news today. Last week left me feeling a bit dazed and out of breath like I had taken a blow to the gut. I had to take a few days to address the trauma and realign my faith in God. Today I am not only elated and revived by the news but I am even more hopeful that last week's grand jury's decision sparked folks talking about not only police reform but Grand Jury reform as well. It's a step toward justice for Timothy. I, my family and our team are immensely grateful for all of support we have received and especially the support from Fairfax county citizens, faith based leaders, and elected official at the local and state levels."
Shiflett's attorney, Caleb Kershner, released the following statement:
"Citizens of the grand jury reviewed the evidence and they decided the evidence was not sufficient to charge the sergeant. The Commonwealth Attorney actions show that he does not respect the process or the citizens. The Commonwealth Attorney now wants to take those same facts and send it through the a special grand jury where they have more involvement and can change or manipulate how the evidence gets presented trying to get a different result. The Commonwealth Attorney has a duty to follow the facts to a charge rather than bend the facts to fit a narritive that matches there political objectives. This special grand jury is an attempt to get an outcome that is not supported by the facts."