Investigation called for Reed family attorney comments

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INDIANAPOLIS — FOX59 News has been told by a law enforcement source that a discussion is underway to conduct an investigation into comments made by an attorney representing the family of Dreasjon Reed that could be construed as a potential threat of criminal intimidation against an IMPD officer.

Last week, Special Prosecutor Rosemary Khoury of Madison County announced that a Special Grand Jury in Marion County chose not to level criminal charges against Officer Dejoure Mercer for his killing of Reed during a foot chase on the city’s north side May 6th.

An Indiana State Police investigation found Mercer and Reed exchanged gunfire during the chase.

Three street protests ensued after the grand jury announcement, one in the downtown area and two on the northwest side near IMPD’s District Headquarters where Mercer was assigned at the time of the incident.

At each protest, men with semi-automatic and long rifles marched alongside demonstrators, blocking traffic, and on two occasions arrived at the IMPD District Headquarters.

During a virtual briefing with reporters and other attendees Saturday, Reed family attorney Fatima Johnson noted that the meeting would need to be concluded so as not to delay that afternoon’s protest.

Minutes earlier, Johnson and co-counsel Swaray Conteh criticized the ISP investigation which found no wrongdoing on Mercer’s behalf and then offered their observations about the officer’s future.

“He should be in jail right now,” said Conteh.

“I think that he is gonna have a lot of trouble staying in his job, staying in his house, staying in his life and going about town as if everything’s normal because everyone knows what he did.”

Fatima Johnson

Madison County Prosecutor Rodney Cummings who stood by Khoury’s side as she announced the Grand Jury decision November 10th said the comments of the attorneys may be ethically inappropriate and potentially criminal.

“I wouldn’t be surprised if a criminal investigation is requested,” said Cummings. “I could see that. It seems to me to be very intimidating. It seems a little bit like inciting some action against this officer.

“I think it’s a violation of our ethical responsibilities. That’s my opinion only and I think a complaint should be filed against these attorneys for making these statements.

“It doesn’t comport with the facts as we know them to be and it seems to be an effort to incite violence against that officer.”

In late August, posters appeared around Indianapolis that read: WANTED BY THE PEOPLE FOR THE MURDER OF DREASJON REED with a photograph of Officer Mercer, listing his name and the warning: CAUTION: SUBJECT SHOULD BE CONSIDERED ARMED AND DANGEROUS.

On August 22nd that image was posted to Attorney Johnson’s Facebook page.

“That’s just slander,” said Cummings. “It’s not accurate, it doesn’t comport to reality. It’s a disservice to the justice system, it’s a disservice to Indianapolis, it’s a disservice to this officer who did everything right.

“I can’t imagine how any lawyer or any person who is supposed to stand for justice would think that that is an appropriate thing to do. It’s not truthful and its slanderous. That officer is not wanted for murder by any government entity that I can think of, only by people who do not have any interest in our justice system.”

An email to FOX59 News from the office of Attorney Johnson confirmed the poster was created by Indy 10 several months ago and reposted to the attorney’s Facebook page. Furthermore, the email challenged FOX59 News to further investigate the evidence revealed by the State Police probe into Reed’s killing.

When asked about the comments of co-counsels Conteh and Johnson earlier this week, FOX59 News was provided with the following statement:

“Attorneys opinions differ frequently, as we are frequently adversaries in court. I am an advocate for my client and as such, I am discharging my duties faithfully and ethically. To extract a threatening message out of this harmless quote, which happens to be a statement of fact, means that someone took what I said out of context. My quote was merely illuminating the fact that if you kill citizens, other citizens will know and might not hold you in the same esteem as they once did. If the next step in this process is to tarnish my name and reputation, I am well prepared to fight that fight as well.” 

Attorney Fatima Johnson

“Personally I think these comments may have gone beyond the pale, but that’s just my personal opinion about what I know about how we are to conduct ourselves,” said Ralph Staples, former Marion County Deputy Prosecutor who presented several grand jury cases during his tenure. “Inciting the community to reject one of its own, or making the statement that someone may have problems in their lives or in their jobs, that is dovetailing into the intimidation statute in my personal opinion.”

A person who communicates a threat to another person, with the intent…that the other person engage in conduct against the other person’s will…commits intimidation, a Class A misdemeanor. However, the offense is a Level 6 felony if the person to whom the threat is communicated is a law enforcement officer.

Indiana Code 35-45-2-1

“Putting myself in a position where someone were to say in a public forum after thoughtful consideration that I should be concerned about my ability to return to my life, or I should be concerned about my ability to return to my job or do my job, I would be concerned about that statement,” said Staples. “People are upset about one thing or another, they’re taking up arms, they’re out in public. We as a civilized society don’t need to see that. We don’t need people out there stoking those flames.”

Indiana attorneys are governed by Rules of Professional Conduct, Section 3.6, which reads:

A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Rules of Professional Conduct, Section 3.6

Even though there are no criminal charges pending against Mercer, the Reed family, through Johnson and Conteh, has a pending civil lawsuit naming the City, IMPD, Mercer and other officers as defendants.

“Lawyers do have First Amendment rights,” said Don Lundberg, former chief legal counsel and executive director of the Indiana Supreme Court Disciplinary Commission. “A lawyer cannot commit a crime if it reflects adversely on honesty, trustworthiness or fitness as a lawyer. Was a crime committed by these statements? Well, that’s pretty touchy business on whether or not speech constitutes a crime.

“Literally anybody could report this to the Disciplinary Commission to say, ‘I’m concerned about this. I’m not an expert on the rules of professional conduct but it concerns me. I think the Disciplinary Commission ought to look into it.’ And the Commission will then do a screening process to decide at least on its face whether there is an issue there that ought to be investigated and, if so, go ahead and investigate it.”

Cummings was asked if he would seek either an ethics or a criminal investigation into the comments since the Reed Special Prosecutor was assigned out of his office.

“I think I would have no authority to act in this case,” he said. “I think there may be some argument that my deputy prosecutor who was appointed, Rosemary Khoury, may have the authority because this is an extension of that. One could make that argument.

“It’s probably something the Marion County Prosecutor should address if it’s brought to his attention.”

Multiple law enforcement, criminal justice and legal community sources contacted by FOX59 News privately expressed their concerns regarding the comments but declined opportunities to go on the record.

Prosecutor Mears has not issued a statement in reaction to the decision rendered by the Special Grand Jury he petitioned for in the spring.

Mayor Joe Hogsett’s statement in the wake of the Reed announcement expressed thoughts with Reed’s family but made no mention of Mercer. The mayor’s office declined to comment on this story, referring to the Reed family’s pending litigation against the City.

FOP President Rick Snyder, Mercer’s Attorney John Kautzman, IMPD Chief Randal Taylor and Mears all declined requests for comment.

Last week, City-County Council President Vop Osili and Councilor Leroy Robinson both expressed their support for the Grand Jury’s decision, the ISP investigation and consideration of the impact the shooting has had on Mercer and other IMPD officers.

“The problem with this situation is that it is emotionally charged. It’s receiving a lot of attention,” said Staples. “Government is designed as guardrails to keep us in an acceptable range of conduct and when you’ve got citizens arming themselves going about the community, that’s not desirable conduct.”

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