Missing pieces

As lawsuit against sheriff's department nears trial, defense gets murky

There's an invisible hand working for the Fulton County Sheriff's Department. The hand prints letters and signs documents; it might even file criminal charges — which has made it somewhat difficult for the sheriff's top brass to answer attorneys' questions.

Last month, Fulton Chief Deputy Caudell Jones and Maj. Orlando Whitehead were deposed in a $1.5 million lawsuit filed by a man named Tim Peck. Peck is suing the sheriff's department, the county, the off-duty Fulton deputy who arrested him and broke his legs, and the restaurant where the beating occurred.

In 140 pages of depositions filed in DeKalb County Superior Court, attorney Genevieve Frazier asked Jones and Whitehead about the sheriff's flawed internal affairs probe of Peck's beating and the repeated resurrection of Peck's criminal case. Peck's charges were filed and dismissed three times.

Jones conjured images of a ghostly presence in the Sheriff Jacquelyn Barrett's internal affairs division. And Whitehead made it seem OK to allow — or perhaps order — Deputy Kelvin Smith to seek an indictment against Peck after a judge had dropped Peck's charges and had called the deputy's actions "something that the law just cannot condone."

Peck's civil case is scheduled for trial June 2. If the depositions are any indication, the sheriff's department's defense will be marked by curious holes.

In August 2001, weeks before the internal affairs investigation of Peck's beating was completed, a letter was written to Deputy Smith clearing him — prematurely — of any wrongdoing. The letter was signed by Maj. Berle Brereton. But Chief Jones, in his deposition, said Brereton wasn't behind the letter: "He said it wasn't his signature; it was from the computer. He said that just came off of the computer and he say [sic] he didn't sign that. ... He said that [signature] was a stamp ... He said that he did not send the letter out." Brereton, who was transferred out of internal affairs in 2002, is scheduled for deposition April 22.

The coversheet of the internal affairs file on Peck's beating is dated Oct. 4, 2001, and is marked "closed." It stated Smith was cleared of physical abuse. Sheriff Barrett told CL at the time: "From everything we could find, the use of force and the amount of force used was appropriate." Three months later, after the judge lambasted Smith in open court, Barrett said the case wasn't closed. She faxed CL a document absent from the original file but nearly identical to the page marked "closed." It said: "Case to remain open pending psychological evaluation." During Jones' deposition, Frazier asked: "Do you recall seeing that document, Chief?" "Yeah, uh-huh," he answered. "And you signed off on that?" "Yes." "Whose handwriting is it that was added across there, that the case is to remain open?" "I don't — I don't know."

After the judge dismissed Peck's charges, Smith visited a Fulton assistant district attorney to push for an indictment against Peck — failing to tell the prosecutor that he'd broken Peck's legs and that charges against Peck had already been dropped. According to Smith's attorney, Dennis Webb, Smith sought the indictment on orders from the sheriff's department. Jones said in his deposition: "I don't recall that meeting. ... I don't recall anyone ever telling him to go to the district attorney's office." Later in the deposition he said he did recall the meeting. "I believe Major Whitehead was there. ... I think Whitehead would be the best to ask about that." Whitehead, in his deposition, said, "I can't remember what was exactly said in that meeting, but we did talk to the chief. ... I don't remember if he agreed or not but ... what I told [Smith] to do was nothing out of the ordinary."

Within a month, District Attorney Paul Howard dropped Peck's indictment and began an investigation into allegations of abuse by Fulton deputies (Howard learned of the allegations after a grand juror alerted him to CL's coverage of Smith and other deputies' abuses). Barrett then fired Smith for physical abuse.

Ten months later, Peck's charges were filed yet again — by the Fulton County Solicitor's Office. It's unclear how the third set of charges came to be; Peck's attorney says she's looking for evidence that they were resurrected by someone with ties to Smith or the sheriff's department. Chief Jones denied knowledge of the third charges in his deposition.

If the case goes to trial in June, it could be unpleasant timing for the sheriff's department. The Fulton County Commission announced this month its intent to conduct an "emergency management review" of the department based on allegations of a security breakdown at the jail, according to Susan Laccetti Meyers, senior policy analyst to Fulton Commission Chairman Mike Kenn.

Barrett declined comment for this story. But she told the Atlanta Journal-Constitution, in relation to the review: "I know it is political." Barrett is an elected Democrat. Chairman Kenn is Republican.

"This is not a political thing," Meyers says. "We have no beef against the sheriff. We just want to make sure everybody is safe. The county doesn't need to get sued."