MEMPHIS, TN – Shelby County District Attorney Bill Gibbons announced Tuesday that the D.A.’s Office will not appeal a judge’s decision to grant pretrial diversion for two West Memphis police officers indicted in 2004 for reckless homicide.
On December 5, 2008, Judge John Fowlkes ordered the state “to enter into a pretrial diversion memorandum of understanding with the defendants (Tony Galtelli and John B. Gardner), taking into account each defendant’s individual circumstances as well as the long history of this case.” District Attorney Gibbons stated that his office will enter into such an agreement with defendants. In consideration of their compliance with the normal rules of pretrial diversion over the past four years, the D.A.’s Office will agree to an order showing their completion of that diversion, and accordingly, their criminal records will be expunged and all public records of the evidence and the case will be expunged.
The Shelby County Grand Jury indicted Galtelli, Gardner and a third West Memphis police officer for recklessly killing Kelly Anne Allen, who was shot in the back of the head on July 18, 2004 after the officers chased a car in which Allen was a passenger from West Memphis to Memphis, on Interstate-40 over the Hernando-DeSoto Bridge. The driver of the car was also shot and killed in the incident, but the D.A.’s Office could not refute the defense of justifiable use of deadly force in that shooting. However, under Tennessee law, there is no defense of justifiable use of deadly force when an innocent third party is recklessly killed.
The D.A.’s Office originally denied diversion to all three defendants, but the Court ordered the state to place them on pretrial diversion. The D.A.’s Office appealed that decision and the Tennessee Court of Criminal Appeals remanded it back for reconsideration. After reconsideration, the D.A.’s Office granted pretrial diversion to one defendant and denied pretrial diversion for Galtelli and Gardner.
District Attorney Gibbons contends that diversion is not appropriate for the two defendants, however, he believes, based on the number of years this case has been pending, it would be a waste of taxpayer resources.
“This case vividly illustrates why the statute requiring pretrial diversion should be repealed,” Gibbons stated. “The original law was designed to provide prosecutors with a way to avoid giving a first-time offender a permanent criminal record for a minor offense. The law has since been extended to other crimes and interpreted by the courts as providing a presumption in favor of diversion for many offenses that are not minor, including some homicides,” he said. Gibbons also noted that since that law was passed, the courts have been authorized to grant judicial diversion after conviction, thus allowing a first-time offender a method of clearing his or her record after a public hearing and determination of the facts, either by trial or guilty plea.
|