The lawyer for an alleged Rock Hill gang member charged with killing a man and shooting at several others says police violated a “contract” after his client divulged information about the so-called street gang’s organization and leadership.
The deal, according to a court motion filed last week, was that murder suspect Abbdul Emmanuel would go free if he provided information on 715 FAM, a group of teenagers and young adults who say they’re aspiring musicians who produce music videos and post them on social media.
Emmanuel, 20, remains jailed at the York County Detention Center without bond, facing 13 charges that include murder, armed robbery, criminal conspiracy, possession of a weapon during a violent crime and attempted murder. His attorney, Tyler Burns of Fort Mill, is asking a judge to enforce the “oral contract” between Emmanuel and police, and dismiss his charges as promised.
Police say because several of 715 FAM’s members have been implicated in serious crimes – including murder, burglary, attempted murder and armed robbery – the group is a hybrid gang, a street or neighborhood gang that promotes its image while also debunking notions that it’s involved in gang activities. Members of 715 FAM rebuff that designation, saying they feel typecast and discriminated against by authorities.
A York County magistrate upheld murder and attempted murder charges against Emmanuel during a preliminary hearing in April. According to a motion Burns filed in court last week, the charges should be dropped because a police detective vowed that 16th Circuit Solicitor Kevin Brackett would dismiss Emmanuel’s murder charges if he gave authorities information they sought about several shootings and 715 FAM.
Burns writes that he listened to audio recordings of Emmanuel’s interview with Rock Hill Police Detective Ryan Thomas, who the motion states is heard asking Emmanuel if he knows Kevin Brackett.
“He said he would drop all the charges if you feel like cooperating,” Thomas allegedly told Emmanuel, who then asked when he would get out of jail.
“I’d have to talk to (Brackett) about that,” Thomas allegedly responded. “I don’t know if it will be this afternoon, tonight or tomorrow morning. We will work all that out.” According to the motion, Thomas went on: “Well that’s the deal; are you good with that?”
Emmanuel apparently was, and gave police information about the “makeup” of 715 FAM, satisfying his “part of the contract,” the motion states. That information, Burns writes, uncovered “extensive evidence” against Emmanuel that prosecutors are using against him.
“I did not promise anything,” Brackett told The Herald last week, adding that solicitors don’t make promises to defendants “on the front end.” Brackett said there is no understanding between prosecutors and law enforcement authorizing police to make deals without first contacting him or a deputy solicitor.
Prosecutors consider alternative outcomes of a defendant’s case if the person charged is cooperative and provides information useful to an investigation, he said, adding that an agreement is never reached until the end of a case when solicitors can gauge whether the information offered is credible.
Brackett declined to comment further because the case is pending. Rock Hill Police declined to comment for the same reason. Prosecutors plan to file a response to Burns’ motion.
Police should never make deals without the authority of a prosecutor for fear of risking a conviction, said Maj. Florence McCants, spokeswoman with the S.C. Criminal Justice Academy.
“As an officer, I can’t promise you anything,” she said, adding that officers can speak with prosecutors to see if they will broker a deal with a defendant, but the decision rests with the prosecuting authority.
“You never want to use the word promise,” she said. “You just can’t make a promise and not know whether it can be honored.”
In court documents, Burns argues that while Brackett did not make the promise, Thomas acted as an “agent of the government…in the name of Solicitor Brackett” when he implied the chief prosecutor authorized the deal with Emmanuel.
Even if Thomas did not have authority to make the promise, the motion states, the deal should be upheld because Emmanuel believed he was “speaking to a government agent with the authority to offer him a deal.”
Because he thought a deal would be upheld, the motion reads, Emmanuel waived his rights to remain silent and have an attorney present. Burns writes it’s unlikely Emmanuel would have provided information to police without an agreement with them.
“To now strip him of the benefit of his bargain is both fundamentally unfair and violates his federal and state constitutional right to due process of law,” the motion reads.
Lawyers who allege a broken promise by police have to determine the validity of the allegations and if police have the authority to bind prosecutors “even to a written promise,” said Joseph McCullouch, a former Richland County prosecutor turned defense attorney. McCullouch also serves as state representative for the Innocence Project, a national organization aiming to exonerate defendants who have been wrongfully convicted.
Courts have ruled that police can use “a certain level of trickery and misstatement” when interrogating suspects, McCullouch said. But, if officers make deals that guarantee immunity from prosecution without a solicitor’s say-so, they risk prosecutors being forbidden from using that statement in court.
The result, he said, would likely lead to a conversation between the prosecutor and police, but no criminal penalties for the officer who made the deal.
Chris Wellborn, a Rock Hill defense attorney who represents clients in state and federal courts, said it’s common for police to make deals with defendants and never follow through. But it is uncommon for motions filed by defense attorneys alleging that police have reneged on a deal to be successful, he said. In those cases, attorneys must prove their clients suffered after divulging information once they waived their right to remain silent.
In federal court, deals are formalized, complete with signed agreements between prosecutors, defense attorneys and defendants, he said. On the state level, they’re often made on “a wing and a prayer,” which places everybody in a position “to trust each other.”
That trust can easily be jeopardized if police earn a reputation for failing to deliver on their word.
“People just lose their ability to trust whoever is making these promises and not following through,” Wellborn said. “There is a lot of room for abuse.”
He added, “People are fools if they go in and they get questioned about criminal activity without a good defense lawyer being with them.
“It’s your word versus an officer’s word...unless you’ve got a lawyer.”
Burns, a former prosecutor, told The Herald last week that he has copies of the recordings and has listened to them. He stressed he would not risk his career on writing in a motion that police are heard making a deal on audio recordings if such recordings did not exist.
When Thomas allegedly interviewed Emmanuel is unclear because the suspect was arrested twice in one week. On Jan. 12, he turned himself in on warrants in connection with a drive-by shooting. Emmanuel was released a day later on a $10,000 bond. A day after he was released, he turned himself in to police again, this time in connection with the Giddens homicide.
A hearing on Burns’ motion had not been scheduled by late Friday.