concurring. I join Justice Corbin’s concurrence but add these additional observations. The problem with this case is that a factual dispute looms large as to whether the investigation by the special prosecutors was closed when they issued their report to Judge Burnett on November 20, 2007. The case certainly seemed to be over. The prosecutors said:
In October alleged “new” evidence was announced to have been in the possession of Mr. J. Bailey, Attorney, to include a “chip” bag and a “soda” container, recovered by Mr. Bailey’s team at the scene, and the names of several “new” witnesses who gave various statements to those working with Mr. Bailey. As of the date of this report, despite efforts by the ASP to obtain said evidence, it has not been provided to us. Given the description of the “evidence” provided by Mr. Bailey on television and over the telephone to Foster, it does not appear to adequately contradict the vast weight of the statements given by witnesses who have spoken with law enforcement or the physical evidence recovered by law enforcement at the scene the night of the shooting, or thereafter; consequently the decision has been made to close the investigation despite the current absence of actual “evidence” alleged to be in Mr. Bailey’s possession. It should be noted here that should credible “new” evidence appear at any time, it will be received and evaluated for possible further action. This of course is true here as it is in any criminal investigation, closed or open. A review of the investigative file will show the photos taken at the scene the night of the shooting and the absence of any chip bags or drink containers.
(Emphasis added.) At the end of the report, the special prosecutors concluded that the shooting did not “present a prosecutable criminal case.” Judge Burnett subsequently released the redacted criminal investigative file of the special prosecutors to the public.
The reason this is important is that the appointment of the special prosecutors was to “expire upon completion of the above-stated investigation and/or prosecution or until further orders of this Court.” Hence, it is clear that when the investigation by the special prosecutors is concluded, that is one basis upon which the appointment by the judge ends.
At oral argument before this court, Special Prosecutor H. G. Foster announced that new information had been presented to him since his report, including a DVD relating to the investigation. In light of this, he contended that his investigation was continuing. Mr. Foster further maintained that his role as special prosecutor should go on as long as there is new evidence to consider.
Judge Hill stated at oral argument that he did not believe that the investigation by Mr. Foster and Mr. McQuary was, in fact, continuing. He also disagreed with the special prosecutors’ decision not to charge Officer Sammis.
This court, as a result, is called upon to decide a credibility question of whether the investigation by the special prosecutors was concluded in DeAunta’s death, which meant the special prosecutors were discharged. In my judgment, we must take the special prosecutors at their word, as we presume public officials perform their duties correctly. See Dilday v. State, 300 Ark. 249, 778 S.W.2d 618 (1989). Nor should this court interfere with the duties of the prosecutors, as that would be a violation of the separation-of-powers doctrine. See State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993). Because of this, I resolve the credibility issue in favor of the special prosecutors.
Judge Hill’s principal argument in opposition to the issuance of the writ is that Arkansas law authorizes the circuit court to empower a special grand jury. He cites to the following statute:
(a) At any time a grand jury is not in session, the court, in its discretion, by order entered of record, may impanel a special grand jury.
(b) When impaneled, the special grand jury shall have all the powers and proceed in all respects as provided by law for the conduct of regular grand juries.
Ark. Code Ann. § 16-85-517 (Repl. 2005). The majority opinion does not address this argument forjudge Hill’s actions, but clearly this power must yield to that of a circuit judge who has already assumed jurisdiction over a case, which, according to the special prosecutors, is still ongoing. See Patterson v. Isom, 338 Ark. 234, 992 S.W.2d 792 (1999). Were this not the case, our judicial system would quickly fall into disorder with individual circuit judges vying for jurisdiction over individual cases. See id. That would, clearly, be an untenable situation.
Nevertheless, because of the history of this case, it is imperative that the investigation regarding the new evidence be handled with diligence and dispatch.
What we do not decide in this case is what might transpire in the future in the form of additional investigative action, once the current investigation is concluded.
With these comments, I agree to the issuance of a writ of certiorari to halt tlm grand jury called for by Judge Hill.
Corbin, J., joins this concurrence.