Case 1:08-cv-00007-MHS Document 112-3 Filed 12/16/09 Page 1 of 27

SMITH GUILTY PLEA AND

PLEA AGREEMENT,
STATEMENT OF FACTS,
P.3,
UNITED S TA TES v. JASON
R. SMITH. USDC
NORTHERN DISTRICT OF
GEORGIA, ATLANTA
DIVISION, CRIMI NAL NO.
1 :07-CR-129

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GUILTY PLEA and PLEA AGREEMENT

United Seta Auomey
Nanhcm Dis trict olCeor g i.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

CRIMINAL NO . 1 :47-CR-129

JASON R . SMITH, defendant, having received a copy of the above-numbered Criminal

Information and having waived indictment, hereby pleads GUILTY to the information. The
defendant, his counsel, and the United States Attorney for the Northern District of Georgia and
the Civil Rights Division of the United States Department of Justice, as counsel for the United
States (and collectively referred to herein as "the Government"), subject to approval by the Court,
have agreed upon a negotiated plea in this case, the teams of which are as follows :

DEFENDANT'S ADMISSION OF GUILT AND THE FACTUAL BASIS THEREFOR

The defendant admits that he is pleading guilty because he is in fact guilty of the crime
charged in the Criminal Information, that is, Civil Rights Conspiracy Resulting in Death . The

defendant agrees that, if this case proceeded to trial, the Government could prove the facts set
forth in the factual basis, attached hereto as Exhibit 1, which is incorporated herein by reference .

STATE GUILTY PLEA AND PLEA AGREEMENT

2. The defendant agrees to plead guilty in the Fulton County Superior Court pursuant to the
State Plea Agreement, entered into with the Fulton County District Attorney (the "State"),
attached hereto as Exhibit 2, before entering his guilty plea in federal court . If the Fulton County
Superior Court declines to accept the State Plea Agreement, this Federal Plea Agreement alone
will control .

WAIVER OF RIGHTS
The defendant understands that by pleading guilty, he is giving up the right to plead not

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guilty and the right to be tried by a jury . At a trial, the defendant would have the right to an
attorney, and if the defendant could not afford an attorney, the Court would appoint one to
represent the defendant . During the trial, the defendant would be presumed innocent and the
Government would have the burden of proving him guilty beyond a reasonable doubt . The
defendant would have the right to confront and cross-examine the witnesses against him . If the
defendant wished, he could testify on his own behalf and present evidence in his defense, and he
could subpoena witnesses to testify on his behalf If, however, the defendant did not wish to
testify, that fact could not be used against him . If the defendant were found guilty after a trial, he
would have the right to appeal the conviction . The defendant understands that by pleading guilty,
he is giving up all of these rights and there will not be a trial of any kind . The defendant also
understands that he ordinarily would have the right to appeal his sentence and, under some
circumstances, to attack the sentence in post-conviction proceedings . By entering this Plea
Agreement, the defendant may be waiving some or all of those rights to appeal or collaterally
attack his sentence, as specified below . Finally, the defendant understands that, to plead guilty,
he may have to answer questions posed to him by the Court concerning the rights that he is
giving up and the facts of this case, and the defendant's answers, if untruthful, may later be used
against him in a prosecution for perjury or false statements .

NO ADDITIONAL CHARGES
4 . The United States Attorney for the Northern District of Georgia and the Civil Rights
Division of the United States Department of Justice agree not to bring further crirninal charges
against the defendant related to the charge to which he is pleading guilty, except that the
Government is free to prosecute the defendant for any other past criminal conduct that (1) the
defendant did not disclose to the Government prior to the filing of this Plea Agreement with the
Court and (2) resulted in the death, permanent or life-threatening bodily injury, or serious bodily
injury of any person . The defendant understands that this provision does not bar prosecution by
any other federal, state or local jurisdiction, except as provided in Exhibit 2 .

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1 0 . Since the defendant obstructed justice, add 2 levels pursuant to U .S .S .G . 3C1 .1 . Since

the defendant obstructed justice in multiple ways, the parties agree that his offense level should
be increased by an additional 2 levels pursuant to U .S.S .G 5K2 .0.

11 . Since the defendant has accepted responsibility, subtract 3 levels pursuant to U .S .S .G .

3E1 . 1 . However, the Government will not be required to recommend all adjustment based on
acceptance of responsibility if, after entering this Plea Agreement, the defendant engages in
conduct inconsistent with accepting responsibility . Thus, by way of example only, should the
defendant falsely deny or falsely attempt to minimize his involvement in relevant offense
conduct, give conflicting statements about his involvement, fail to pay the special assessment, or
participate in additional criminal conduct, including unlawful personal use of a controlled
substance, the Government will not be required to recommend an adjustment for acceptance of
responsibility .

12 . No other adjustments apply .

13 . The total offense level is 34 .

14. The defendant's criminal history category is 1. If the defendant receives credit for
acceptance of responsibility, the resulting guideline range is 151-188 months and the appropriate
sentence is 151 months .

15 . If the defendant does not receive credit for acceptance of responsibility, the resulting

guideline range is 210-262 months, and the appropriate sentence would be a sentence within that
range .

16 . Pursuant to Rules 11 (c)(1){C} and (d) of the Federal Rules of Criminal Procedure, should
the Court reject the foregoing guideline calculations, the defendant may withdraw his guilty plea .

The parties agree that this case would then be controlled solely by the terms of the State Plea

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Agreement . The parties agree further that Rules 11(c)(1)(C) and (d) do not apply to any
provision of this agreement other than those discussed in paragraphs 6 through 14 . Thus, the
parties agree that, should the Court reject any provision not discussed in paragraphs 6 through 14
of this agreement, the defendant will not have the right to withdraw his guilty plea . The parties
also agree not to seek any upward or downward variances pursuant to United States v . Booker,
543 U .S . 220 (2005), nor any upward or downward departures pursuant to the Sentencing
Guidelines, except those specified in this agreement .

COOPERATION
17. The defendant agrees to cooperate truthfully and completely with the Government,
including being debriefed or interviewed in any forum and providing truthful testimony at any
proceeding resulting from or related to his cooperation, The defendant also agrees to disclose
the existence of and to produce to the Government any and all books, papers, documents, and
other items of evidentiary value that are in his actual or constructive possession . The defendant
understands that the Government and the State alone will determine what forms of cooperation to
request from the defendant, and the defendant agrees that he will not engage in any investigation
or other cooperation that is not specifically authorized by the Government or the State .

18.

The defendant and his counsel agree that Government attorneys and law enforcement

agents may contact the defendant without notifying and outside the presence of his counsel for
purposes relevant to the defendant's cooperation .

19 . Pursuant to Section 1 B i .8 of the Sentencing Guidelines, the Government agrees that any selfincriminating information that was previously unknown to the Government and is provided to the
Government by the defendant in connection with his cooperation and as a result of this Plea
Agreement will not be used in determining the applicable Sentencing Guideline range, although such
information may be disclosed to the Probation Office and the Court . The Government also agrees
not to bring additional charges against the defendant based on any information provided by the
defendant in connection with his cooperation that was :.got known to the Government prior to the

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cooperation, with the exception of charges based on criminal conduct that resulted in death,
permanent or life-threatening bodily injury, or serious bodily injury of any person . However, if the
Government determines that the defendant has not been completely truthful and candid in his
cooperation with the Government, he may be subject to prosecution for perjury, false statements,
obstruction of justice, and any other appropriate charge, and all information he has provided may be
used against him in such a prosecution .

20 . The Government agrees to make the extent of the defendant's cooperation known to the
sentencing court. In addition, if the cooperation is completed before sentencing and the
Government determines that such cooperation qualifies as "substantial assistance" pursuant to
Title 18, United States Code, Section 3553(e) and/or Section 5K1 .1 of the Sentencing
Guidelines, the Government will file a motion at sentencing recommending a downward
departure from the applicable guideline range, as calculated in paragraphs 6 through 14 . If the
cooperation is completed after sentencing and the Government determines that such cooperation
qualifies as "substantial assistance" pursuant to Rule 35(b) of the Federal Rules of Criminal
Procedure, the Government will file a motion for reduction of sentence . Good-faith efforts by
the defendant that do not substantially assist in the investigation or prosecution of another person
who has committed a crime will not result in either a motion for downward departure or a Rule
35 motion . The defendant also understands that, should the Government decide to file a motion
pursuant to this paragraph, the Government may recommend any specific sentence reduction, and
the final decision as to what credit, if any, the defendant should receive for his cooperation will
be determined by the Court . If the defendant fails to cooperate truthfully and completely, or if
the defendant engages in additional criminal conduct or other conduct inconsistent with
cooperation, he will not be entitled to any consideration whatsoever pursuant to this paragraph .

21 . The Government agrees not to oppose any request by the defendant to seek placement in a
particular correctional facility, assuming such facility is of the appropriate security level for the

type of offense charged and the sentence i mposed .

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RIGHT TO STATE FACTS AND MAKE RECOMMENDATIONS

22.

The Government reserves the right to inform the Court and the Probation Office of all

facts and circumstances regarding the defendant and this case, and to respond to any questions
from the Court and the Probation Office and to any misstatements of fact or law . Except as
expressly stated elsewhere in this Plea Agreement, the Government also reserves the ri ght to
make recommendations regarding application of the Sentenc ing Guidelines .

LIMITED_ WAIVER OF APPEAL

2 3 . To the maximum extent permitted by federal law, the defendant voluntarily and expressly
waives the right to appeal the conviction and sentence and the right to collaterally attack his
sentence in any post-conviction proceeding on any ground, including a Section 2255 proceeding,
except that the defendant may file a direct appeal of a custodial sentence greater than 151
months, if the defendant receives credit for acceptance of responsibility, or a custodial sentence
greater than 262 months, if the defendant does not receive credit for acceptance of responsibility ;
but in such an appeal, the defendant will not challenge any guideline computation jointly
recommended by the Government and the defendant and adopted by the Court at sentencing .

The defendant understands that this Plea Agreement does not limit the Government's right to
appeal, but if the Government appeals the sentence imposed, the defendant may also file a direct
appeal of his sentence .

FINE/RESTITUTION
24.

If the Court determines that the defendant is capable of paying a fine, and that a fine is

appropriate, the Government agrees to recommend a fine ~e at the bottom of the applicable
Guideline range . The defendant agrees to pay any fine and/or restitution imposed by the Court to
the Clerk of Court for eventual disbursement to the appropriate account and/or victim(s) . The
defendant also agrees that the full fine and/or restitution amount shall be considered due and
payable immediately . If the defendant cannot pay the full amount immediately and is placed in
custody or under the supervision of the Probation Office at any time, he agrees that the custodial
agency and the Probation Office will have the authority to establish payment schedules to ensure

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payment of the fine and / or restitutio n . The defendant further agrees to cooperate fully in efforts
to collect the fine and/or restitution obl i gation by set-off of program payments, execut i on on nonexempt property, and any other means the Government deems appropriate . Finally, the defendant
and hi s counsel agree that Government officials may contact the defendant regarding the
collection of any fine and/or rest i tuti on w i thout notifying and outside the presence of his counsel .

SPECIAL ASSESSMENT
25 . The defendant agrees that, within 30 days of the guilty plea, he will pay a special
assessment in the amount of $100 by money order or certified check made payable to the Clerk
of Court, U .S . District Court, 2211 U .S . Courthouse, 75 Spring Street, S .W ., Atlanta, Georgia
30303 . The defendant agrees to provide proof of such payment to the undersigned Assistant
United States Attorney within 30 days of the guilty plea .

BIOLOGICAL EVIDENCE
26 . The defendant states that, because he knows that he is actually guilty of the offense to which
he is entering pleas of guilty, he now knowingly waives the right to request DNA testing of any
evidence in this case in the current proceeding, in any post-conviction proceeding under 18 USC
3600, and in any other type of proceeding in which DNA testing may be requested . The defendant
fully understands that, as a result of this waiver of the right to DNA testing, he will never have
another opportunity to have the evidence in this case submitted for DNA testing or to employ the
results of DNA testing to support a claim that he is innocent of the offense to which he is pleading
guilty . Understanding those rights, the defendant hereby knowingly and voluntarily gives up the
right to request DNA testing .

VIOLATION OF PLEA AGREEMENT

27 . If the defendant fails in any way to fulfill each one of his obligations under this Plea
Agreement, including his obligation to cooperate fully and truthfully, the Government may elect to
be released from its commitments under this Plea Agreement and may recommend a sentence up to
and including 262 months' imprisariment . Alternatively, the Government may move the Court to

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void the Plea Agreement and, if such motion is granted, the Government may then prosecute the
defendant for any and all Federal crimes that he has committed related to this case, and may
recommend to the Court any sentence permitted by statute and the Sentencing Guidelines . The
defendant expressly waives any statute of limitations defense and any constitutional or statutory
speedy trial defense to such a prosecution, except to the extent that such a defense exists as of the
date he signs this Plea Agreement . In addition, the defendant agrees that, in such a prosecution, all
admissions and other information that he has provided at any time, including all statements he has
made and all evidence he has produced during proffers, interviews, testimony, and otherwise, may
be used against him, regardless of any constitutional provision, statute, rule, or agreement to the
contrary. Finally, the defendant understands that his violation of the terms of this Plea Agreement
would not entitle him to withdraw his guilty plea in this case .

RESIGNATION
28. The defendant agrees to resign from the Atlanta Police Department on or before the date of
the entry of his guilty plea with the Court .

NO OTHER AGREEMENTS
29. There are no other agreements, promises, representations, or understandings between the
defendant and the Government .

In Open Court this - day of April, 2007 .

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t_,: YONETTE S -BUCHANAN

Assistant Unite States Attorney

SON R . SMITH
Defendant

ION-PETER F . KELLY
Assistant United States A

EDWARD T .M . GARLAND
Attorney for Defendant

ALL PATES
First Assistant United States torney

GARLAND
nrney for Defendant

All)IZ41~~l
~
I&

&M!&
.F
I Special Litigation Counsel, Crimi~la ection
Civil Rights Division
United States Department of Justice

Civil Rights Division

United States Department of Justice

N-23-07
DATE
I have read the Criminal information against me and have discussed it with my attorney . I
understand the charges and the elements of each charge that the Government would have to prove
to convict me at a trial . I have read the foregoing Plea Agreement and have carefully reviewed every
part of it with my attorney . [understand the terms and conditions contained in the Plea Agreement,
and I voluntarily agree to them . I also have discussed with my attorney the rights I may have to

10

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appeal or challenge my sentence, and I understand that the appeal wa iver contained in the Plea
Agreement will prevent me, with the narrow exceptions stated, from appealing my sentence or
challenging my se ntence i n any post -conviction proceeding. No one has threatened or forced me to
plead guilty, and no prom ises or i nducements have been made to me other than those discussed in
the Plea Agreement . The discussions between my attorney and the Government toward reaching a
negotiated plea in this case took place with my pennission . I am fully sat isfied with the
represent n provided to me by my attorney in this case .

M-23-07
ATLTR.E

(Defendant)

DATE

I am JASON R . SMITH's lawyer . I have carefully reviewed the charges and the Plea Agreement
with my client. To my knowledge, my client is making an informed and voluntary decision to plead
guilty and to enter into the Plea Agreement .

SIGNATURE (Dense Attorney) /' DATE

INFORMATION BELOW MUST BE TYPED OR PRINTED

JASON R . SMITH
NAME (Defendant)

EDWARD T .M . GARLAND
NAME (Attorney for Defendant)

l/ 7'r ~ Cwvnon
STREET

3151 M- f11c o r

STREET

A~4mr%L

~ 4 .30301

CITY & STATE

CITY & STATE ZIP CODE

ZIP CODE

PHONE NUMBER ~*_3 Y" 0076

PHONE NUMBER _fil _Z~2-1215

STATE BAR OF GEORGIA NUMBER

2911

Filed in Open Court

By

11

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U . S . DEPARTMENT OF JUSTICE
Statement of Special Assessment Account

This statement reflects your special assessment only . There may be other penalties imposed at
sentencing .

INSTRUCTIONS :
1 . PAYMENT MUST BE MADE BY CERTIFIED CHECK OR MONEY ORD ER
PAYABLE TO .
CLERK OF COURT , U.S . DISTRICT COURT
*PERSONAL CHECKS WILL NOT BE ACCEPTED *
2. PAYMENT MUST REACH THE CLERK'S OFFICE WITHIN 30 DAYS OF THE
ENTRY OF YOUR GUILTY PLEA
3. PAYMENT SHOULD BE SENT OR HAND DELIVERED TO:
Clerk of Court, U .S . District Court
2211 U .S . Courthouse
75 Spring Street, S .W .
Atlanta, Georgia 30303

(Do not Send Cash)

4. INCLUDE DEFENDANT'S NAME ON CERTIFIED CHECK OR MONEY
ORDER
5.

ENCLOSE THIS COUPON TO INSURE PROPER AND PROMPT APPLICATION

OF PAYMENT

6.

PROVIDE PROOF OF PAYMENT TO THE ABOVE-SIGNED AUSA WITHIN 30

DAYS OF THE GUILTY PLEA

12

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Exhibit 1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DrVISION

UNITED STATES OF AMERICA

CRIN4fNAL ACTION
v.

NO .
JASON R . SMITH

STATEMENT OF FACTS
The defendants admit that the Government could prove the following facts if the case
proceeded to trial :

Background
From in or about December 1999 through the present, defendant JASON R.
SMITH has been employed as a police officer with the Atlanta Police Department
("APD" ).
From about June 2005 through about December 2006, SMITH worked in the
narcotics unit of APD .
On many occasions, SMITH and other APD officers made false statements, in the
form of sworn affidavits, to state magistrate judges in order to procure search
warrants for residences and other locations, where SMITH and the other officers
believed illegal drugs would be found .
4 . Once a search warrant was unlawfully procured through such false statements,
SMITH and other officers would execute the warrant . That is, the defendant and
others would enter the location armed, and would detain, sometimes by force or
physical restraint, any occupants . The officers would then search the residence . If
drugs were found, the occupants would be arrested and charged with drug
possession and/or distribution .
Because they obtained search warrants based on unreliable and false information,
SMITH and other officers had on occasion searched residences where there were
no drugs and the occupants were not drug dealers .

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The Killin g of Kathryn Johnston on No vember 21 , 2006

6 . On November 21, 2006, defendant SMITH, as well as GREGG JUNNIER and Coconspirator A, both fellow APD narcotics officers, committed and caused to be
committed the following overt acts, among others, in Fulton County, which is in the
Northern District of Georgia :
7 . At about 2 :00 p .m ., SMITH, JUNNIER, and Co-conspirator A drove in a marked
patrol car to a set of apartments located at 350 Lanier Street, a "hot spot" where they
had recovered illegal drugs in the past . JUNNIER and Co-conspirator A entered the
apartments while SMITH checked the wooded area behind the apartments . SMITH
recovered three plastic sandwich bags in the wooded area ; each sandwich bag
contained smaller baggier, and each baggie contained marijuana . One bag contained
approximately forty to fifty blue baggier ; the second contained several baggier of
various colors ; and the third contained several clear baggier . SMITH placed all three
sandwich bags in the trunk of the patrol car .
8 . At about 3 :30 p .m ., SMITH received a phone call from a Confidential Reliable
Informant ("Informant 1") advising that there was a man in a gold-colored jacket
selling drugs in front of a store located on Simpson Road . SMITH, .SUNNIER, and
Co-conspirator A proceeded to Simpson Road in the patrol car . Upon arrival, they
saw a man ("X") in agold-colored j acket . Upon seeing the patrol car, X appeared to
put something in his mouth . Co-conspirator A leapt from the car and grabbed X by
the throat . In doing so, X's face struck against a fence, bloodying it .

9 . Co-conspirator A placed X in the patrol car. JUNNIER called for "K-9" officers with
a drug-sniffing dog . SMITH planted under a nearby rock some of the marijuana
found at 350 Lanier Street . When two K-9 officers arrived, they found that marijuana
under a rock. Later, the K-9 officers found another plastic bag containing ten yellow
baggier of marijuana and at least two baggies of crack cocaine . SMITH gathered
both plastic bags and returned to the car.
10 . After the officers told X that he would be charged for the recovered drugs, he told
them that he could direct them to a house where he had observed illegal drugs -specifically, a kilogram of cocaine -- earlier that day . Although X did not state the
address, he had the officers drive him to the house, and pointed out the residence
located at 933 Meal Street . X claimed that he bought crack cocaine in that house
from a black male named "Sam," for whom he provided a physical description .
11 . Without having a Confidential Reliable Informant ("CRI") make a purchase of drugs
at 933 Neal Street, which would have confirmed that drugs were to be found at that
location, and without checking any property records or engaging in any other
investigation to verify the identity of any occupants of that house or otherwise try to

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corroborate what X had told them, SMITH, 3UMVIER,and Co-conspirator A instead

procured a search warrant from a state magistrate without a purchase's having been
made .
12. The three officers drove to the Fulton County Jail, where an affidavit in support of
a warrant could be submitted to a state magistrate . Once the three officers and X
arrived at the Fulton County Jail, the officers did not book X into the jail, but instead
kept him in the patrol car because they intended to release X if they found drugs at
933 Neal Street, making no record of X's drug arrest .
13 . SMITH went inside the Jail and drafted an affidavit in support of a search warrant for
the residence located at 933 Neal Street . SMITH included in that affidavit several
material false statements, including : (a) that he and Co-conspirator A directed a CRI
to the residence at 933 Neal Street, Atlanta, Georgia, for the purpose ofbuying illegal
drugs ; (b) that the CRI was searched to ensure that he did not have any drugs on his
person before proceeding to the residence ; (c) that the CRI was provided with $50
in APD funds to purchase drugs ; (d) that the CRl went to the residence and was met
there by an individual on the front porch who identified himself as "Sam" ; (e) that
"Sam" briefly went into the house, then returned with an object and gave the GRI the
object in exchange for the money; ( 0 that the CRT immediately returned to SMITH
and handed SMITH two bags of crack cocaine ; (g) that the CRI was searched again ;
(h) that the CRS told SMITH that he bought the crack cocaine from a black male
called "Sam" for $50 ; (i) that the informant gave a physical description of "Sam" ;
and (i) that a "no-knock" warrant should be issued because the CRI stated that "Sam"
possessed electronic surveillance equipment in the house, which "Sam" carefully
monitored. The CRI to whom SMITH referred was an individual whom SMITH did
not believe was truly reliable .

14 . SMITH presented the aforementioned false affidavit to a magistrate and falsely swore
to the truth of the statements contained in the affidavit . Based upon this false
information, the magistrate issued a "no-knock"search warrant for 933 Neal Street
at 5 :53 p .m., which authorized the narcotics officers to enter the residence by force
and with no prior identification of themselves as law enforcement officers . Had the
magistrate been advised of the falsity of the affidavit, the search warrant would not
have been issued .
15 . SMITH, JUNNIER, and Co-conspirator A were then joined by other APD narcotics
officers at a staging area . At this time, the officers still had X in their custody .
SMITH gave a briefing to the other officers in which he recounted the false
statements that were contained in his affidavit as if they were true .
16 . At approximately 6 :40 p .m ., SMITH, JUNNIER, and Co-conspirator A, along with
other APD officers, executed the search warrant, in violation of the Fourth

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Amendment to the U .S . Constitution and SMITH and his co-conspirators' oath of

office as APD officers . The officers were all armed with service weapons . SMITH,
JUNNIER, and other officers approached the front door of the residence . Coconspirator A was stationed at the back door of the residence . SMITH and another
officer were responsible for breaching the front door . They first had to pry metal
burglar bars off a screen door, which took more than a minute . As they rammed open
the wooden front door, Kathryn Johnston, an elderly woman and the lone resident
of 933 Neal Street, fired a single shot from a .38-caliber revolver through the front
door . The shot fired by Ms . Johnston did not injure any of the officers . SMITH,
JUNNIER, and four other officers returned fire, with the initial shots going through
the wooden front door as it opened . Five or six shots struck Ms . Johnston . One shot
hit her in the chest and was fatal .
17 . According to ballistics evidence, approximately 39 shots were fired by the six
officers . Ballistics and other forensic analysis are unable to establish which of the
six officers fired the fatal shot, or the four or five other shots that struck Ms .
Johnston . Three officers, including JIJNNIER, were injured by shots (or resultant
shrapnel and debris) fired by the other officers, but all three officers were released
from the hospital by the next morning .
The Attempted Cover- tip
18 . After the shooting of Kathryn Johnston, officers initially searched the house, and
SMITH handcuffed Ms . Johnston . The officers found no other occupants and no
drugs .

19 . SMITH then planted three baggier of marijuana in the basement of the house at 933
Neal Street . Other than the drugs that were planted by SMITH, no illegal drugs were
found at 933 Neal Street .
20. Later that same evening, SMITH called Informant 2, the same CRI whom J UNNIER
had telephoned before procuring the warrant, and instructed Informant 2 to pretend
that the three officers had sent him earlier to purchase drugs at 933 Neat Street and
that he had purchased crack cocaine there . SMITH gave Informant 2 a description
of the house at 933 Neal Street, a description of "Sam," the alleged drug dealer
described in SMITH's false affidavit, and the details of the putative buy .
21 . SMITH informed JUNNIER that he had told superior officers that Co-Conspirator
A and JUNNIER watched Informant 2 make the controlled buy from the patrol car .
JUNNIER told SMITH not to use those details and, instead, to say that SMITH and
Co-conspirator A watched the buy at 933 Neal Street from Informant 2's car .
22 . On or about November 22, 2006, SMITH and Co-conspirator A had a meeting at the

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hospital where JUNNIER and other injured officers were taken after the shooting .
SMITH and Co-conspirator A agreed on certain false details that would be used to
maintain a "cover story" consistent with the false statements in the affidavit .
23 . APD records reflect that on or about November 22, 2006, SMITH submitted two
bags containing crack cocaine to APD Property Management, falsely indicating that
the drugs were bought by an informant at 933 Neat Street on November 21 .
24 . On or about November 22, 2006, SMITH, JUNNIER, and Co-conspirator A, before
meeting with APD Homicide detectives, met to fabricate a story that would explain
the events leading up to the shooting of Kathryn Johnston at 933 Neal Street .
25 . On November 22, 2006, SMITH gave a statement to APD Homicide detectives that
contained several material false statements, including: (a) that, after a suspect
identified 933 Neat Street as a location where a kilogram of cocaine could be found,
SMITH contacted a CRI and instructed the CRI to make a controlled purchase at that
address ; (b) that SMITH witnessed the CRI approach the house ; (c) that the CRI
completed the transaction and reported back to SMITH with two pieces of crack
cocaine, which had cost $50 in city funds ; (d) that SMITH debriefed the CRI, at
which time the CRI advised that the supplier had entered the house and returned a
short time later with the crack cocaine ; and (e) that the CRI provided a description
of the supplier, which matched the description given by the suspect .
26 . On or about November 22, 2006, SMITH and Co-conspirator A retrieved the
remaining clear bags of marijuana that had been seized from 350 Lanier Street on the
previous day . It was from this batch of clear baggies that SMITH had selected the
drugs that he planted in the home of Kathryn Johnston . SMITH and Co-conspirator
A gathered the remaining clear bags of marijuana in the batch, and threw them into
a sewage drain so that they could not be recovered and compared to the planted
drugs .

27. On several occasions after the shooting, SMITH, JUNNIER, and Co-conspirator A
met at various locations to discuss and perfect the cover story and agreed that each
of them would make false statements when they were questioned by law enforcement
officials in order to conceal their criminal conduct . SMITH, JUNNTER and Coconspirator A also obtained and reviewed their own cell phone records of calls to
Informant 2 in order to try to make their story conform with those records .
28 . On or about December 2d, 2006, SMITH met with federal agents in a proffer session
and made false statements consistent with the false statements in the search warrant
affidavit and consistent with the fabricated account that he had concocted with
JUNNIER and Co-conspirator A .

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29 . On or about January 10, 2007, SMITH met with federal agents and admitted that he
had made false statements during his November 22 interview with APD and during
the December 20 proffer session with federal agents .

Case 1:08-cv-00007-MHS Document 112-3 Filed 12/16/09 Page 19 of 27

Exhibit 2
GUILTY PLEA and PLEA AGREEMENT
Ois iriC l Atl om ey

Fuuon County. Geugt a

SUPERIOR COURT
FULTON COUNTY, GEORGIA
INDICTMENT NO .
JASON R . SMITH, defendant, having received a copy of the above-numbered criminal
indictment hereby pleads GUILTY to the reduced charge of voluntary manslaughter on
count one of the indictment, alleging felony murder for the shooting death of Kathryn
Johnston, as well as violation of oath by public officer (count five), false statements (count
six), criminal solicitation (count eight) and perj ury (count thirteen) of said indictment . The
defendant, his counsel, and the Fulton County District Attorney (referred to herein as "the
State"), subject to approval by the Court, have agreed upon a negotiated plea in this case,
the terms of which are as follows :

DEFENDANT'S ADMISSION OF GUILT

1 . The defendant admits that he is pleading guilty because he is in fact guilty of the
reduced charge of voluntary manslaughter as to count one, violation of oath by public
officer (count five), false statements (count six), criminal solicitation (count eight) and
perjury (count thirteen) of said indictment . For the purposes of this plea, the defendant
agrees that, if this case were to go to trial, the State could prove the factual basis set forth
in exhibit 1 , attached hereto and incorporated herein by reference .

FEDERAL GUILTY PLEA AND PLEA AGREEMENT

2 . After entry of his guilty plea before this Court, the defendant will enter a guilty plea in
the United States District Court for the Northern District of Georgia, pursuant to the terms
set forth in the Federal Plea Agreement, entered into with the United States Attorney's
Office for the Northern District of Georgia and the Civil Rights Division of the United States
Department of Justice (collectively, the "Government"), attached hereto as Exhibit 2 .

Case 1:08-cv-00007-MHS Document 112-3 Filed 12/16/09 Page 20 of 27

TRIAL RIGHTS
3. The defendant understands that by pleading guilty, he is giving up the right to plead
not guilty and the right to be tried by a jury . At a trial, the defendant would have the right to
an attorney, and if the defendant could not afford an attorney, the Court would appoint one
to represent the defendant . During the trial, the defendant would be presumed innocent
and the State would have the burden of proving him guilty beyond a reasonable doubt .
The defendant would have the right to confront and cross-examine the witnesses against
him . If the defendant wished, he could testify on his own behalf and present evidence in
his defense, and he could subpoena witnesses to testify on his behalf . If, however, the
defendant did not wish to testify, that fact could not be used against him . If the defendant
were found guilty after a trial, he would have the right to appeal the conviction . The
defendant understands that by pleading guilty, he is giving up all of these rights and there
will not be a trial of any kind . The defendant also understands that he ordinarily would
have the right to appeal his sentence and, under some circumstances, to attack the
sentence in post-conviction proceedings . Finally, the defendant understands that, to plead
guilty, he may have to answer questions posed to him by the Court concerning the rights
that he is giving up and the facts of this case, and the defendant's answers, if untruthful,
may later be used against him in a prosecution for perjury or false statements . The
defendant understands that if he is not a United States citizen, his immigration status may
be affected by his plea . The defendant also understands that he has four (4) years from
the date of the plea to file any habeas petitions . Additionally, the defendant understands
that if he receives any prison sentence in excess of twelve (12) years he may apply for
2

Case 1:08-cv-00007-MHS Document 112-3 Filed 12/16/09 Page 21 of 27

review of his sentence to Superior Courts Sentence Review Panel of Georg ia .

NO ADDITIONAL CHARGES
4 . The Fulton County District Attorney's Office agrees not to bring further criminal
charges against the defendant related to the charges to which he is pleading guilty, except
that the State is free to prosecute the defendant for any other past criminal conductthat (1)
the defendant did not disclose to the State prior to the filing of this Plea Agreementwith the
Court and (2) resulted in death, permanent or life-threatening bodily injury, or serious bodily
injury of any person. The defendant understands that this provision does not bar
prosecution by any other federal, state or local jurisdiction, except as provided in Exhibit 2 .

BOND
5 . Upon entry of his guilty plea, the State agrees to recommend that defendant be
released on a $50 ,000 bond (which may be posted in property) with appropriate conditions ,
pending sentencing . The State w ill provide updates to the Court every six months
conce rning the status of the defendant's cooperation .

STATUTORY MAXIMUM PENALTIES

6 . The defendant understands that, based on his plea of guilty, he will be subject to the
following maximum and mandatory minimum penalties :
(a) Maximum terms of imprisonment :
Count One (Felony Murder) - Life
(reduced to Voluntary Manslaughter - 20 years)

Count Five (Violation of Oath by Public Officer) - 5 years

Count Six (False Statements) - 5 years ;
Count Eight (Criminal Solicitation) - 3 years
Count Thirteen (Perjury) - 10 years ;
(b) Mandatory minimum term of imprisonment on all counts : 1 year .

BINDING

Case 1:08-cv-00007-MHS Document 112-3 Filed 12/16/09 Page 22 of 27

7 . The defendant understands that neither party to this agreement can officially or
legally bind the Superior Court . However, in the event that the Superior Court rejects any or
all of the provisions of this agreement, or refuses to adopt any recommendation made by
the State pursuant hereto, the State will recommend that the defendant be allowed to
withdraw his plea . Should the defendant be permitted to withdraw his plea due to the
Court's rejection of any or all provisions of this plea agreement, the parties agree that this
case will be controlled solely by the terms of the Federal Plea Agreement . If neither Court
accepts the terms of the plea agreements, the provisions of Paragraph 11 shall apply .

COOPERATION
8,

The defendant agrees to cooperate truthfully and completely with the State,

including being debriefed in any forum and providing truthful testimony at any proceeding
resulting from or related to his cooperation . This testimony may include, but is not limited
to, testifying before the Grand Jury, any subsequent trials in Superior Court, criminal
depositions (if any) and in any proceeding in which the defendant has been subpoenaed by
the State to testify . The defendant and his attorney agree that the defendant will make
himself available for subpoena service . The defendant also agrees to disclose the
existence of and to produce to the State any and all books, papers, documents, and other
items of evidentiary value that are in his actual or constructive possession . The defendant
understands that the State and the Government alone will determine what forms of
cooperation to request from the defendant, and the defendant agrees that he will not
engage in any investigation or other cooperation that is not specifically authorized by the
State or Government .

Case 1:08-cv-00007-MHS Document 112-3 Filed 12/16/09 Page 23 of 27

9. The State agrees that any self-incriminating information that was previously
unknown to the State and is provided to the State by the defendant in connection with his
cooperation and as a resuft of this Plea Agreement will not be used in determining the
State's sentencing recommendation, although such information may be disclosed to the
Court . The State also agrees not to bring additional charges against the defendant based
on any information provided by the defendant in connection with his cooperation that was
not known to the State prior to the cooperation ; with the exception of charges based on
criminal conduct that resulted in death, permanent or life-threatening bodily injury, or
serious bodily injury to any person . However, if the State determines that the defendant
has not been completely truthful and candid in his cooperation with the State, he may be
subject to prosecution for perjury, false statements, and any other appropriate charge, and
all information he has provided may be used against him in such a prosecution .

10 . The State agrees to make the extent of the defendant's cooperation known to the
Court at sentencing and to recommend that the Court consider the nature and extent of the
defendant's cooperation in determining the appropriate sentence to be imposed . If the
defendant fails to cooperate fully and truthfully, or if the defendant engages in additional
criminal conduct or other conduct inconsistent with cooperation, he will not be entitled to
any consideration whatsoever pursuant to this paragraph .

STATE'S SENTENCING RECOMMENDATION

11 .

The State agrees to recommend that this Court defer the imposition of sentence

until afterthe United States District Court has entered judgment and imposed its sentence
and after the trials of any and all co-defendants in this matter . The defendant agrees to be
sentenced by the Superior Court at that time . The parties agree that the Government's
recommendations as to the defendant's federal sentence wigl be determined by the terms
set forth in Exhibit 2 . The State agrees further to recommend that the Superior Court
sentence the defendant to a prison term equal to, and to run concurrent with, the sentence
imposed by the United States District Court pursuant to the federal sentencing guidelines .
In the event that the defendant's federal plea agreement is not accepted by the United

Case 1:08-cv-00007-MHS Document 112-3 Filed 12/16/09 Page 24 of 27

States District Court, and therefore no sentence is imposed by that court, the State agrees
to recommend the same prison sentence recommended by the Government pursuant to
the federal Plea Agreement . In the event that neither the Fulton Superior Court or the
Northern District of Georgia accept the negotiated plea, as contemplated by this
agreement, the defendant understands that the State of Georgia will still have an active
and pursuable indictment against him and may fully pursue the indictment in accordance
with all applicable federal and state constitutional requirements and provisions .

12.

If either Court determines that the defendant has not cooperated fully and truthfully,

the State may recommend a sentence up to 20 years in prison, notwithstanding any other

provision of this agreement .

VIOLATION OF PLEA AGREEEMENT

13. 1f the defendant fails in any way to fulfill each one of his obligations under this plea
agreement, including his obligation to cooperate fully and truthfully, the State may elect to
be released from its commitments under this plea agreement and may chose to proceed
with the defendant's plea of guilty and may recommend a sentence up to and including 20
years imprisonment . In the alternative, the State may elect to void this plea agreement,
and the State may then prosecute the defendant under the original indictment for any and
all State crimes that he has committed related to this case, and may recommend to the
Court any sentence valid under Georgia law without regard to any statutes of limitations .
The defendant expressly waives any statute of limitations defense and any constitutional or
statutory speedy trial defense to such a prosecution, except to the extent that such a
defense exists as of the date he signs this plea agreement . In addition, the defendant
agrees that, in a prosecution resulting from a violation of this agreement, all admissions
and other information he has provided at any time, including all statements he has made
and all evidence he has produced during proffers, interviews, testimony, and otherwise,
may be used against him, regardless of any constitutional provision, statute, rule or
agreement to the contrary . The defendant understands that his violation of the terms of this
plea agreement would not entitle him to withdraw his guilty plea in this case .
6

Case 1:08-cv-00007-MHS Document 112-3 Filed 12/16/09 Page 25 of 27

NO OTHER AGREEMENTS
14 .

The parties acknowledge that there are no other agreements , promises ,

representations , or understand ings between the defendant and the State .

In Open Court t his Z5 day of Ap ri l , 2 007 .

-ArSHUK A L. INGRAM
Senior Assistant Distr i ct Attorney

Jason R. Sm ith
Defendant

PAUL L . HOWARD , .f R.
~;
Fulton Co unty District Attorney q*4*vtrA-)j

Edward Garland or Don Samuel

Attorney for Defendant

-~
o TE

Case 1:08-cv-00007-MHS Document 112-3 Filed 12/16/09 Page 26 of 27

have read the Criminal Indictment against me and have discussed it with my
attorney . I understand the charges and the elements of each charge that the State would
have to prove to convict me at a trial . I have read the foregoing Plea Agreement and have
carefully reviewed every part of it with my attorney . I understand the terms and conditions
contained in the Plea Agreement, and I voluntarily agree to them . I also have discussed
with my attorney the rights I may have to appeal or challenge my sentence, and
understand that the appeal waiver contained in the Plea Agreement will prevent me, with
the narrow exceptions stated, from appealing my sentence or challenging my sentence in
any post-conviction proceeding . No one has threatened or forced me to plead guilty, and
no promises or inducements have been made to me other than those discussed in the Plea
Agreement . The discussions between my attorney and the State toward reaching a
negotiated plea in this case took place with my permission . I am fully satisfied with the
representation provided to me by my attorney in this case .

SIGNATURE (Defendant)

DATE

am Jason R . Smith's, lawyer . I have carefully rev i ewed the charges and the Plea
Agreement with my client . To my kn dge , my c lient is making an informed and
volu si t d g o enter into the Plea Agreement .

SIGNATURE (Defense Attorney)

DATE ~ ~

""' p

2`3

INFORMATION BELOW MUST BE TYPED OR PRINTED

EDWARI) GARLAND

JASON R . SMITH

NAME (Attorney for Defendant)

NAME (Defendant)

STREET

STREET

CITY & STATE ZIP CODE

CITY & STATE

PHONE NUMBER

PHONE NUMBER

ZIP CODE

Case 1:08-cv-00007-MHS Document 112-3 Filed 12/16/09 Page 27 of 27

STATE BAR OF GEORGIA NUMBER

Filed in Open Court

By