ATLANTA — A U.S. Marshal and Clayton County police officer charged in Fulton County with murdering Jamarion Robinson are both now seeking to have their case moved to federal court.
Robinson is the man shot 59 times by law enforcement in 2016, according to a medical examiner report. If the case is moved, federal court filings show the pair plan to seek immunity as federal officers.
A Fulton County grand jury indicted U.S. Marshal Eric Heinze and Clayton County Police Officer Kristopher Hutchens on Tuesday, charging them with felony murder along with several other crimes connected to Robinson's death.
Robinson was killed as U.S. Marshals attempted to arrest him on outstanding warrants. At the time U.S. Marshals reported Robinson had a gun. There is cell phone video from nearby the incident which captured audio of nearly three minutes of gunfire.
There is no body camera video of the shooting as federal policies at the time outlawed federal officers or local officers assisting them from wearing body cameras.
Late Thursday, attorney Lance LoRusso, on behalf of Heinze, and attorney Don Samuel, on behalf of Hutchens, filed nearly identical notices in federal court seeking to have their case moved.
"Kris Hutchens was a deputized United States Marshal acting under the scope of the US Marshals Service, so he is entitled to be tried in federal court as opposed to state court," Samuel said. "And he would be entitled to immunity if the court in federal court decides that his conduct was reasonable and in the course of his federal officials then the case would be dismissed."
LoRusso made the same argument for his client in his filing.
Samuel said attempting to move a criminal case from a state court to federal court in this fashion is rare, but he added prosecuting a federal officer on the state level for actions they took while working in their federal position is also rare.
"A rare procedure that we are invoking to protect his rights because he was a federal official, he was acting under federal authority so he isn't subject to state prosecution," Samuel said.
Currently, the prosecution of Heinze and Hutchens is being handled by the office of Fulton County District Attorney Fani Willis.
11Alive legal analyst Pate Pate said Willis could argue the officers don't qualify to have the case moved.
"Fani Willis could show up and argue they weren't acting under color of law, that they weren't doing their jobs," Pate explained. "They were doing something more, that is they were committing a crime under Georgia law."
If the case is moved to federal court, Pate said prosecutors could be facing an uphill battle.
In response to a previously filed wrongful death civil lawsuit in federal court related to Robinson's death, U.S. District Court Judge Timothy C. Batten, Sr. ruled in favor of the officers. However, Robinson's family has appealed that ruling.
The request to move the criminal case to federal court though has also been assigned to Judge Batten, according to federal court records.
"I think it will make it more difficult because Judge Batten has already dismissed the civil case and had to find that the officers weren't acting outside of the scope of their duties," Pate said. "I do think it is a little bit more difficult. We aren't starting from a clean slate here, but the standard is a bit different in civil cases from criminal cases."
For now, the case in Fulton County remains active and county court records show there are active warrants out for the arrests of Hutchens and Heinze.
Samuel said on Thursday Fulton County Superior Court Judge Ural Glanville gave the defendants seven days to turn themselves in and has already set bonds for them. Samuel said Hutchens plans to turn himself in early next week.
11Alive was unable to reach LoRusso Friday to inquire about Heinze's plans to turn himself in.
Fulton County Superior Court didn't respond to inquires for details of any bonds that may have been set for Hutchens and Heinze.
Pate said hearing the officers are apparently being given the opportunity to turn themselves in and already know they will presumably receive bond at that time is unique.
"It isn't all standard," Pate said. "Clearly Judge Glanville is taking into account that this is a law enforcement officer, there doesn't seem to be a concern that he will report to jail at some point, but no it isn't standard procedure. Most people if there is an arrest warrant, especially for murder, they're going to get arrested immediately and taken to jail and bond is going to be an uphill battle if they get it all."