DA's office seeks to appeal in case of ex-cop who shot handcuffed man in leg
York County prosecutors are asking to appeal the decision of a judge who denied their request to drop the simple assault case against former Southwestern Regional police officer Stu Harrison.
Harrison shot a handcuffed man who was sitting in the back of a police cruiser.
At a June 15 hearing, presiding Common Pleas Judge Maria Musti Cook said she "had a number of concerns" about the prosecution's intention to nol pros, meaning dismiss, the charge.
Cases are generally nol prossed because the evidence in them doesn't support convictions, she noted.
"We did not find this to be a case of insufficient evidence," Cook said. "We find that the purpose of nol pros has not been met."
On Thursday, first assistant district attorney Tim Barker filed a motion asking Cook to amend her order in such a way that it allows prosecutors to appeal her decision while the case against Harrison remains active.
Barker argued there is "substantial ground for difference of opinion" regarding the law and noted that an "immediate appeal of the order may materially advance the ultimate determination of the matter."
Incorrect standard? The motion argues that Cook applied an incorrect standard of review in making her decision — one that considered only whether there was enough evidence in the case for Harrison to stand trial.
Barker noted there's another standard, called the "abuse of discretion" standard, in which judges must determine whether prosecutors are acting in bad faith or abused their discretion in cases where they choose to drop charges for policy reasons, rather than evidentiary reasons.
Cook would have had to determine the DA's office abused its discretion to deny the nol pros motion under that standard, and she made no such finding, according to the motion.
Barker argues that the judge also erred by not considering the prosecution's "many policy considerations" outlined at the June 15 hearing, such as Harrison's diversionary efforts and his purported lack of rehabilitative needs.
The motion alleges Cook "violated the constitutional requirements governing Separation of Powers."
It also notes that Harrison's defense attorneys, Chris Ferro and Ed Paskey, concur with Barker's efforts to appeal Cook's decision to a higher court.
Disappointed, confused: "Why is the DA doing this? I don't understand," said Christine Smith, mother of Ryan Shane Smith, the man shot by Harrison. Ryan Smith is currently in county prison and could not be reached for immediate comment.
"I'm very disappointed and confused," she said. "I thought maybe they were (now) going to do a plea deal."
She said she hasn't heard from the DA's office since the June 15 hearing and was shocked to learn from a reporter that prosecutors are trying to appeal Cook's order.
"Two judges now have said there is enough evidence to go to trial," she said, meaning Cook and the district judge who presided over Harrison's preliminary hearing.
The background: District Attorney Dave Sunday filed a motion May 28 asking Cook to dismiss the misdemeanor simple assault case against Harrison in the "interests of justice."
In response, Ryan Smith wrote a letter to Cook opposing the request, asking that she set a hearing and stating, "I was pushed to the side and brushed under the rug and covered up."
Prosecutors maintain dropping the charge is in the interests of justice. Their motion states Harrison, 58, now of South Carolina, was a well-respected police officer for 16 years before being suspended for the shooting and that he served as a Marine before becoming an officer. He has spoken to two groups of cadets in a police academy about his mistakes and how to avoid them, the DA has said.
It's believed by officials that Harrison inadvertently shot Smith after grabbing his .40-caliber handgun instead of his Taser, putting it against Smith's leg and firing when Smith wouldn't pull his legs inside the cruiser after being arrested for refusing to leave a Spring Grove bank.
Sunday noted that in similar cases elsewhere, most district attorney's offices have chosen not to file any charges against officers, and that if found guilty of simple assault, Harrison might get a year of probation or even less punishment.
Christine Smith said she's still in favor of a plea agreement in which Harrison pleads guilty to something and receives no prison time.
Bank disturbance: The shooting happened May 30, 2018, in the parking lot of Santander Bank at 39 W. Hanover St. in Spring Grove.
Harrison was called there near the end of his shift because Ryan Smith, who has mental-health issues, was causing a disturbance in the bank, asking for his money when he didn't have an account there.
On May 11, Ryan Smith and his mother filed a lawsuit in Harrisburg's federal court against Harrison, the former Southwestern Regional Police Department, its now-disbanded police board and Spring Grove borough.
— Reach senior crime reporter Liz Evans Scolforo at email@example.com or on Twitter at @LizScolforoYD.