UPDATE (4:08am): This story has been updated to include information from the county prosecutor's statement and the Deloatch family's response.
NEW BRUNSWICK, NJ—A grand jury sitting in New Brunswick has decided not to file charges against two New Brunswick police officers involved in the killing of a 46-year-old unarmed man.
But, in a move that the man's next-of-kin called "very unprofessional," the county prosecutor's office announced the decision to the media without informing them first.
Kaplan's office had contacted one of Mr. Deloatch's two adult sons late Thursday afternoon and informed them the grand jury had reached a decision.
However, the Deloatches and their attorneys were unable to meet until Friday morning. Attorneys say they asked the prosecutor's office to delay the public announcement of the decision until after their 8:30 am meeting and were under the impression that would be the case.
Instead, the prosecutor met with the deceased's brother Tommy, and his wife Barbara Deloatch, who works at the Middlesex County Sheriff's Department, before releasing a 5-page statement announcing the "no bill" decision at 8:08pm.
"While the shooting is a tragedy on many levels, it is clear that the grand jury conducted a thorough, impartial and independent review," Kaplan said in the press statement that may have raised more questions than it answered.
New Brunswick police officer Brad Berdel killed city resident Barry Deloatch on the evening of September 22, 2011. He and his partner that night, Daniel Mazan, have been on paid leave since the incident.
New Brunswick Police Director Anthony Caputo told the Star-Ledger's Tom Haydon last night that he would "start the process to return them to active duty."
Deloatch's sons told reporters they were "devastated" when they found out the news through the grapevine, instead of directly from the county.
Community activists have called for the case to be moved to a different county because of the cozy relationship between the New Brunswick Police Department and the Middlesex County Prosecutor's Office. The two entities share an office space at 25 Kirkpatrick Street.
Activists have also called for Kaplan to charge Berdel (and at times Mazan) with murder, and for the officers to be fired from the force.
GRAND JURY CONVENED LATER THAN PLANNED
On December 12 of last year, 81 days after the killing, Kaplan first asked for a grand jury to be empaneled, saying the a state attorney general's regulation "requires that unless disputed facts indicate that the use of force was justifiable under the law, the matter must be presented to a grand jury."
That was supposed to take place in January.
But according to the prosecutor's statement, the 23 members of the grand jury were first summoned on March 1.
Interestingly, the grand jury only heard this one case, a practice that is usually reserved for a special grand jury. Typically, grand juries are presented with several different cases.
The only difference is that a special grand jury would have heard the case over consecutive days.
Originally prosecutor Kaplan had requested a special grand jury but his request was subsequently denied by Middlesex County Judge Travis Francis in February.
So, instead, the 23 jurors met every Thursday for eleven weeks and heard testimony from 57 witnesses and reviewed 280 exhibits of evidence.
PROSECUTOR: ONLY WEAPON BERDEL HAD WAS HIS GUN
Deloatch, age 46, has been accused by attorneys for the officers of fleeing the police before getting caught up in a Throop Avenue backyard and allegedly overpowering Mazan, a former Rutgers University football player who graduated in 2007.
Deloatch was just five feet, four inches tall, and weighed just over 100 pounds.
The officer's attorneys have said that Deloatch, who was supposedly striking Mazan with a wooden 2"x4". The officer refered to it as a "wooden stick" in police radio transmissions shortly after Deloatch was fatally shot.
The release said Mazan sustained injuries to his right hand and arm, while Berdel was not injured. Both officers were taken to the hospital.
The statement also says that their investigation, "revealed that Officer Berdel did not have either of two police-issue batons or a canister of chemical spray used to subdue suspects."
But in the very next sentence it indicates "Officer Mazan was equipped with a spray canister, but did not have his batons." The only logical explanation would be that his chemical spray canister was empty, though the release does not explicitly say so.
Following the killing, Kaplan's office arranged to use county funds to purchase one single taser for every police department in the county.
OFFICER BERDEL'S TRACK RECORD
Berdel has been investigated for internal affairs complaints seven times since 2006, and Mazan twice. One of Berdel's complaints from 2006 was filed by a fellow officer. As of October 2011 that complaint is still "pending."
Three complaints lodged against him over the next two years were resolved in his favor, disposed as either "not sustained" or "exonerated."
But, in 2010, Berdel received three complaints, two of which had outcomes that were not clear, according to New Brunswick Patch, the other was still "pending."
Meanwhile, Mazan got two complaints that year, one with an unclear outcome and the other "exonerated with counseling."
And then just one month before he shot and killed Deloatch, a resident filed a demeanor complaint against Berdel with internal affairs. He was exonerated.
Shortly after Deloatch's killing, massive corruption in the internal affairs division of NBPD was uncovered. Sgt. Richard Rowe was charged with mishandling 81 complaints during his tenure in charge of the division, which handles complaints against city police officers.
Berdel also filed an above average number of use of force reports during his career.
According to an analysis by Patch.com's Joe Malinconico, in his career, Berdel twelve times reported using a "compliance hold," using his hands or fists five times, using his chemical spray four times, using kicking on suspects twice.
Prior to the incident with Deloatch, he had never reported firing his service weapon.
No use of force reports were filed in the Deloatch incident until February 8, 2012, shortly before the grand jury was first convened, and over four months after the killing.
THE "OFFICIAL" STORY
The release details, for the first time, the official story of the authorities:
"The on-going investigation indicated certain factors that may have played a role in the confrontation between Mr. Deloatch and the two officers… These factors include Mr. Deloatch’s fleeing the scene on Seaman Street after Officer Mazan repeatedly ordered him to show his hands, with the last command occurring as the officer’s gun was drawn."
It goes on to say that an autopsy "revealed the presence of heroin and cocaine in Deloatch's bloodstream."
"As a result, an independent review of the facts was needed to determine whether and to what extent these facts played a role in Mr. Deloatch’s decision to flee."
Here are the highlights of the NBPD's side of the story, as told by the prosecutor's office:
"Officer Brad Berdel and his partner, Officer Daniel Mazan, saw several men, including Mr. Deloatch, emerge from an alley in the area of Seaman Street between Throop and Remsen avenues.
"As the police vehicle got closer, they heard someone yell '5-0,' a common street term warning of the arrival of police. As further reported by the New Brunswick Police Department, the officers stopped to investigate.
"Officer Mazan got out of the passenger side of the patrol car and asked the men to show him their hands. All complied, except Mr. Deloatch who, according to police reports, kept his left hand behind him.
"Despite repeated demands, Mr. Deloatch failed to comply, causing Officer Mazan to draw his weapon and make a final demand for Mr. Deloatch to show his hands, New Brunswick police reported.
"Mr. Deloatch fled. Officer Mazan holstered his weapon and ran after him. Officer Berdel radioed police headquarters, advising of the foot pursuit, and followed in the patrol car.
"Officer Mazan caught up to Mr. Deloatch in an alley between 103 and 105 Throop Avenue, a distance of approximately one-and-a-half blocks from the initial stop. Police reported that a struggle ensued.
"Officer Berdel arrived and saw Officer Mazan jump over a gate leading into the alley. Officer Berdel entered the alley during the struggle, and, following a series of events that required the grand jury to scrutinize his decision, fired a single shot from his service weapon, striking and killing Mr. Deloatch…
"The New Brunswick Police Department subsequently reported that Mr. Deloatch was attempting to assault Officer Mazan, and was swinging a piece of wood that he had picked up."
In January, New Brunswick police officers shot a 19-year-old who was firing a starter's pistol on Remsen Avenue, paralyzing him. That case, too, will be before a grand jury in the near future.
Kaplan said he will be referring the Deloatch case back to the New Brunswick Police Department for an administrative review of whether department rules were broken in the killing.
Editor's Note: The author of this article, and the publisher of this website, have both been supportive of the Deloatch family, and advocated for moving the case against officer Berdel to a different jurisdiction to eliminate what we believe to be an inherent conflict of interest.