Exclusive: Couple's Son Had His Hand On Gun In Fatal Shooting
FORT LAUDERDALE (CBSMiami) -- After more than three years of investigating, the Broward State Attorney's Office has cleared a South Florida man in the shooting death of his girlfriend. The case garnered headlines because it was the couple's two-year-old son who had his hands on the gun at the time the fatal shot rang out in his mother's Miramar apartment.
In a close-out memo obtained by CBS 4 News, prosecutors say that Julia Bennett was "accidentally shot once when Hewart Bailey attempted to retrieve his gun from their son." The memo also says that "Due to the child's age and other circumstances surrounding this unfortunate incident...no criminal charges can be filed."
The document makes clear that investigators took a long, hard look at Bailey and decided that even though he made a fatal mistake in the handling of his firearm, he did not commit a crime.
It was April 20, 2011, when Julia Bennett was home in her Miramar apartment with her son. The boy's father, Bailey, who was married at the time according to prosecutors, was visiting. Prosecutors say Bailey had a Glock 9mm with him when he arrived at Bennett's apartment. Bailey said he thought he cleared the gun's chamber then put the gun under some couch pillows.
At some point the couple's son grabbed the gun and his mother warned the boy to put it down.
Prosecutors write that "Hewart Bailey stated that he grabbed his son so suddenly that he knocked (the boy) down, just as the gun went off, firing one shot. Hewart Bailey ultimately admitted to the possibility that when he grabbed his son's hand it may have caused the gun to fire."
After the shot rang out, Bailey made an emotional 911 call.
The memo says prosecutors paid a great deal of attention to the 911 call. They said it showed that Bailey "was clearly distressed." Miramar Police, who were in the apartment complex at the time on an unrelated call, were at the apartment within minutes and what they found is another reason prosecutors declined to file charges.
The memo says, "…Miramar Police Department Officers' rapid response to the scene of the shooting would seem to rule out any possibility of someone 'staging the scene' to make the shooting appear accidental."
As investigators thoroughly pored over the evidence of Bennett's death they interviewed Bailey. The memo says "…Hewart tells detectives that the one thing he wants is for God to save her (referring to Julia). This conduct does not comport with an individual who intended to shoot or kill his girlfriend."
Prosecutors say the evidence at the scene matched Bailey's story and there were no inconsistencies in what Bailey told police. Investigators write that there is "no evidence that Hewart Bailey deliberately pointed the gun at his girlfriend and pulled the trigger."
Based on all the information, prosecutors write that "none of these actions would rise to the level of culpable negligence necessary to charge manslaughter."
The memo details how investigators say they studied the gun as well as the trigger on the gun to look at the DNA on the weapon. Prosecutors said they could not exclude Bailey or his son from the DNA found on the firearm. Prosecutors also say it has been shown that small children do have the strength to pull the trigger on semiautomatic weapons.
We showed the documents to Julia Bennett's uncle Hugh Pearce. He said the family accepts the prosecutor's decision.
"Based on the state attorney investigation, if they come to that conclusion there's not much we can do," Pearce said. "We just have to go by that."
As for the boy, Pearce said the child lives with his father. He also said they miss Julia every day.
"It's very hard but we just have to move on," Pearce said.
CBS 4 News tried to speak with Hewart Bailey but we could not reach him.
WATCH: Carey Codd's report
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