ATLANTA — The Georgia Bureau of Investigation is launching a new investigation into the Ahmaud Arbery case, this time on how it was handled by the offices of the district attorneys of the Brunswick and Waycross judicial circuits.
The GBI said the investigation could involve possible prosecutorial misconduct. (Read the full statement by the GBI below.)
Arbery was shot and killed during a confrontation with a father and son, Greg and Travis McMichael, as he jogged through their neighborhood. The McMichaels said they suspected him of burglary and were attempting to make a citizen’s arrest.
Greg McMichael had worked as an investigator for the Glynn County police department for 20 years before he retired last year.
The probe of the handling of the case centers on two southeast Georgia district attorneys who recused themselves from the case because they knew and had worked with Greg McMichael.
The first district attorney assigned to the case, Glynn County DA Jackie Johnson, recused herself because Greg McMichael used to work for her department.
After recusing herself, Johnson suggested Waycross District Attorney George Barhill take over the case, apparently without disclosing to Georgia’s Attorney General, Chris Carr, that Barnhill had already told police there was insufficient probable cause to issue arrest warrants.
Barnhill wrote a letter to police exonerating the McMichaels the day after the shooting. Barnhill eventually recused himself because his son used to work with Greg McMichael.
The McMichaels were not arrested on murder charges until 47 days after Arbery’s death, shortly after a video surfaced showing the shooting and sparking nationwide outrage.
Channel 2′s Mark Winne talked to Carr about the investigation Tuesday.
“We have some concerns about the communication and the actions that both of the district attorneys may have taken or have been engaged in,” Carr said. “We’re concerned about information that we knew and information that we may not have been told."
Carr said he was not aware when he assigned the case to Barnhill on Feb. 27 that Barnhill had already written letter to police saying he didn’t see grounds for the McMichaels’ arrests.
“He made no indication to you he had had prior involvement in the case?” Winne asked Carr.
“No," Carr said.
“Should he have?” Winne asked.
“I believe he should have,” Carr said.
On Tuesday, Glynn County DA Johnson released the following statement:
“We are confident that any investigation will ultimately show that our office acted appropriately under the circumstances. There is a public misconception about this case due to false allegations against our office by those with an agenda. Our obligation has been, and will always be, to honor, protect, and abide by the law. In the interest of protecting the integrity of any future legal proceedings, our office has no further comment at this time."
An intermediary said Barnhill is not giving interviews because he doesn’t want to violate any state code of professional conduct rules.
Last week, the National Association of District Attorneys condemned Barnhill’s actions.
“No prosecutor should inject his or her opinion into a pending case to the point where she or he becomes a potential witness and risks compromising the just outcome of a case," the association wrote.
Rally calls for new laws, removal of DAs from office:
On Tuesday, state politicians, clergy members and friends and family of Arbery gathered in Brunswick to ask that Johnson and Barnhill be removed from office.
“She must go because she needs to go,” Bernice Singleton said. “This stuff has got to stop.”
“We cannot allow them to remain in office,” state Sen. Lester Jackson said. “Failure to do so would leave the fox in the henhouse.”
State Rep. James Beverly said the governor should go a step further, and “if it’s appropriate, that they be charged with criminal obstruction.”
The group also asked for lawmakers and the governor to support passage of hate crimes legislation. Right now, Georgia does not have hate crime legislation at the state level.
Beverly suggested any such legislation should be named after Arbery.
Samantha Gilder agreed.
“We have to remember this incident. And we have to say his name. And we have to change,” Gilder said.
Carr has also asked that the Department of Justice look into Arbery’s death. Though he has not mentioned hate crime laws specifically, Carr said there are resources at the federal level that are not available at the state level.
The Department of Justice said it is now considering hate crime charges against the McMichaels.
People at Tuesday’s rally also urged the governor to abolish the citizen’s arrest law, saying it has made vigilantes out of some people. They said they don’t want anyone else to think they have the power to do what the McMichaels are accused of doing.
“In light of the Ahmaud Arbery case, should Georgia take another look at its citizen’s arrest law?” Winne asked Carr.
“I think it would be appropriate for us to evaluate all legislation that would ensure that a case like this doesn’t happen again,” Carr said.
A new prosecutor:
On Monday, Carr appointed another district attorney to the case, Cobb County’s Joyette Holmes. Holmes has no ties to southeast Georgia and doesn’t know anyone involved in the case.
“Today, our office formally appointed District Attorney Joyette M. Holmes of the Cobb County Judicial Circuit to lead the prosecution," Carr said Monday. "District Attorney Holmes is a respected attorney with experience, both as a lawyer and a judge, and the Cobb County District Attorney’s office has the resources, personnel and experience to lead this prosecution and ensure justice is done.”
During a news conference Tuesday afternoon, Gov. Brian Kemp said he hopes the new investigation will get to the bottom of what happened and give Georgians some peace.
“Friday, May 8, would have been Ahmaud’s 26th birthday, and Georgians all across our state ran 2.23 miles to celebrate his life and draw attention to the case," Kemp said. "It has been an emotional time, and our prayers remain with his family, loved ones, and the community as a whole. There are many questions that have yet to be answered. And frankly, Georgians deserve the truth.”
Kemp said he has great confidence in Holmes, the newest prosecutor on the case.
“It is my belief that truth and justice will prevail in Georgia,” Kemp said.
Here is the full news release from the GBI:
"It is the responsibility of the Attorney General under O.C.G.A. § 15-18-5 to appoint a prosecutor when a district attorney’s office is disqualified from a prosecution. The law provides that the Attorney General can only perform that function when notified of a conflict by either a district attorney or the presiding judge. For these appointments to be made appropriately, however, it is crucial that the Attorney General be provided with correct and sufficient information.
In this case, Mr. Arbery was shot and killed in Glynn County, in the Brunswick Judicial Circuit, on February 23, 2020. Four days later, on February 27, 2020, the Attorney General’s Office received a letter from Jackie Johnson, the District Attorney of the Brunswick Judicial Circuit, advising that she had a conflict and that she was requesting the appointment of another prosecutor. Ms. Johnson wrote that the reason for the conflict was because the investigation into Mr. Arbery’s death involved Greg McMichael, a former investigator with her office. Shortly after receipt of Ms. Johnson’s letter, this office was made aware that Ms. Johnson had contacted George Barnhill, District Attorney of the Waycross Judicial Circuit, and that he had agreed to accept the case. This office confirmed with Mr. Barnhill and, pursuant to O.C.G.A. § 15-18-5, this office appointed Mr. Barnhill to prosecute the case on the same date Ms. Johnson’s letter was received.
Not long after Mr. Barnhill’s appointment, he and Ms. Johnson learned that Mr. Barnhill’s son, an assistant district attorney in Ms. Johnson’s office, had worked with Mr. McMichael on a prosecution involving Mr. Arbery. Mr. Barnhill, however, held onto the case for several more weeks after making this discovery. On April 7, 2020, the Attorney General received correspondence from Mr. Barnhill advising of a conflict and requesting the appointment of another prosecutor. Mr. Barnhill cited his son’s involvement with Mr. McMichael and Mr. Arbery as a reason for his request.
Mr. Barnhill’s letter failed to disclose his involvement in this case prior to his appointment. In her conflict letter of February 27, 2020, Ms. Johnson had advised that the Glynn County Police Department was “currently investigating” the shooting death of Mr. Arbery, and that she was requesting new counsel to advise the police. Unknown and undisclosed to the Attorney General, however, Mr. Barnhill had already provided an opinion to the Glynn County Police Department on February 24, 2020, that he did not see grounds for the arrest of any of the individuals involved in Mr. Arbery’s death. He additionally stated his opinion to the Glynn County Police Department in writing that there was insufficient probable cause to make any arrests in the case and that he would be asking the Attorney General to appoint another prosecutor.
After receipt of Mr. Barnhill’s conflict letter, the Attorney General then appointed District Attorney Tom Durden of the Atlantic Judicial Circuit to this case on April 13, 2020. On May 5, 2020, Mr. Durden requested that your agency conduct an investigation into Mr. Arbery’s death. Two days later your agency arrested Mr. McMichael and his son for aggravated assault and felony murder for Mr. Arbery’s death."