State guidelines ignored by prosecutors in Arbery death probe

“Once you have a conflict, the prosecutor’s office is done — no indictments, no accusations, no bonds and no finding a substitute prosecutor,” according to a PowerPoint presentation of training offered two years ago by Attorney General Chris Carr’s office and by the Prosecuting Attorneys’ Council of Georgia.

Greg McMichael, one of the men involved in Arbery’s Feb. 23 shooting death, is now retired but once worked in Johnson’s office. For that reason, she recused herself and enlisted the help of Waycross District Attorney George Barnhill. A day after the shooting, Barnhill met with Glynn County Police, reviewed evidence and found that neither McMichael, 64, nor his son, Travis McMichael, 34, had committed a crime when they armed themselves and pursued Arbery. The pursuit eventually led to a confrontation that resulted in Travis McMichael firing his shotgun at Arbery, 25.

The two southeast Georgia district attorneys and their actions in the Arbery case are now part of an investigation by federal and state authorities, acting at Carr’s request. While it’s unclear whether the prosecutors broke any laws, their actions have drawn sharp criticism from across the country, including from many fellow prosecutors.

“The way this is supposed to work is the opposite of how they did it,” said former DeKalb County District Attorney Robert James.

The state’s ethics and conflict of interests training for prosecutors includes a 63-page presentation obtained by the AJC. It notes that, once a prosecutor’s office determines it has a conflict, state law requires the district attorney to notify the Attorney General of the disqualification. The AG, in turn, will assign an outside prosecutor to handle the cases.

Johnson waited three days after the shooting — and two days after Barnhill had reached an initial opinion about the case — before she notified Carr’s office on Feb. 26 that she had a conflict and would need to find a prosecutor to replace her, state records show.

And Johnson helped steer the AG to find her replacement, noting she had already “reached out” to Barnhill, according to Carr’s office.

But Barnhill, it turns out, had a potential conflict of his own. The attorney general’s office didn’t know that when he was appointed.

Barnhill’s recusal would follow several weeks later, in early April, after Arbery’s mother, Wanda Cooper Jones, learned that Barnhill’s son works as an assistant prosecutor in Johnson’s office, and has worked alongside Greg McMichael.

Before he left the case, Barnhill issued a three-page letter to police that reinforced his initial opinion that no crime had been committed. The letter has been widely criticized by prosecutors for violating the tenet that once prosecutors decide to recuse themselves because of a conflict they must take no additional action in a case.

Barnhill’s departure, however, would set forth a series of events that eventually led to release of a video that generated outrage nationwide over Arbery’s death and brought new scrutiny to the investigation.

The video, showing Arbery's final seconds alive, went viral on May 5. By the next day the GBI had assumed control of the investigation. On May 7, the McMichaels were arrested and charged with murder and aggravated assault. Last week, a neighbor who recorded the video, William "Roddie" Bryan, was also charged. The suspects are being held in the Glynn jail without bond, with probable cause hearings scheduled for Thursday.

The case is now on its fourth prosecutor, Cobb DA Joyette Holmes, who took over after the GBI filed charges against the McMichaels. Barnhill’s replacement, Hinesville District Attorney Tom Durden had called in the GBI after the video appeared online and then he stepped aside, citing his office’s limited resources.

In a statement on Wednesday, Barnhill said he couldn’t say much because of “the open and pending investigation.” Johnson has declined the AJC’s interview requests. But she told a southeast Georgia radio station on May 11 that she did nothing wrong.

‘Unilateral decision’

Johnson’s office recognized the day of the killing that her professional relationship with Greg McMichael presented a conflict. Yet, her office spoke to Glynn County police by phone several times that day and arranged for Barnhill to be at police headquarters the morning after the shooting to advise and review the case.

“I was concerned about the conflict my office had,” she told WIFO-FM in Jesup. “I really didn’t feel like it was a good idea, knowing what the gravity of the situation was, for us to just tell the police, ‘Sorry, we can’t help you.’ In retrospect, I was trying to do a good deed and get them some help and guidance to help them do their job. It’s now being used against me.”

There’s no explanation in Johnson’s recusal letter why she waited three days to notify the attorney general of the conflict. Johnson first emailed her recusal on Feb. 26, but it went to the wrong employee, said Katie Byrd, spokeswoman for the AG’s office. The next day, Feb. 27, Johnson’s staff resent her withdrawl letter. A senior paralegal called Johnson that same day and was told she had already reached out to Barnhill.

That paralegal “called and confirmed with George Barnhill that he would take the case,” Byrd said. “Barnhill did not mention having a conflict at this time. He accepted the appointment.”

Carr’s office told the AJC on Wednesday it has changed its policy as a result of what happened in this case and will no longer consider even “an informal suggestion” from a DA about a replacement prosecutor.

In the past, such recommendations were not uncommon to prevent delays in the justice system, Byrd said.

“What would be uncommon is if a prosecutor who has a conflict makes the unilateral decision to bring in another prosecutor on his or her own or asks or allows another prosecutor to take actions that would be inappropriate given their own conflict,” she said.

‘No one bothered’

Late in the afternoon on Feb. 23, Wanda Cooper Jones received a phone call from a Glynn County police officer.

She was told her son, Ahmaud Arbery, had been involved in a burglary when he was confronted by a homeowner. A fight ensued over the homeowner’s gun. Multiple shots were fired. Ahmaud, the officer concluded, was dead.

Cooper Jones would discover that account was false. Friends and family say he was jogging that Sunday afternoon in Satilla Shores neighborhood when the McMichaels confronted him. Greg McMichael later told police Arbery resembled a suspect in recent break-ins in the neighborhood.

Days after the shooting, Cooper Jones learned from local press reports that the investigation into her son’s death had been transferred to Barnhill’s office.

“No one bothered to reach out to me,” she said.

Cooper Jones said she contacted Barnhill in early March and was told the investigation was on hold until the autopsy and toxicology reports were returned.

“The only thing I can tell you is your son was shot more than once with a shotgun,” he said, according to Cooper Jones.

Soon after, Cooper Jones discovered the connection between Barnhill’s son and Johnson’s office. She tried to contact Barnhill and the state attorney general, demanding a new prosecutor be appointed. Barnhill relented in early April, stepping down from the case.

James Yancey Jr., a longtime Brunswick attorney, said distrust in the local African-American community toward prosecutors and police was already high before the Arbery shooting. The lack of arrests in the weeks after the shooting coupled with a growing list of conflicted prosecutors only served to raise suspicions, said Yancey, who is black.

“It looked like they were trying to cover something up,” he said.

In an interview in late April, before the video of the killing became public, Cooper Jones told the AJC she wasn’t optimistic anyone would ever be charged in her son’s death.

“It’s the good ole boy network,” she said. “It still exists and it still matters.”

A reuctant recusal

Barnhill told the AJC in a statement issued Wednesday that he didn’t have an actual conflict in the case.

“Our reading of the State Bar Rules on Conflicts does not show my son working at the Brunswick District Attorney’s Office, or handling a prior case involving Mr. Arbery creates an actual conflict,” he said. “Ms. Cooper mentioned to my office how my son worked at the Brunswick office and handled a previous case with Mr. Arbery. She expressed her belief we had a conflict with this case.”

In his recusal letter emailed to the AG’s office on April 7, Barnhill said he and Johnson had just learned three or four weeks earlier that his son had handled a felony probation case involving Arbery. Greg McMichael was the investigator on that case and had worked with his son for several years, Barnhill acknowledged.

“Out of respect for (Cooper Jones’) feelings, we removed ourselves from this case,” Barnhill wrote in a response to the AJC.

But he seemed to do so grudgingly, in a recusal letter that was strikingly personal. He even took a shot at Arbery’s family, saying they were “not strangers to the local crimial justice system.”

“A local ‘rabble rouser’ has taken up this cause and begun publishing wild and factually incorrect and legally wrong accusations on Facebook and other social media formats,” Barnhill wrote.

In his separate three-page letter, Barnhill informed a Glynn County police captain that he was recusing himself from the case. Barnhill said he recognized there was pressure on the police to make arrests.

“Since I have already given you an initial opinion the day after the shooting,” he wrote. “I feel I can still comment on this limited issue.”

Barnhill’s letter outlines in detail over nearly two pages why he thinks there should be no charges against the McMichaels or Bryan. He mentions Arbery’s mental health records and prior convictions that “help explain his apparent aggressive nature and his possible thought pattern to attack an armed man.”

The National District Attorneys Association earlier this month issued a public rebuke of the Waycross prosecutor. Duffie Stone, president of the organization, told the AJC that Barnhill’s letter crossed a clear line that prosecutors everywhere know is wrong.

“It’s not how you do it,” said Stone, a South Carolina solicitor who is the chief prosecutor for a five county circuit, including Hilton Head Island. ”It’s assumed that when you conflict yourself out of a case you have to stop at that point. You can’t seek to influence it. This is highly unusual.”

AG’s role under scrutiny

Soon after the video of his killing went online, Carr was quick to absolve his office’s role, saying they didn’t know about the prosecutorial conflicts that surrounded the case.

Still, Johnson’s recommendation to appoint Barnhill should’ve raised a red flag, said Charlie Bailey, a former Fulton County prosecutor. Bailey ran and lost to Carr in the 2018 general election.

The attorney general should provide more oversight in decisions where the integrity of the justice system is at stake, Bailey said.

“You’re there to ensure people are being protected,” he said. “If DAs are going to pick who’s taking the case, then why have the statute?’”

The AG’s office handles roughly 150 to 200 conflict appointments across Georgia each year. Johnson is no stranger to the process. She has requested appointment of a conflict prosecutor in roughly two dozen cases since 2011, records show, but none have drawn scrutiny like the Arbery case.

Carr’s office on Wednesday said they didn’t know Barnhill had reviewed the evidence and reached an initial conclusion in the case prior to the attorney general appointing him on Feb. 27.

“Only the Attorney General can make a conflict appointment pursuant to Georgia law, and only after the appointment is made would it be appropriate for the other prosecutor to become substantively involved in the case,” the AG’s office said in a statement. “This is also the reason our office has called for a specific investigation in this case by two separate law enforcement entities.”