Murder charges can proceed against jailers in Fulton inmate’s death

Credit: Fulton County Sheriff's Office

Credit: Fulton County Sheriff's Office

But their indictment was quashed the following year by Fulton County Judge Robert McBurney, who ruled the defendants should have been given advance notice and allowed to appear before the grand jury as state law requires when charging officers for crimes allegedly committed during the performance of their duties.

The Fulton County District Attorney’s Office appealed McBurney’s decision to the Georgia Supreme Court in June, arguing the jailers were not peace officers because they lacked arrest powers and only had authority inside the jail.

In its unanimous opinion, the Supreme Court sided with the state, writing that McBurney erred “by finding that the defendants’ duty to control and supervise inmates within the jail constitutes a duty to maintain the public peace.”

Having arrest power, the court determined, is integral to the performance of a peace officer’s duty, as is having authority within the community at-large.

“Here, the trial court rested its conclusion that the defendants were charged with preserving the public peace on the sole fact that the defendants were responsible for maintaining order among the inmates confined to the Fulton County Jail,” Justice Charlie Bethel wrote. “... Any authority the defendants may exercise is constrained to a limited population of inmates and, perhaps, to certain members of the general public who voluntarily enter the jail’s boundaries via its controlled access points.”

Defense attorney Amanda Clark Palmer, who represents Roache and argued the case before the state Supreme Court, said she was disappointed with the decision.

“We firmly feel that Deputy Roache should have been given an opportunity to appear before the grand jurors, and that had they heard from him directly, they would not have indicted him for murder,” she said.

But Fulton District Attorney Fani Willis said the state’s high court got it right.

“We are pleased the Georgia Supreme Court recognized that the special privilege for peace officers to appear before a grand jury is limited and does not apply to the defendants in this case,” Willis said in a statement. “We will now move forward to trial to seek justice for Antonio May and his family.”

Trial attorney Lester Tate, who is not involved in the case, said he also agrees with the Georgia Supreme Court’s decision, though he said the ruling “could have gone either way.”

“I think it’s a pretty fine point of law as to whether or not a jailer is a ‘peace officer.’ They may be POST-certified for operating as a jailer but not as a general law enforcement officer, so it’s just a question that’s never come up before,” Tate said, referring to the state certification process.

He added that officers and deputies facing potential charges rarely exercise their right to appear before a grand jury because they do so without their lawyer being able to examine them on the stand.

“It’s a very risky maneuver,” said Tate, who recently represented a former Georgia police chief in a criminal racketeering case. “We had the opportunity to appear before a grand jury and did not avail ourselves of it.”

His client, David King, was ultimately acquitted of the charges, along with King’s wife and son-in-law.

Ten detainees have died this year in the custody of the Fulton County Sheriff’s Office, and more than 60 inmates have died at jails operated or leased by the county since 2009. As a result, the county jail on Rice Street is under review by the U.S. Justice Department.

May, a father of three from Macon, was arrested on a misdemeanor trespassing charge, accused of throwing rocks at the windows of the American Cancer Society building in downtown Atlanta.

A wrongful death lawsuit filed by his family contends that after May exposed himself in a holding cell, the six jail deputies Tased, beat and pepper-sprayed him before placing him in a restraining chair. The deputies later put a water hose to his face — while he was in the chair — to flush away some remaining pepper spray, according to the complaint. May died minutes later.

Credit: Tamar Hallerman/AJC

Credit: Tamar Hallerman/AJC

The federal lawsuit alleges May died after being stunned repeatedly on what deputies and inmates called “Taser Tuesday.”

Michael Harper, the attorney representing May’s family, said the jailers deployed their stun guns eight times in 90 seconds.

“His heart went out while he was strapped to that chair,” Harper said.

McBurney, a Harvard-educated lawyer who’s been a judge for 11 years, presided over the Tex McIver murder trial and, more recently, the special purpose grand jury that investigated Donald Trump and his allies’ alleged efforts to overturn the results of the 2020 presidential election in Georgia.

McIver’s conviction was overturned last year by the Georgia Supreme Court, which ruled the jury should have been allowed to consider a misdemeanor involuntary manslaughter charge, not only a murder charge, for the fatal shooting of his wife, Diane. Fulton prosecutors plan to retry the case next month in McBurney’s courtroom.