A grand jury on Thursday indicted a former prosecutor for allegedly using her power to protect the men accused of murdering Ahmaud Arbery, a Georgia man who was chased through a neighborhood before being shot and killed in February of last year.
Jackie Johnson, who for a decade served as the district attorney in the Brunswick Judicial Circuit, is charged with violating her oath of office, which is a felony, and hindering a law enforcement officer, which is a misdemeanor.
While it's too early to predict an outcome, the mere fact that a former prosecutor is facing accountability for potential misconduct is remarkable.
Arbery's death drew a swell of national attention last year after Travis McMichael and his father Greg McMichael pursued Arbery in their truck while he was out on a run, with the former ultimately gunning him down at close range. Neighbor William "Roddie" Bryan joined the hunt in his own car and allegedly blocked Arbery from escaping. The three men insist they suspected Arbery had committed burglary and therefore they had the right to perform a citizen's arrest, while the state contends no such evidence exists.
Prosecutors initially declined to press charges. That changed months later after a cellphone video of the killing—taken by Bryan—was leaked online in May 2020, attracting the attention of Gov. Brian Kemp, who rerouted the case to the Georgia Bureau of Investigation.
By that time, Johnson had long been off the case. The erstwhile prosecutor, who lost reelection in November 2020, has maintained her innocence and says she recused herself right away because Greg, the older McMichael, used to be her employee.
But the indictment against her tells a different story, alleging she "show[ed] favor and affection to Greg McMichael during the investigation." Johnson "fail[ed] to treat Ahmaud Arbery and his family fairly and with dignity," it continues, when she recommended the case be taken over by Waycross Judicial Circuit District Attorney George E. Barnhill, neglecting to disclose that she "had previously sought the assistance of DA Barnhill on the case." It also says she obstructed police "by directing that Travis McMichael should not be placed under arrest."
The men were eventually indicted in June 2020 on four counts of felony murder, two counts of aggravated assault, as well as one count each of false imprisonment and criminal attempt to commit false imprisonment. They also face federal hate crime charges.
"Our office is committed to ensuring those who are entrusted to serve are carrying out their duties ethically and honestly," said Georgia Attorney General Chris Carr in a statement. "While an indictment was returned today, our file is not closed, and we will continue to investigate in order to pursue justice." The latter comment is perhaps a nod to Barnhill, who has not yet been charged but is also under scrutiny for not immediately recusing himself and for similarly advising police not to arrest the men.
The story here isn't so much that Johnson and Barnhill allegedly misbehaved. Though the data on the matter are slim, prosecutorial misconduct is not exactly a new phenomenon. A 2018 National Registry of Exonerations (NRE) report found that 79 percent of wrongful homicide convictions came as a result of prosecutorial and/or police misconduct; a 2020 NRE report concluded that the same factor underlies half of all exonerations.
The story is that the government is actually seeking to hold Johnson accountable for her alleged misbehavior, an exceedingly rare turning of the tables. "Prosecutors are so rarely indicted for job-related misconduct that this is like asking what happens if you toss a pack of Mentos into a black hole," says Clark Neily, senior vice president for legal studies at the Cato Institute.
It's even rarer for prosecutors to face accountability in civil court. That's because it is effectively impossible: The vocation enjoys absolute immunity, which prohibits victims from suing prosecutors for decisions made on the job, no matter how egregious. Even prosecutors who willfully suppress evidence and leverage knowingly fictitious testimony must receive immunity, according to the Supreme Court. With criminal charges at near-zero and civil court action actually at zero, accountability for rogue prosecutors, who hold immense power, is almost nil.
The leaked cellphone footage nearly coincided with the death of George Floyd, the Minneapolis man who was killed by a former police officer, sparking a national discussion around qualified immunity. The legal doctrine protects police officers and other state actors from civil suits if the exact way they violated your constitutional rights has not been spelled out explicitly in a prior court ruling. Qualified immunity makes suing certain government officials an arduous task; absolute immunity makes it beyond imagination.
But a criminal conviction is still theoretically on the table. "In short, anything is possible, including a result that appears to defy the known laws of the universe," adds Neily.
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