Criminal Justice

Here's a Rarity: A Former Prosecutor Is Facing Criminal Charges for Violating Her Oath of Office

Former District Attorney Jackie Johnson may face accountability for her official actions in the Ahmaud Arbery investigation.

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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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  2. 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.

    Part of the reason people do not understand qualified immunity is because the people that write about it most do not understand qualified immunity either.

    1. Either Billy Binion is one of those who doesn’t understand it or he’s purposely projecting ignorance. I’m gonna guess however, that ol’ Billy really understands and defends how hard it is to sue a reporter who hides behind First Amendment, editorial approval and agency when they’ve misreported facts, engaged in yellow journalism, selectively edits, writes a hit piece, excludes exonerating facts, or just plain vanilla libel.

      Not that such a thing would ever happen of course, which would explain the extreme lack of lawsuits against hack reporters and journalists.

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    3. I disagree Geiger, agree with the author’s sentence, and have seen it explained further here in Reason (I’m sure Damon Root has written about it). In your favor, I’d agree the sentence (while very concise and accurate IMHO) could have been written so that less skilled readers would understand qualified immunity better (but that takes more space and has already been covered many times in Reason). Further discrediting your post and exposing yourself as a Karen, you failed to explain your understanding of qualified immunity, specifically what’s wrong with the author’s statement.

      And FWIW, I disagree with Trump’s support of qualified immunity.

      Here’s what I think might be a possible fix for the problem. We can let government officials continue to have qualified immunity, but the government organization employing them should be civilly liable, and the offending official and their immediate supervisor should be fired for cause and prohibited for working for the government for life. That is at least, some accountability.

  3. Binion is not someone I trust to write an honest, thorough analysis of anything.

    1. That.

      I’m not seeing in the article where Ms. Johnson did anything that hasn’t usually been considered within a prosecutor’s discretion.

      1) “[S]how[ed] favor and affection to Greg McMichael during the investigation.” Likely, which is why she recused herself. Absent spoilation of evidence or overtly interfering with the GBI’s investigation, it doesn’t look like a crime.

      2) “Johnson “fail[ed] to treat Ahmaud Arbery and his family fairly and with dignity,”
      Who gives a shit? Anyone here ever been the victim of a violent crime? Did the DA’s office treat you fairly and with dignity? If they dealt with you at all? Aspirational norm, something we’d like to see, but also not a crime, unless the unfair conduct breaks some law I doubt applies here. That’s without going into any prosecutorial immunity she may have had.

      3) “[W]hen 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.”

      Is there a legal duty to disclose here? That you might’ve asked the guy if his shop could take it, since you’ll likely be conflicted out? Maybe an ethical violation. Any criminal lawyers/judges want to take a crack at this one?

      4. “[S]he obstructed police “by directing that Travis McMichael should not be placed under arrest.” Again, likely within her discretion as District Attorney. If the GBI disagreed—and it looks like they certainly did!—they’re free to go to another tribunal and get a charging instrument. And then they can arrest the McMichaels.

      Show me a lie she made, a document she altered, evidence she hid, intentional neglect of her office’s duty and investigation. Something criminal. The cited parts of this indictment, or this article, don’t look like that from where I am.

      It’d be nice to hear from a Georgia criminal law attorney about it.

      1. Violating oath of office sounds like a scorched earth attempt to just find something, anything, to charge someone with to appease someone else.

        The only thing I can see that might be questionable is whether not having someone arrested [could easily argue “yet”], but this happens daily in most DA’s office. Unless it can be shown that she thought this was a winnable case, was aware of overwhelming evidence and considered the guy a flight risk, and still neglected her duty, there’s nothing there. Even with that, I’ll just point you to the Los Angeles DA office and you can get back to me when you’ve digested the dozens of cases he’s walked away from.

        Short of proving that her actions were based on race, I don’t see they have a damn thing to win here other than some BLM kudos… and good luck trolling for those.

        1. I wish we were enforcing oaths of office against judges who make up shit instead of interpret the law.

          Sops to BLM like this will just make bad law, instead of giving teeth to oath enforcement actions I still have hope for.

      2. What was not in the prosecutor’s discretion, was to involve herself in a case where she had any working or personal relationship with the accused. She basically made sure the case was taken over by another person in their clique, and that the killer wasn’t arrested before recusing herself and allowing a higher up to appoint an independent (of the people involved) prosecutor. It’s the same ethical reason any potential juror in a case, that happens to personally know anyone involved in a case (including the victims, the alleged perpetrators, or the lawyers involved) is excluded from the jury pool, because it’s necessary to ensure fairness.

        Consider an analogy such as AG Jeff Sessions choosing someone to appoint a very Trump friendly prosecutor for the Russian Hoax, before recusing himself from the case because he briefly met the Russian ambassador. Something I’m sure Biden is doing and has done many times regarding Hunter’s escapades. The political class didn’t want Trump pulling their typical investigation of a political class power player that really covers up and destroys the evidence such as their investigation of Hillary and her illegal email server. And it’s essentially what happened here.

  4. I think it’s clear the ONLY reason they’re going after THIS prosecutor is because of the patriarchy. Prove me wrong.

  5. Unfortunately it’s not kamala Harris being investigated for falsifying evidence

  6. “while he was out on a run”

    Nobody cares if the State claims there was no evidence. He was carrying hammers and wearing hiking boots while scoping out a construction site.

    Don’t play into the narrative Binion. We’re allowed to be nuanced. Yes, Arbery wasn’t perfect and probably was a burglar, but it still doesn’t make what the McMichael’s did right.

    1. Exactly.

      The state’s case is unquestionably a lie. The defendants actions were horrifically dangerous, at the minimum.

      The guy who shot him was absolutely acting in self defense at that exact second. Whether confronting someone in that manner with a shotgun negates this is another question….

      “No evidence” that he was a burglar is a lie. There is at least “some evidence”.

      People have been convicted of murder for less. People have escaped prosecution for more.

      One thing is certain… The motivation of the state and federal prosecutors is political and race.

    2. https://www.washingtonpost.com/national-security/far-right-groups-are-spreading-racist-false-claims-about-shooting-victim-ahmaud-arbery-analysts-say/2020/05/17/31cde428-962b-11ea-82b4-c8db161ff6e5_story.html

      “Some of the online posts, which include racist language, memes and graphics, claim that Arbery was carrying a hammer and wearing boots when he was killed, as the groups try to create false narratives about his death, analysts said.”

      1. That you believe an old article on WaPo based on internet rumors is a good source is hilarious.

        What an asshole.

    3. He did scope out a construction site, but I think the hammer and hiking boots factoids have been debunked. That’s what a quick perusal of the internet has said.

      He didn’t deserve to be killed and those yahoos should be prosecuted, but I also get irritated when the narrative has to paint all these victims as pure, wholesome angels.

  7. Great to see a corrupt prosecutor finally facing consequences. But I don’t expect to see a whole lot more. The narrative as I recall is a bunch of redneck hillbilly racists lynch an innocent black man and now government can score some BLM points by prosecuting a racist prosecutor. I’m glad it’s happening but as usual I have to wonder if would even be a story if the races were reversed.

    1. Also, I don’t see how George Floyd sparked a discussion about QI. The cops were prosecuted and the city settled. In the middle of the case no less. There were no claims of immunity that I recall. If there is a civil action in the Barbery case Binion might have enlightened us. Otherwise I don’t see a QI story there either.

  8. A DA finally faces charges for once and… it’s for not pressing charges when the political winds are blowing. The race-baiting black victimhood movement demands blood, and anyone who won’t give it to them is a target.

    Will we ever see a prosecutor hung out for pursuing charges against an obviously innocent defendant? For withholding exculpatory evidence? For securing guilty pleas through threats and coercion? Like hell we will.

    1. And it’s not because she tried to hide or cover-up a crime…it’s because she wasn’t vast and efficient enough it getting some other DA to prosecute the crime when she had a conflict of interest in the case.

      Binion, you really shouldn’t be cheerleading for this.

      1. She played favorites. Prosecutors have a great amount of virtually unchecked power – far too much in my opinion – and often self-serving motivations to wield it in one direction but not another. We would all see more justice in the country if more of them were Nifonged.

  9. If there is a civil action in the Barbery case Binion might have enlightened us. Otherwise I don’t see a QI story there either.
    But anyways Thanks so much for the information best blog ever ❤
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  10. Though am still having small doubt about this
    Skipogist
    Though this also said same thing here ????99loads

  11. Sure seems like a reach to indite this prosecutor for not pursuing the Arbery case.
    Especially as she recused her self.
    We see plenty of prosecutions of obviously innocent people when they are white citizens defending themselves or their business.
    And we see so many BLM/antifa thugs not being prosecuted at all when they’ve been arrested after each being caught in the act with video evidence.

    I was amazed to see that prosecutors can be disciplined for violating the oath of office.
    We see all the Soros prosecutors ignoring all kinds of actual crimes
    Let’s hope we can continue the trend of forcing prosecutors to go after actual criminals

  12. So when will Kim Foxx be tried for showing favoritism, and probably a quid pro quo, for dropping charges against Jussie Smollett?

  13. Of course Reason would attack a prosecutor for not prosecuting and stand with the race mob.

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