Ahmaud Arbery's Alleged Murderers Almost Escaped Charges, Thanks to Prosecutorial Misconduct

As the trial wraps up, it's important to remember that the first prosecutor on the case, Jackie Johnson, has been indicted for violating her oath of office.

The defense attorneys in the Ahmaud Arbery murder trial—representing Travis McMichael, 35, his father Gregory McMichael, 65, and friend William "Roddie" Bryan, 52, who stand accused of tracking down and killing Arbery during a so-called citizen's arrest—have arguably stolen the show. Kevin Gough, Bryan's attorney, requested that "high-profile African Americans" like Al Sharpton not be allowed in the courtroom; "We don't want any more black pastors coming in here," he said. Laura Hogue, one of Gregory McMichael's attorneys, upped the ante yesterday, referring to an outfit Arbery wore: "khaki shorts with no socks to cover his long, dirty toenails."

Yet the theatrics from the defense have diverted scrutiny away from the seediness of the original prosecutor, Jackie Johnson, who in September was indicted on criminal charges for violating her oath of office and obstructing police when she allegedly showed the McMichaels favorable treatment and ensured they would not be arrested after Arbery's death.

Such charges against prosecutors are almost unheard of.

In February 2020, the McMichaels chased Arbery in their truck through a Georgia neighborhood, telling police that they suspected Arbery was behind a string of burglaries. (Investigators later confirmed that there was only one such burglary and it had been reported seven weeks prior.) Bryan joined the pursuit in his own vehicle, with the three ultimately attempting to corner Arbery. Travis, the younger McMichael, fired his shotgun three times after a brief struggle with Arbery, who was unarmed, with an autopsy showing two shotgun wounds to his chest and another on his wrist.* He later died.

Several months went by before the government applied any rigorous investigation to the case. Johnson, then the Brunswick Judicial Circuit District Attorney, was a big part of that, according to the indictment against her.

The ex-prosecutor, who lost reelection in November 2020, allegedly leveraged her office to "show favor and affection to Greg McMichael," her former employee, during the state's initial probe of the case, and got in the way of law enforcement when she ordered them not to arrest Travis.

After recusing herself, Johnson then recruited Waycross Judicial Circuit District Attorney George E. Barnhill to replace her. But she declined to mention that Barnhill had already been involved: He told police the day after the killing that the three men should not face charges. He also had a conflict of interest, eventually disclosing that his son had worked in Johnson's office alongside McMichael, including on a prior prosecution that Arbery faced. Yet he stayed on the case until April and only resigned at the behest of Arbery's mother once she learned of his potential bias. (As of September, an investigation into Barnhill's conduct was ongoing.)

Indeed, had Arbery's case not received explosive media attention in May 2020, it's possible that both Johnson and Barnhill's prosecutorial malfeasance would have prevented charges from being brought against the men. On his way out the door, Barnhill told police that the three "were following, in 'hot pursuit,' a burglary suspect, with solid first hand probable cause, in their neighborhood, and asking/ telling him to stop."

That story lost traction when an attorney leaked cellphone footage of the encounter—taken by Bryan—with the clip of Arbery's final moments going viral. The men were indicted the following month and each faces one count of malice murder, four counts of felony murder, two counts of aggravated assault, one count of false imprisonment, and one count of criminal attempt to commit a felony.

Johnson and Barnhill are certainly not the first prosecutors to misuse their power at the expense of their oath, although they are two of the few who have been investigated for it. Probes into prosecutors are a rarity. Criminal charges are nearly unheard of. And data on convictions are scant, because they're almost nonexistent. "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," Clark Neily, senior vice president for legal studies at the Cato Institute, told me in September when Johnson was first indicted. "In short, anything is possible," he said of a potential conviction, "including a result that appears to defy the known laws of the universe."

The trial of Kyle Rittenhouse, the teen who was acquitted on all charges for killing two men and wounding another during a night of civil unrest, brought issues of prosecutorial shenanigans to the fore. Kenosha County Assistant District Attorney Thomas Binger racked up quite a few demerits during the trial, suggesting that Rittenhouse invoking his Miranda rights was a manifestation of his guilt and attempting to show evidence to the jury that the judge had already ruled was likely inadmissible. Those moments appeared to electrify factions on the law-and-order right, as they should have. But such misconduct is not limited to politically charged trials that happen to command national attention.

It's commonplace, emboldened by the doctrine of absolute immunity which gives prosecutors an impenetrable shield against civil liability for the role they play in commencing and carrying out prosecutions. That includes falsifying evidence, coercing witnesses, and knowingly putting perjured testimony on the stand. It is for this reason that a Louisiana prosecutor, for instance, was able to evade accountability for allegedly working to dismantle allegations against an assistant prison warden who was accused of brutally raping his cousin-in-law multiple times at his home on the grounds of Louisiana State Penitentiary.

"[The victim's] story is particularly appalling because her alleged perpetrator holds a position of significance in our criminal justice system as an assistant prison warden," wrote Judge James C. Ho for the U.S. Court of Appeals for the 5th Circuit. "But none of this changes the fact that our court has no jurisdiction to reach her claims against the district attorney, who for whatever reason declined to help her." As such, she was not given the privilege of suing.

Stories like those make Rittenhouse's prosecutor look saintly. Yet even Binger's actions rightly riled much of the country as they watched him flout the rules. The lead-up to the Arbery trial is another reminder that such instances are not outrageous because they occur in high-profile trials that are sometimes viewed through a political lens. They are outrageous because even the more mundane violations are an affront to basic liberty—only made worse by the fact that such transgressions are routine.

*CORRECTION: An earlier version of this piece misidentified the type of ammunition fired from McMichael's gun.