The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There is widespread—and justified—happiness today that justice was done in the Ahmaud Arbery case. The three men who pursued and killed him because of a combination of bigotry and baseless suspicions have been convicted of felony murder and other crimes.
However, understandable celebration of the outcome should not obscure a troubling aspect of the case. The defendants almost avoided being charged because one of them is a former employee of the prosecutor's office. Reason's Billy Binion explains:
[T]he 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…..
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.
As Binion notes, absent the widespread media attention that this case attracted, conniving prosecutors might have succeeded in getting the perpetrators off the hook. What happened here was an extreme case of the broader problem of insider favoritism in the criminal justice system. All too often, law enforcement officials turn a blind eye to wrongdoing in their own ranks, or even (as here) that perpetrated by former employees of their organizations.
The "blue wall of silence" that inhibits many cops from testifying against abusive fellow officers is one example. In New York City and some other jurisdictions, police unions give out "courtesy cards" to friends and relatives of officers, so as to allow these people to escape tickets for traffic violations.
I myself was once a minor beneficiary of law enforcement favoritism. I recounted the story here:
Back in 2001, when I was clerking for the [US Court of Appeals for the] Fifth Circuit in Houston, I was pulled over by a police officer for a minor traffic violation (I thought I wasn't doing anything wrong, but the officer had a different view…). He asked me to show him my license, which I did….[S]ince I was only living in Texas temporarily, I was still using my Massachusetts license. This wasn't good enough for the officer. "Son," he said, "you have to show me a Texas ID."
I suspected that it was not legal for him to require a Texas ID. After all, what happens if he stops a driver from another state who was just passing through? Would he be required to have a Texas ID as well? Nonetheless, I was very reluctant to get into an argument with a cop;… [I]f I pissed him off, he could saddle me with a more expensive ticket, or worse. Instead, I showed him the closest thing I had to a Texas ID: my ID from the Fifth Circuit.
"You work for the Court of Appeals?" the officer asked skeptically. Such a suspicious-looking character couldn't possibly be an employee of the criminal justice system! "Tell me the address of the federal court house," he demanded. After I told the officer the correct address, it dawned on him that I really was a court employee, and not a devious impostor trying to get away with traffic violations. Right away, the tone of the conversation changed, and I was let off with a mild warning (whereas before it seemed fairly clear that he was going to write me a ticket).
The episode shows the favoritism that police sometimes extend to fellow law enforcement employees. Although it had not occurred to me that I could use my exalted status as a law clerk to get out of a ticket, I later learned from other court employees that this kind of police behavior is far from unusual.
Obviously, my case was trivial compared to what almost happened in the Arbery situation. Indeed, the latter was so grave that authorities have taken the highly unusual step of indicting a prosecutor, as a result. But both stories illustrate a broader problem of favoritism in law enforcement.
In fairness, police and prosecutors are far from the only professions who show favoritism to insiders. I'm an academic, and I certainly see such issues in my own industry, as well. But law-enforcement favoritism is particularly troubling, because it often involves literal matters of life and death, or at least cases where people's liberty and property are at stake.
There isn't any simple solution to this problem. The people in the best position to sanction perpetrators of favoritism are usually themselves fellow cops and prosecutors, many of whom are also inclined to favor their own. In this way, law-enforcement favoritism is an obstacle to its own alleviation. But we should at least recognize the ubiquitous nature of the problem, and give greater consideration to possible strategies for reducing it.