Update, May 7, 2020, at 6:40 pm: The Georgia Bureau of Investigation, a state-level law enforcement agency, arrested Greg McMichael and his son, Travis, charging them with murder and aggravated assault and booking them in the Glynn County Jail.
Original story: On Feb. 23, three men in a truck followed Ahmaud Arbery while he was jogging in a Georgia neighborhood near his home, then shot him to death. Cellphone footage of the killing emerged on Tuesday and strongly indicated that the men, who are white, murdered Arbery, who was black. But none of them have yet been arrested. Three different state prosecutors have now declined to send Arbery’s killers to jail. The district attorney currently assigned to the case said Tuesday he would ask a grand jury to decide whether criminal charges are warranted, but a grand jury cannot convene until at least mid-June due to the coronavirus pandemic.
This delay in arresting Arbery’s killers is absurd, and has been from the start. There is no legal reason why Georgia prosecutors cannot arrest the men right now even if a grand jury cannot convene. Prosecutors are hiding behind a smokescreen of criminal procedure to avoid taking responsibility for their inaction.
The Nation’s Elie Mystal has described Arbery’s killing as a lynching, and after watching the video, it is difficult to contest that characterization. Three white men in a truck accosted a black man jogging on the side of the road, chased him down, and shot him dead. They claim they thought Arbery committed several recent burglaries in the neighborhood. The first prosecutor, Brunswick District Attorney Jackie Johnson, recused herself from the case; one of Arbery’s alleged killers, Greg McMichael, had served as an investigator in her office.
Johnson handed the case off to Waycross District Attorney George E. Barnhill, who declared in April that he found insufficient probable cause to arrest the three men. In a memo, Barnhill asserted that the men had committed a lawful citizen’s arrest and killed Arbery in self-defense. He blamed Arbery for his own death, accusing him of displaying an “aggressive nature.” (The video contradicts Barnhill’s description, proving that Arbery was only “aggressive” when he tried to grab the gun to prevent his assailant from shooting him.)
Barnhill also cited Arbery’s “mental health records & prior convictions,” which are irrelevant to the culpability of his killers. Then, at the behest of Arbery’s mother, Barnhill begrudgingly recused himself from the case because his son also worked in the Brunswick district’s attorney’s office, McMichael’s former employer. (Barnhill’s refusal to prosecute the men is telling given his zeal to charge other crimes; he twice tried a poll worker for helping a first-time voter cast a ballot, for instance.)
After this second recusal, the Georgia attorney general’s office assigned the case to a new prosecutor, Atlantic Circuit District Attorney Tom Durden. In a statement on Tuesday, Durden announced he was “of the opinion that the case should be presented to the grand jury of Glynn County for consideration of criminal charges against those involved in the death of Mr. Arbery.” But due to coronavirus-related court closures, no grand juries will be convened until at least June 12. Durden suggested the case is simply out of his hands until then. “I have no control over the suspensions due to the pandemic,” Durden noted, adding that he does “intend to present the case to the next available grand jury in Glynn County.”
It is true that, to obtain an indictment, Durden will need to present the evidence to a grand jury. And it’s true that, in Georgia, he cannot do so until June 12 (at the earliest). But what’s bizarre about Durden’s statement is that it skips right over the step that would normally come in between a crime and an indictment: an arrest. Andrew Fleischman, a Georgia criminal defense attorney, told Slate on Thursday that Durden could likely obtain an arrest warrant by calling a magistrate judge in Glynn County and simply describing the video. The graphic footage of Arbery’s death plainly provides probable cause for the arrest of all three men; Fleischman pointed out that the Georgia Supreme Court has found a simple description of an eyewitness picking a suspect out of a lineup sufficient for probable cause to arrest. Magistrate judges are still operating during the pandemic and frequently issue warrants telephonically, as when police need a warrant to draw blood from an intoxicated driver. And prosecutors have good reason to arrest the men—not only because they may pose a threat to the public but also to prevent them from destroying possible evidence.
In fact, Fleischman noted, Georgia law allows a private citizen to request an arrest warrant from a magistrate judge, though of course it must be executed by law enforcement. Theoretically, a Georgia resident could obtain a warrant if prosecutors continue to resist charging the men.
If Georgia law enforcement officers do arrest the men, they will be held in jail, and eventually brought before a judge who will set their bail, or deny it altogether. If they are refused bail, the state can hold them for up to 90 days without indicting them. With bail, they can be detained until they post bond. In other words, even if prosecutors cannot convene a grand jury for months, they can still keep the men behind bars. Eventually, to secure a conviction, they will have to try the men before a jury of their peers. But until then, prosecutors have ample tools at their disposal to detain them. And, typically, they use those tools. Arrests and detentions have not stopped even though the coronavirus has ground court processes to a halt; four people were arrested and jailed in Brunswick on Thursday alone.
Durden is making a choice to use the coronavirus pandemic to justify an indefensible response to Arbery’s killing. With each passing day that Arbery’s killers remain free, Georgia’s prosecutors grow more complicit in this appalling miscarriage of justice.