Justice for Some: What the Ahmaud Arbery’s tragedy tells us about the prosecution of crime in America

Like most of America, I was outraged when I heard about the Ahmaud Arbery murder. The horrific facts of the shooting – Arbery was simply running down the street, bothering no one when he was chased and gunned down – are matched by the equally horrifying response of Waycross District Attorney, George Barnhill.

I do not comment on many high-profile cases. Often, the actual facts differ from those reported in the media. The media often wants to incite outrage for the sake of ratings and will take liberties to achieve their goal. The Arbery case is different. The video of the incident does not allow much for interpretation and the letter from the Waycross DA reveals everything we need to know about his character.

It seems that the Glyn County Police Department apparently wanted to make arrests in the case. Whether this is because of good police work or because they were being pressured by outside forces is not clear. What is clear is that they were directed NOT to make the arrest by Barnhill in his letter to Police Captain Tom Jump.

There is plenty to be angry about. Somehow, assailants Greg and Travis McMichael felt entitled to chase down a runner who was doing his own thing at 1:00 in the afternoon. They felt entitled to stop and question him despite not being members of any law enforcement agency. And finally, they felt entitled to shoot and kill him when he refused to stop. It is reasonable to ask – why were they allowed to feel so entitled? What made them feel like they were above the law?

For the answer, look no further than the letter from DA George Barnhill. You can see the letter here.

Before delving into the damning contents of the letter, it’s important to understand the purpose of the letter. This is written by a DA who has recused himself. He is attempting to insert his opinion in the case even though the act of recusal is an acknowledgement of his biases. In reading the letter, I cannot help but think about the times when such specious logic has been used against my clients to enhance a misdemeanor to a felony, or to attempt to stretch probable cause into reasonable doubt. Usually the logical fallacies work against the person accused of criminal conduct. Here, the DA uses the same tactics to find every reason NOT to find probable cause and make an arrest.

In his letter, Barnhill cites affirmative defenses and even quotes “Stand Your Ground” and Citizen’s Arrest” statutes that – if true – would let the McMichaels off the hook. The first time I read it, I gave Barnhill the benefit of the doubt. Perhaps it was written before he had seen the video. Maybe the police report left out crucial details. However, he later references the video, so this cannot be the case. He has access to the same information that is available to the public, yet he chooses to reach a blatantly wrong opinion because it serves him.

For reasons that should be obvious, neither the Citizen’s Arrest nor the Stand Your Ground laws should protect someone who creates the dangerous situation by chasing a runner down the street. No reasonable person would think that they would apply here, so I am not going to focus on that. Instead, I will focus on what the DA’s actions and words imply about a few overarching issues.

I have written many times on the problems of prosecutorial discretion. Prosecutorial discretion refers to the idea that the prosecutor has absolute authority on how they will try a case. This authority extends to whether or not to bring charges at all. For example, prosecutors can (and often do) bring charges even when the alleged victim does not want to pursue them. They can also dismiss or choose not to file charges without permission from the judge or police or the alleged victim, or anyone else on God’s green earth. As a society, we can – and should – question why so much authority is concentrated with one individual position.

With unfettered prosecutorial discretion, our society rests on the idea that DAs will be fair, or at least give their best efforts to be fair. The conception has two obvious problems. First, we all know that some percentage of people will wholesale abuse their power, as is clearly shown in the Arberry murder. Second, even when a DA is giving a good faith effort to be fair and unbiased, unconscious biases can and do affect prosecutorial decisions each and every day.

That is why George Barnhill thought that no one would question his decision not to accept charges. Fortunately, Ahmaud’s mother took the extraordinary initiative to request that he recuse himself. Without that action, it is very likely that Barnhill would have been right and his actions would have disappeared from the public consciousness. Importantly, in his letter, Barnhill addresses the video and states that it should not be released to the public because investigation is pending. He did not expect it to see the light of day.

In my opinion, Barnhill is indirectly the reason that the McMichaels felt they could get away with murder. Because Brunswick, Georgia is under Barnhill’s jurisdiction, and in Barnhill’s jurisdiction, certain crimes get prosecuted, and certain crimes don’t. What’s worse is that certain people get prosecuted, while others don’t. Justice for some, but certainly not all.

Unfettered prosecutorial discretion remains a problem in Brunswick, and in jurisdictions across the US. Steps MUST be taken to restrict this discretion and create oversight in the way that DA’s assert their power. Until that time, prosecutors will continue to exert far too much power in the judicial system, and travesties like the Arberry case will continue to happen.

Leave a Comment

Your email address will not be published. Required fields are marked *