Decatur, GA (May 12, 2020) – On Monday, May 11, 2020, Attorney General Chris Carr requested that the GBI open an investigation into a case involving possible prosecutorial misconduct by the offices of the District Attorneys of the Brunswick and Waycross Judicial Circuits.
The following represents contents of the Attorney General’s request:
The Attorney General is concerned that the actions of these offices in possibly misrepresenting or failing to disclose information during the process of appointing a conflict prosecutor to investigate the death of Ahmaud Arbery may have constituted unprofessional conduct under O.C.G.A. § 45-11-4 or other crimes.
It is the responsibility of the Attorney General under O.C.G.A. § 15-18-5 to appoint a prosecutor when a district attorney’s office is disqualified from a prosecution. The law provides that the Attorney General can only perform that function when notified of a conflict by either a district attorney or the presiding judge. For these appointments to be made appropriately, however, it is crucial that the Attorney General be provided with correct and sufficient information.
In this case, Mr. Arbery was shot and killed in Glynn County, in the Brunswick Judicial Circuit, on February 23, 2020. Four days later, on February 27, 2020, the Attorney General’s Office received a letter from Jackie Johnson, the District Attorney of the Brunswick Judicial Circuit, advising that she had a conflict and that she was requesting the appointment of another prosecutor. Ms. Johnson wrote that the reason for the conflict was because the investigation into Mr. Arbery’s death involved Greg McMichael, a former investigator with her office. Shortly after receipt of Ms. Johnson’s letter, this office was made aware that Ms. Johnson had contacted George Barnhill, District Attorney of the Waycross Judicial Circuit, and that he had agreed to accept the case. This office confirmed with Mr. Barnhill and, pursuant to O.C.G.A. § 15-18-5, this office appointed Mr. Barnhill to prosecute the case on the same date Ms. Johnson’s letter was received.
Not long after Mr. Barnhill’s appointment, he and Ms. Johnson learned that Mr. Barnhill’s son, an assistant district attorney in Ms. Johnson’s office, had worked with Mr. McMichael on a prosecution involving Mr. Arbery. Mr. Barnhill, however, held onto the case for several more weeks after making this discovery. On April 7, 2020, the Attorney General received correspondence from Mr. Barnhill advising of a conflict and requesting the appointment of another prosecutor. Mr. Barnhill cited his son’s involvement with Mr. McMichael and Mr. Arbery as a reason for his request.
Mr. Barnhill’s letter failed to disclose his involvement in this case prior to his appointment. In her conflict letter of February 27, 2020, Ms. Johnson had advised that the Glynn County Police Department was “currently investigating” the shooting death of Mr. Arbery, and that she was requesting new counsel to advise the police. Unknown and undisclosed to the Attorney General, however, Mr. Barnhill had already provided an opinion to the Glynn County Police Department on February 24, 2020, that he did not see grounds for the arrest of any of the individuals involved in Mr. Arbery’s death. He additionally stated his opinion to the Glynn County Police Department in writing that there was insufficient probable cause to make any arrests in the case and that he would be asking the Attorney General to appoint another prosecutor.
After receipt of Mr. Barnhill’s conflict letter, the Attorney General then appointed District Attorney Tom Durden of the Atlantic Judicial Circuit to this case on April 13, 2020. On May 5, 2020, Mr. Durden requested that your agency conduct an investigation into Mr. Arbery’s death. Two days later your agency arrested Mr. McMichael and his son for aggravated assault and felony murder for Mr. Arbery’s death.
The GBI is proceeding with this criminal investigation. Anyone with information pertinent to the case is asked to contact the GBI at 1-800-597-TIPS (8477).