As the five-year anniversary of Ahmaud Arbery’s murder approached, his family had been awaiting the final stage in their pursuit of criminal accountability — but the trial of a former prosecutor took an unexpected turn.
Just before the jury was set to receive instructions on Feb. 5, the presiding state court judge dismissed the indictment against former Brunswick Judicial Circuit District Attorney Jacquelyn Lee “Jackie” Johnson.
She had been accused of abusing her authority in order to obstruct the investigation into Arbery’s murder. The 25-year-old had been jogging in a Brunswick, Georgia, neighborhood on Feb. 23, 2020 when he was chased down by three white men and fatally shot. Johnson recused herself the day after the shooting to avoid a perceived conflict of interest because one of the men once worked for the district attorney’s office. Johnson denied any wrongdoing and any interference in the investigation.
Senior Judge John R. Turner’s decision to throw out Johnson’s indictment hasn’t given the family the final closure in criminal court they’ve been seeking. It also raises questions about how a grand jury was able to land an indictment based on the evidence presented by prosecutors against Johnson, only for the judge to throw it out years later.
“We are deeply disappointed by the court’s decision to dismiss the charges against Jackie Johnson. However, we remain grateful that the grand jury chose to indict Johnson and that the Georgia Attorney General’s Office vigorously pursued a conviction,” Cooper’s civil rights attorneys Ben Crump and S. Lee Merritt said in a joint statement with Arbery’s family earlier this month.
Despite the criminal trial’s outcome, it “reaffirmed the systemic failures and institutional racism that not only led to Ahmaud’s murder but also sought to shield his killers from accountability. We will continue to fight, using the facts revealed in this case in our ongoing federal lawsuit against Glynn County, as well as against Jackie Johnson and George Barnhill individually,” Cooper’s civil rights attorneys said.
Arbery’s family and their attorneys want the initial district attorneys in the case to be held accountable. George Barnhill was the first neighboring district attorney to take over the Arbery case after Johnson recused herself.
“This outcome does not mark the end of our pursuit for justice — it strengthens our resolve,” the attorneys said.
Criminal prosecution of a prosecutor for alleged misconduct is extremely rare — much like filing charges against a police officer, elected official, or a lawyer or judge, LeRoy Pernell, professor and former dean at Florida A&M University College of Law, told Capital B.
Pernell and Rima Sirota, a professor of law at Georgetown Law Center, and ethics counsel to the D.C. Volunteer Lawyers Project, break down why holding prosecutors accountable can be difficult — but isn’t totally impossible.
Was Johnson’s prosecution justified?
Most government officials — such as judges, and federal employees — are required to take an oath to uphold the U.S. Constitution. Similarly, attorneys must take an oath upon being admitted to the bar, pledging to uphold that state’s law, adhere to ethical standards, and fulfill their professional responsibilities.
“Lawyers, prosecutors like anybody else, have an obligation to report to the appropriate authority when they know about misconduct from another lawyer — that’s the standard,” said Sirota, a former member of the professional responsibility advisory office of the U.S. Justice Department, told Capital B days before Johnson’s acquittal. “And the lawyers rarely do it [report]. They rarely do it.”
Pernell agreed with Sirota that prosecutors would have a “very tough” time to prove to jurors that Johnson’s “decisions to obstruct justice had no justifiable basis for it, and in fact, was a manifestation of an intent to do something criminally wrong.”
To avoid any conflict of interest, the state attorney general’s office investigated, and prosecuted her on two state charges: felony violation of oath of public officer and misdemeanor obstruction of a police officer.
Nearly 18 months after Arbery’s death, a Glynn County grand jury indicted Johnson for allegedly “showing favor and affection” toward Gregory McMichael, a retired investigator with her office and a former Glynn County police officer, according to the indictment.
The indictment alleged that while Johnson recused herself from Arbery’s homicide investigation to avoid a conflict of interest, she discussed the case with McMichael and Waycross District Attorney Barnhill, and made recommendations.
“Misconduct under any state’s bar rules includes a wide variety of bad conduct, including things that certainly would apply in Johnson’s case, like dishonesty, fraud, deceit, conduct that’s prejudicial to the administration of justice,” Sirota said.
It took 74 days to arrest the men, who were later convicted in 2022 of murder in state court and hate crimes in federal court.
For months, Arbery’s family was led to believe he was killed while allegedly committing a burglary. In May 2020, a cellphone video taken by McMichael’s neighbor, William “Roddie” Bryan Jr., leaked and led to their arrest.
Johnson served as district attorney until she lost her reelection bid in November 2020.
Before Johnson appeared in court as a defendant for pretrial hearings in 2024, McMichael, his son Travis, and Bryan had already been convicted in state and federal courts and sentenced by August 2022. She “waived arraignment and pleaded not guilty on Dec. 21, 2022,” a spokesperson confirmed to Capital B in an email, meaning she entered her not guilty plea without appearing in person.
What’s considered misconduct?
Prosecutorial misconduct occurs when a prosecutor intentionally breaks a law or a code of professional ethics while prosecuting a case.
“Prosecutors, when we look at what we require of them and the standards they’re to live by, the prosecutors themselves very often don’t understand that their obligation is not simply to win a case,” Pernell said. “Their obligation — and this is different from the defense counsel — their obligation is to seek justice. And so when they do things that are not consistent with seeking justice, we all can characterize that as misconduct.”
According to the Fair Fight Initiative, a racial justice nonprofit organization, examples of prosecutorial misconduct include failing to admit evidence that may exonerate a defendant; influencing potential jurors through media; evidence tampering; or making unlawful arguments to the jury, like expressing their personal opinions or alluding to facts not represented by evidence.
Since 1989, prosecutorial misconduct has contributed to more than a third of the 3,659 recorded wrongful convictions — and over half of those exonerees are Black, according to the National Registry of Exonerations database. Only 4% of exonerations involving prosecutorial misconduct have faced personal or professional discipline, according to the registry.
However, when it comes to Johnson’s case, “You have to prove intent,” Pernell said. If she instructed the police officers “not to arrest, what was the intent? Did she think justice would be served by not charging them? How do you prove that intent?”
“There is not one scintilla of evidence that I’ve heard that would authorize a verdict on that count,” Turner, the judge, said at the conclusion of the trial on Feb. 5.
Soon after prosecutors rested their case earlier this month, the judge took the rare step of granting a directed verdict on the misdemeanor obstruction charge against Johnson. The ruling means the judge found the case against Johnson was too weak for any reasonable jury to convict her, according to the Associated Press.
After the defense concluded their case, which included Johnson testifying on her own behalf, Turner dismissed the felony violation of oath of public officer charge, ultimately acquitting her of any prosecutorial misconduct.
“Intentional misconduct, as opposed to a bad decision, or even a really bad decision — the bar to proving prosecutorial misconduct is so high — focusing on intentional or malicious misconduct, is really hard to prove,” Sirota said.
How can prosecutors be held accountable?
“Prosecutors have traditionally — because of the type of immunity — have wide discretion. They have very seldom faced disciplinary actions, and some of them are for outrageous behavior, such as fake evidence, fake subpoenas,” Pernell said.
There are some ways to seek accountability for prosecutorial misconduct, including filing a civil lawsuit, pursuing criminal charges, or reporting the prosecutor to the state’s bar association.
“A prosecutor is an officer of the court and enjoys the same type of protection from civil liability the judge does; that protection is ‘absolute immunity,’” Pernell said, adding, “We cannot sue, or an individual cannot sue a judge, for decisions that a judge makes, even when those decisions are wrong, because we say that they have absolute immunity, and of course they have extended that to prosecutors.”
Advocates for the wrongly convicted are increasingly highlighting “Brady” violations — prosecutors’ failure to disclose favorable evidence, such as a written confession — as one of the most harmful forms of misconduct. The term comes from the 1963 Supreme Court case Brady v. Maryland.
Read More: Wrongful Convictions Reveal the Flaws of the Criminal Justice System
“Under current United States Supreme Court precedent, prosecutors are frequently granted immunity from civil lawsuits … even when they intentionally violate the law, making oversight by public agencies and the courts all the more critical,” according to the Innocence Project.
Absolute immunity does not always extend to prosecutors.
“There are a number of cases where prosecutors have faced civil liability for outrageous conduct that was not part of the trial process. Then it’s a lot murkier whether or not the prosecutors would have that immunity from civil liability,” Pernell said.
Cooper, Arbery’s mother, has an ongoing $1 million federal civil lawsuit filed against the three convicted killers, Johnson, and Barnhill. They’re accused in the February 2021 court documents of conspiring to cover-up Arbery’s murder.
In a civil lawsuit proceeding, that’s when qualified immunity can come into play for prosecutors. The legal doctrine doesn’t apply in criminal liability investigations.
“But criminal prosecution, that’s a more difficult matter, that dates back for decades and decades. And this is a problem faced not only by prosecutors, but with criminally prosecuting police officers as well,” Pernell said.
In preparation for our interview with Capital B, Pernell said he was shocked at the lack of accountability he found in cases of prosecutorial misconduct.
In some instances, “the maximum discipline seems to be a public reprimand, which means they can continue to hold their position,” Pernell said. “So no civil liability, no ethical responsibility, and criminal prosecution, yes, possible, but very, very difficult to win.”
In Georgia, the attorney general, Chris Carr, has prosecuted other elected or appointed officials for unprofessional and unethical standards allegations since taking on his role in 2016, a spokesperson confirmed to Capital B in an email. Those included convictions of former Paulding County District Attorney Donald Richard “Dick” Donovan and former Chattahoochee Judicial Circuit District Attorney Mark Preston Jones.
Filing a complaint through a state’s bar association, those proceedings can go on for years due to internal investigations, and in the end could be a fruitless effort, Sirota said.