Bookman: Waycross DA’s judgment of Brunswick shooting video ‘insane’

In an April letter to Glynn County Police Department investigators, Waycross Judicial Circuit District Attorney George E. Barnhill said as he recused himself from the Ahmaud Arbery case that he did not see probable cause to arrest the two men involved in the shooting that killed the black jogger. Wes Wolfe/Georgia Recorder

Somebody thought the video of the killing of Ahmaud Arbery had to be made public if Arbery and his family were to get a chance at justice.

That unknown somebody was right.

The 36-second video of Arbery’s death is a brutal, difficult thing to watch. It looks for all the world like a modern lynching. 

Our columnist says the investigation into the February shooting of an unarmed black jogger in Brunswick makes it look as if a brutal case of unprovoked racist vigilante violence has been sanctioned by a racist government, as if it’s 1920 not 2020. This confederate memorial near downtown Brunswick was erected in 1902. John McCosh/Georgia Recorder

Even more damning, it makes the government response to Arbery’s death look exactly like a modern coverup of a lynching. It makes it look as if a brutal case of unprovoked racist vigilante violence has been sanctioned by a racist government, as if it’s 1920 not 2020.

The facts, briefly, are these:

On a sunny Sunday afternoon in late February, Arbery, 25, was jogging down the middle of a quiet suburban street near Brunswick on the Georgia coast. He was wearing jogging clothes – shorts, T-shirt, Nikes — as he always did on his regular runs. 

Arbery was black. Two white men decided that the black man jogging through their neighborhood on a Sunday afternoon was a burglar. They armed themselves and began to pursue him in a vehicle. They cornered Arbery, cut him off from all means of escape, and ended up shooting him three times. He died at the scene. He didn’t have a gun, he didn’t have a TV set smuggled in his running shorts.

More than two months later, no charges have been filed; no arrests have been made.

The first few times I watched the graphic video of Arbery’s killing, which surfaced Tuesday, I was trying to hope that it was new evidence, that the decision made weeks ago by local prosecutors not to file charges had come before the video came to light, before they had the benefit of seeing for themselves what had happened.

That hope was in vain. It turns out that local prosecutors have had the damning video from the beginning, and had made the decision not to prosecute despite having seen it. They also refused to release the video to the public, until someone, someone with access to it, decided it had to be seen.

Justice was always going to be difficult for a dead black man in south Georgia, unable to tell his side of the story, against two white men. But in this case, one of the three men who accosted and shot Arbery, Greg McMichael, is a retired investigator for the Glynn County district attorney. So toss in the fact that the white men in question have close ties to local law enforcement, and the odds against a fair hearing grow longer still.

Because of McMichael’s job history, the Brunswick district attorney initially passed the case to George Barnhill, district attorney for the neighboring Waycross Judicial Circuit. It was Barnhill who made the initial decision not to seek charges in the case, although he too has since recused himself.

In an internal memo, Barnhill tried to justify his refusal to consider charges, and frankly the interpretation of events that he offers in that document is bizarre. Barnhill basically describes Arbery as the attacker, depicting McMichael and his son Travis as innocent victims who were just trying to defend themselves. 

That’s right: in Barnhill’s view, the aggressors weren’t the men who armed themselves with a shotgun and a .357 magnum pistol and hunted down another person; the aggressor, the attacker, was the lone unarmed man jogging down the middle of the street on a sunny day.

The video shows nothing like that. It shows Arbery trying to avoid conflict, and the well-armed McMichaels insisting upon it, forcing a physical confrontation. 

In Barnhill’s version of the video, Arbery “attacks Travis McMichael.” He writes that “Arbery initiated the fight,” and “under Georgia law, McMichael was allowed to use deadly force to protect himself.” He says it is Arbery, not the McMichaels, who shows “apparent aggressive nature.”

That’s just incredible, or as a criminal lawyer put it to me after reading the document, “insane.”

Barnhill even goes on to suggest that Arbery in effect may have murdered himself. Yes, it was Travis McMichael’s shotgun; yes, McMichael aimed it at Arbery; yes, it was McMichael’s finger on the trigger. But in Barnhill’s opinion, during a struggle “Arbery would only had to pull the shotgun approximately 1/16th to 1/8th of one inch to fire (the) weapon himself.”

Using McMichael’s finger, of course.

It’s the kind of argument that a desperate defense attorney might make, when all other facts were against his client and he had no better case to offer. But Barnhill was not acting as a defense attorney, at least not officially. He is a prosecutor, and it is more than strange to see a prosecutor torture every possible ambiguity in a case, and some that aren’t ambiguous at all, in order not to file charges.

There are undoubtedly things that we don’t know yet, things that a grand jury and then a jury should learn before casting final legal judgment. A rush to assume guilt helped lead to Arbery’s death; the McMichaels should get the fair hearing in court, the due process that they denied the black man jogging through their neighborhood. A third district attorney, Tom Durden, has now been assigned the case, and Gov. Brian Kemp has committed the Georgia Bureau of Investigation to help bring clarity and a possible indictment.

But the decision not to even try to bring charges, to try to sweep this under the rug despite serious evidence of wrongdoing? That’s a damning, damning indictment of the justice system.