It’s hard not to ascribe the worst of motives to the former Glynn County, Georgia, district attorney over her decision to do nothing about three men, one of whom had worked for her, over the murder of Ahmaud Arbery. There was video. We saw it. Could this be anything but a whitewash?
But once Jackie Johnson was voted out of office as DA, after the case was transferred to other prosecutors for investigation and prosecution, and the three defendants were charged with Arbery’s murder, what was left to do? Georgia Attorney General Chris Carr indicted Johnson.
Said accused had previously taken the oath of District Attorney on or about August 12, 2010. Said oath included the following language: “I, Jackie Johnson, do swear (or affirm) that I will faithfully and impartially, and without fear, favor, or affection, discharge my duties as DISTRICT ATTORNEY, and will take only my lawful compensation … SO HELP ME GOD!”
The “so help me God” in all caps is a nice touch, very Georgian. But the oath is, with irrelevant variation, the same taken by all prosecutors, and essentially all elected officials. It’s purpose is real, to impress upon the official the seriousness of performing the duties of the office with the utmost integrity. But what, exactly, that means is a very different matter. Sure, there are acts which clearly and objectively contravene the oath, such as taking bribes or prosecuting someone you don’t like for a crime that you know never happened.
But beyond the obvious, it gets very fuzzy. Part of the duty of a prosecutor is to exercise discretion, and that has become, in itself, quite an imaginative exercise of late.
On or about February 23 , 2020, said accused violated the above provision of her oath of District Attorney by showing favor and affection to Greg McMichael during the investigation into the shooting death of Ahmaud Arbery, thereby failing to discharge her duties as district attorney, to wit: said accused violated Article I, Section I, Paragraph XXX of the Georgia Constitution, a duty required by law, by failing to treat Ahmaud Arbery and his family fairly and with dignity when, after the shooting of Ahmaud Arbery, said accused sought the assistance of Waycross Judicial Circuit District Attorney George E. Barnhill and, after disqualifying her office, recommended DA Barnhill to the Attorney General ‘s Office for appointment as the case prosecutor without disclosing that said accused had previously sought the assistance of DA Barnhill on the case.
There is much that Johnson did wrong here, but was believing McMichael, her former employee, a crime? Was failure to treat a murder victim’s family “fairly and with dignity” by seeking the assistance of another elected district attorney a crime? Before you shout “Yes, yes it was!” consider that Johnson’s actions were pretty normal stuff, the things prosecutors ordinarily do under the circumstances. More to the point, they were clearly within her authority and the parameters of an exercise of prosecutorial discretion.
Johnson made decisions and Carr, in retrospect, contends that they were the wrong ones. And they were as far as most people are concerned. But that doesn’t make them criminal, just bad decisions, the sort of decisions for which an elected official gets voted out of office. And Johnson was voted out of office.
Who decides who to credit? Who decides what’s “fair” to a victim’s family? Who decides what’s sufficiently dignified? And since when is failing to treat a murder victim’s family with dignity a crime at all? These aren’t bright lines, objectively discernible from miles away, but are as squishy and personal as they come. And in the performance of a prosecutor’s duty, decisions about such matters are made all the time. And sometimes, it turns out that the wrong decision was made. And sometimes, it turns out that reasonable people can disagree about what the right decision was, or at least what the better decision might have been.
Should a prosecutor be indicted for exercising discretion which, in the eyes of another prosecutor whose own career could be enhanced by prosecuting a now-hated former district attorney, later turns out to be an arguably bad choice? Consider that district attorneys make such decisions every day based on the information they possess at the time. They need to decide who to believe and who to doubt. They need to decide who to trust and who not to trust. They need to decide a great many things in reaching a decision, and like anyone else, are guided in their choices by their beliefs, experience, empathy and assumptions, as well as the information they possess at the moment. Each of these decisions requires some degree of latitude, as prosecutors weigh and balance the alternatives before them. It’s not an exact science all the time.
There is a possibility that former Glynn County District Attorney Jackie Johnson knew that Ahmaud Arbery was murdered and, because of her relationship with McMichael or her feelings about Arbery, made the deliberate decision to do what she could to prevent her former employee from being prosecuted. But that’s not what’s alleged in the indictment, and outside of a witness coming forward to testify that Johnson confessed to such venal conduct, there is almost no possibility of successfully pursuing such a claim. Rather, Johnson is indicted for violating her oath by choosing poorly.
Is this really the Pandora’s Box anyone sagely wants to open? Do we want district attorneys to exercise their “discretion” in favor of prosecution out of fear that they may get indicted if they don’t? Do we want no prosecutor to dismiss a case where they doubt its merit or the claim of a complainant, lest they end up in the dock instead?
And from the other side, should progressive prosecutors be indicted for violating their oath by their refusal to prosecute petty larceny or drug possession cases as a matter of ideology, even though they are very much crimes as enacted by legislatures? They take no oath to only prosecute cases when they involve a crime they don’t like. Do they favor black defendants? Do they “believe women”? Does categorical refusal to prosecute treat the victims of larceny with dignity?
It’s not that district attorneys should be immune from prosecution if they commit a crime. They shouldn’t. But when the crime is based on the exercise of discretion with which someone later disagreed, we’re on very dangerous ground. Condemn them for it. Criticize them. Unelect them. But prosecution for violating their oath of office for making choices which are later deemed wrong is not the answer.
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