Chris Carr, Georgia attorney general (Photo: John Disney/ALM)

The two South Georgia district attorneys who didn't pursue criminal charges in connection with the shooting death of Ahmaud Arbery are now the targets of a Georgia Bureau of Investigation probe—plus a caravan of civil rights lawyers and activists seeking their removal from office.

Organizers of a movement called We are NOT Satisfied said their focus is to demand the resignations of Brunswick Judicial Circuit District Attorney Jackie L. Johnson and Waycross Judicial Circuit DA George E. Barnhill, both of whom sent the case on without arrests.

"Once again, the justice system has failed the black community. Over two months had passed before charges were brought against two men who gunned down in the street Ahmaud Arbery while he was jogging a few minutes from his home," Christopher Bruce, political director of the ACLU of Georgia, said Thursday. "The actions that District Attorneys Johnson and Barnhill took in this murder case have shown them to be unfit to execute the duties of their office. The ACLU of Georgia stands with Glynn County's community leaders in calling for them to resign."

Along with ACLU of Georgia, co-sponsors of a 300-mile caravan from Atlanta and rally in Brunswick Saturday include: Black Voters Matter, Georgia NAACP and the Southern Center for Human Rights. Notable civil rights attorneys on the organizing committee include: Derrick Boazman, Mawuli Davis, Tiffany Williams Roberts and Francys Johnson.

Jackie Johnson, district attorney, Glynn County, Georgia. (Courtesy photo)

Johnson said she has been unfairly maligned.

"We are confident that any investigation will ultimately show that our office acted appropriately under the circumstances," Johnson said in an email Thursday. "There is a public misconception about this case due to false allegations against our office by those with an agenda. Our obligation has been, and will always be, to honor, protect, and abide by the law."

She said she would have "no further comment at this time" in the "interest of protecting the integrity of any future legal proceedings."

Barnhill said in an email that, since the case is ongoing, "it is not subject to open records requests or release of any information."

"Further as a member of the State Bar of Georgia I am not allowed by State Law and State Bar rules to have any public comment on the facts, or on the law, or on the news stories about the case, to ensure a fair and just trial for all parties. Let the courts and the criminal  justice work," Barnhill said.

"As far as any investigation into my office's handling of the case," Barnhill added, "I welcome the investigation and look forward to the review."

Following the May 7 arrests for the shooting on Feb. 23, Attorney General Chris Carr said he had serious questions about why it took so long. The following Sunday, he asked the U.S. Justice Department to review the handling of the case. The federal investigation, Carr said, will be led by Bobby Christine, the U.S. attorney for the Southern District of Georgia.

Carr's office followed up this week with another request to investigate the local prosecutors, this one to Georgia Bureau of Investigation Director Vic Reynolds. "Unfortunately, many questions and concerns have arisen regarding, among other things, the communications between and actions taken by the District Attorneys of the Brunswick and Waycross Circuit," Carr said in a written statement. "As a result, we have requested the GBI to review in order to determine whether the process was undermined in any way."

Deputy Attorney General Blair L. McGowan laid out those concerns in a detailed letter to Reynolds on May 11.

"I am writing to request 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," McGowan said. "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."

The request includes correspondence from Johnson and Barnhill, both of whom asked the AG to find another prosecutor because they had conflicts over connections to Gregory McMichael, 64, who was later arrested and charged with murder and aggravated assault along with his son Travis McMichael, 34. Greg McMichael was an investigator in Johnson's office before he retired. Barnhill's son is an assistant district attorney for Johnson and worked with McMichael.

"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," McGowan said.

The letter gave a timeline of events. Arbery was shot and killed on a Glynn County road on Feb. 23. Johnson recused on Feb. 27. The AG's office appointed Barnhill to take over the same day  after learning that Johnson had already talked to him about doing so. Not long afterward, they both realized his son had worked with McMichael in her office.

"Mr. Barnhill, however, held onto the case for several more weeks after making this discovery," McGowan said, noting that it was not until April 7 that Barnhill reported his conflict and requested  the appointment of another prosecutor.

"Mr. Barnhill's letter failed to disclose his involvement in this case prior to his appointment," McGowan said. "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."

The correspondence McGowan submitted to the GBI includes a letter from Barnhill to Glynn County Police Captain Tom Jump. In the letter, Barnhill explained his plans to recuse and repeated his belief that no arrests were warranted.

"After talking by telephone with you yesterday, I appreciate there is immediate pressure on your department as to the issue of Arrest. Since I have already given you an initial opinion the day after the shooting, I feel I can still comment on this limited issue," Barnhill said. 

"We do not see grounds for an arrest of any of the three parties," Barnhill said, referring to the McMichaels, plus the neighbor who recorded the video showing the confrontation and resulting shooting. Barnhill made reference to "what we already viewed as shown in the videotape." He said the men were in "hot pursuit" of someone they believed to be "a burglary suspect" in "their neighborhood"—the Satilla Shores subdivision.

"It appears their intent was to stop and hold this criminal suspect until law enforcement arrived," Barnhill said. "Under Georgia Law this is perfectly legal."

In the AGs request for the GBI investigation, McGowan went on to note that, after receiving Barnhill's April 7 conflict letter, the AG then appointed District Attorney Tom Durden of the Atlantic Judicial Circuit to the case on April 13.

"On May 5, 2020, Mr. Durden requested that your agency conduct an investigation into Mr. Arbery's death," McGowan said.

That happened to be the same day the AG, the GBI director, Gov. Brian Kemp and most of the rest of the country saw the video circulating on social media showing a young black man, Arbery, running along a road until he is confronted by a pickup truck and two armed white men. After a brief struggle over a shotgun pointed at him, Arbery is killed. The governor called the video horrifying. The AG called it repulsive.

"Two days later your agency arrested Mr. McMichael and his son for aggravated assault and felony murder for Mr. Arbery's death," McGowan concluded.

As it turned out, Durden didn't keep the case either. Carr said he appreciated Durden's involvement, but the "case has grown in size and magnitude" since. "As an experienced district attorney, Tom has recognized that another office is better suited from a resource perspective to now handle the case. As a result, he has requested our office to appoint another district attorney."

On the Monday after the arrests, Carr reassigned the case to Cobb Judicial Circuit District Attorney Joyette M. Holmes from Marietta—300 miles away.