For more than two months after Travis and Gregory Michael confronted Ahmaud Arbery on a quiet suburban street outside of Brunswick, Ga., law enforcement officials either backed away from the case or found that no crime had been committed.
It wasn’t until cell phone footage of Arbery’s killing on Feb. 23 went viral that the case, seemingly frozen, began to move. But as the horrific video showing Arbery’s final moments was viewed millions of times around the world, many wondered: Could what the McMichaels did—ambushing a person they suspected of being a burglar, then shooting him three times in broad daylight—actually be legal? According to the second prosecutor who took the Arbery case, Waycross County District Attorney George Barnhill, it was.
In a letter in which Barnhill recused himself from the case and offered recommendations on how to proceed on it, the DA cited Georgia’s citizen’s arrest and self-defense laws. According to him, Arbery’s killing was well within the confines of Georgia law.
But that view is far from universal—in fact, the Georgia Bureau of Investigation (GBI) has called upon the Department of Justice to probe how the Glynn County Police Department and local prosecutors handled with the Arbery case between February and early May.
The Root spoke to attorney Robert James last Friday to get a clearer understanding of what the law actually permitted the McMichaels to do, why Barnhill’s letter was so egregious, and what to expect next in Arbery’s murder case.
James worked as a prosecutor for a total of 17 years, with six years of experience as an elected district attorney representing DeKalb County, which includes parts of metro Atlanta and Decatur.
[This interview has been lightly edited and condensed for clarity.]
The Root: There’s been a lot of talk about citizen’s arrest and self-defense statutes in Georgia, especially since the second prosecutor to look at this case, Brunswick District Attorney George Barnhill, said there was no standing to arrest the McMichaels. You have a different take on what those statutes actually allow you to do.
Attorney Robert James: The Georgia Citizen’s Arrest Law allows citizens to arrest people and detain them until the police get there in two different scenarios: The first one is a standard scenario of a shopkeeper or a loss prevention officer or a store detective, that if you see a crime taking place and have firsthand knowledge of it, then you’re able to stop that person and detain that person until the police get there.
It doesn’t have to be shoplifting or stealing. If you see an assault, if you walk out of your job and you see a man assaulting a woman in a parking lot and you intervene, you don’t have to let that individual go. You can hold that individual until the police get there.
The other scenario is if you do not see the crime happening, but you see an individual fleeing and you want to chase that individual and keep them from fleeing. In that scenario, you can only chase that individual down if you have reasonable grounds of suspicion of a felony that has been committed. So you have to have something to believe the individual has committed a felony. Well, entering onto a construction site that is open—and it’s important that it’s open—in and of itself is not a felony. As a matter of fact, it’s not even a misdemeanor. The only way it becomes a misdemeanor is if you are entering that property for unlawful purposes, which would be criminal trespass, or if you destroy something while you’re on the property, or if the owner has given you previous notice not to enter or tells you to leave and you don’t leave, which is not the case here.
Just because you say someone is a burglary suspect doesn’t necessarily mean that they are. You have to have facts and circumstances that you can articulate, just like any police officer, as to why you stopped an individual for a crime. And so [people who do citizen’s arrests] are held to the same standard as police officers are.
When you look at the video [of Arbery at the construction site], the evidence is to the contrary. They weren’t even there watching him on that site. There’s no evidence that when [Arbery] left the property, as you can see on the tape, there’s no evidence he was carrying copper pipes or construction equipment.
[Arbery] running down the street alone, even if [the McMichaels] confuse it with “flight” as opposed to a jog, is not enough to confront somebody with weapons in that scenario.
TR: There’s a lot of focus on Greg McMichael, in particular, because of his background working for the Brunswick County DA and for the Glynn County Police. What do you think it says about him that he was, in your estimation, erroneously citing these statutes as reasons why he was acting within the terms of the law?
RJ: It says that he essentially is grasping at straws; he’s looking for some defense. Perhaps in his mind, it was self-defense. But, you know, it’s almost cliché at this point. Whether he thought he was acting in the boundaries of the law or not really is immaterial when you look at charging someone.
Now, his background as a DA’s investigator and police officer, you would think that there wouldn’t be such a gross misapplication of the law in this case. You would think that [he] would understand the basic principle that you can’t chase someone down the street with a gun, block their path and confront them if you can’t articulate anything that would lead one to believe [the suspect] has committed a felony.
TR: You’ve said in the past that you know DA George Barnhill personally. What do you think about him basically falling in line with McMichael’s reasoning?
RJ: It stinks. I’ve dealt with several police officers and some of them knew the law better than others. Some of them, unfortunately, didn’t know the law at all. Police officers are just like any other profession: you’ve got some that are highly competent and really know their stuff, and then I’ve had some that were just not up to standard.
But Mr. Barnhill has been applying the laws in [Waycross] County for several decades. He knows the law. His erroneous recommendation, his wrong recommendation to the police chief not to arrest [the McMichaels], I do not believe that was based on ignorance of the law. I do not believe it was based on his lack of competence when it comes to [the] interpretation of the law. And so it begs the question: What would cause him to make such a terrible recommendation to the police chief? One answer is a personal relationship with [the McMichaels], the fact that he knows them.
TR: As a former DA, is there pressure to side with law enforcement in cases like these? What are the things a DA is considering on a relationship level?
RJ: Well, there’s always pressure as the DA (laughs). It’s not just law enforcement, it’s from the community. I dealt with police shootings during the time that I was DA—more than any other DA in the state of Georgia, with the exception of maybe Paul Howard, who was the Fulton County DA. There’s always pressure.
There’s pressure from the police, even if it’s subtle—sometimes, not so subtle—to decide in a way that’s favorable to them. And when you don’t, you get slammed in the police blogs and you get called all sorts of names. But there’s also pressure from the community, from the African American community, to find in a way that they agree with and that they perceive as justice.
The reality is that you’re supposed to do what’s right. You’re supposed to exercise your judgment and apply the law without fear or favor or affection. And if you cannot do that, then you’re supposed to conflict out of the case and get out.
TR: There’s some stuff percolating up now between the Glynn County Police Department and the Brunswick District Attorney’s Office, both of whom are pointing the finger at each other about why arrests weren’t made earlier. Have you been following that?
RJ: I’ve been following it some. The question is, who do you believe? Ultimately, the police can arrest anyone they want to arrest. It’s not like on television, like Law and Order, when we tell them what to do. They remind prosecutors all the time that you can’t tell them what to do. But practically, in a high profile case like this, they seek the DA’s advice because they’re not lawyers. So they’ll treat the DA’s office not as their bosses, but more like in-house legal counsel.
They’ll call and they will ask, ‘What should we do?’ And 99.9 percent of the time, they’re going to follow the DA’s advice. Which is why I was really disturbed by the letter DA Barnhill wrote after he had conflicted out of the case [Barnhill’s letter recommended that no charges be pressed against the McMichaels]. Because, quite candidly, any police department’s going to follow that advice from the DA.
TR: So the phrase you’ve used, “conflicted out”—
RJ: Let me kind of take you through that pretty quickly: The process is when you get a case where you believe you have a conflict, and it could be for any number of reasons, but primarily it’s because the person you’re prosecuting or who is a victim in the case, you have a personal relationship with or they have a personal relationship with someone in your office. Once you take your hands off that case, you are then not supposed to do anything to influence it, because the state attorney general then sends that case to a new prosecutor to prosecute.
TR: So that letter Barnhill sent was kind of a step over the norm?
RJ: It wasn’t “kind of” a step. It was a huge step over the norm. I have been through that process personally, several times. And I can tell you, I never, ever told the attorney general I had a conflict in a case, then turned around and tried to influence what happened in the case. That stinks to high heaven. It is a huge red flag. It’s extremely inappropriate because if you have a conflict, you shouldn’t be doing anything in the first place—but then you turn around and give advice on the most important thing a police chief can do, which is to make a decision whether or not to arrest. I think any DA in the country will tell you it’s inappropriate.
TR: There’s lots of moving parts to cases like these, especially ones that become internationally relevant, as this one has. What sort of things are you keeping your eyes on as things continue to develop?
RJ: There are two different things. One is the practical part of the process, just how it flows. So, first of all, whether or not the [new] prosecutor that’s been appointed, Joyette Holmes, the current Cobb County DA—whether she’s going to present a case to the grand jury and when. It will not be before June 12th because the state Supreme Court has a COVID-19 stay on all those types of proceedings. But how long after June 12th is it going to take?
I’ve been [down to Brunswick] several times. It’s probably five hours from my house here in metro Atlanta. It’s a completely different region of the state—[I wonder] whether or not a local grand jury is actually going to return an indictment. And then the other question is, if they get an indictment, whether or not they can get a conviction. There are a lot of hurdles those prosecutors, the prosecutors that are involved in the case, have to jump before they get to what I consider justice, which would be a conviction.
The other aspect, which has emerged fairly recently, are the investigations into the previous prosecutors that were involved: how they made decisions, whether or not they told the attorney general everything when they were conflicting out of cases and accepting those cases. That’s something that’s gotten pretty interesting here in Georgia, because the attorney general, Chris Carr, has also asked the GBI to investigate them.
This is not just a scenario where justice means holding the people that shot Ahmaud Arbery accountable. It’s a scenario where justice could also mean discovering whether or not there was a cover-up that was motivated by personal relationships, that was motivated by race, and whether or not people actually lied and manipulated the system to get the result that they gained initially—[a non-arrest]—that would have stuck had that video not been released.
TR: Finally, as you mentioned, Cobb County DA Joyette Holmes has an incredible amount of pressure on her with this case. And it’s kind of interesting because, at the same time, there’s the case of Breonna Taylor in Kentucky. We’re seeing, within the same week, these high profile cases being shifted to black prosecutors. Can you speak to that—what kind of pressure are black prosecutors, in particular, facing when they take on these kinds of closely-followed, racially divisive cases?
RJ: Look, being a black prosecutor is hard. Oftentimes, it puts at odds with the nerve center and the heart of your entire community—particularly if you make a decision that is contrary to how activists, and pastors, and people at mom and pop shops feel. Some days you’re a hero; other days you’re a villain.
I don’t foresee a scenario where [Joyette] is going to have to make a tough decision about whether or not to prosecute the case, because it’s so obvious. I’ve had those cases where it’s a really close call and you’ve got to make a decision that you believe is just, but you know the black community is not going to be happy. Your community. And you’ve got to go back to church. You’ve got to go back and get your hair cut, your nails done, or whatever in that community, and people are going to look at you sideways. It’s not like that for white folks. They’ve got to go through [the black community] to get elected, but they don’t live there.
But in this case, it is so obvious. There is the absence of any probable cause or reasonable suspicion that Mr. Arbery was committing a felony on that property. And you can’t claim self-defense when you start the confrontation by confronting somebody with a weapon [as Travis McMichael did].
Joyette is a great attorney. She’s a good prosecutor. And she’s going to do her best. It’s going to be tough because this case is not in Atlanta. This case is not in DeKalb. This case is in Brunswick.
We’ll just have to see what happens and whether or not a grand jury is going to do the right thing, and ultimately, whether or not a jury of 12 people, if it gets to them, is going to do the right thing. This is eerily similar to the Trayvon Martin case, and we saw the result there once it got to a jury.