For the third time, the prosecution of Ahmaud Arbery’s accused killers has been assigned to a new prosecutor. In addition, Georgia Attorney General Chris Carr recently asked the federal Department of Justice to investigate the evident problems with how the case has been handled thus far. Carr promised to provide his office’s “entire file regarding the appointment process for the prosecutors in this case and provide any assistance requested by the [DOJ].” In addition, as reported in the NYT:
Justice Department officials said on Monday they were weighing whether to bring federal hate crime charges, and had asked state officials to pass along relevant information as they consider bringing an investigation. “We will continue to assess all information,” Kerri Kupec, a Justice Department spokeswoman, said in a statement, “and will take any appropriate action that is warranted by the facts and the law.”Rick Rojas & Richard Fausset, Killing of Ahmaud Arbery is Switched to a Fourth Prosecutor, NY Times (May 11, 2020).
One can only hope that something positive comes out of the DOJ’s involvement in the Arbery case. Unfortunately, recent history has shown that the agency’s leadership is unlikely to view the murder of an innocent African American by a former police detective and his son, and the racially biased law enforcement response to that murder, as serious civil rights concerns.
Among other tragic cases, Arbery’s case recalls the killing of Eric Garner, who was choked to death by NYPD Officer Daniel Pantaleo in full public view as bystanders filmed the encounter and Garner repeatedly gasped “I can’t breathe.” For five full years, under both Presidents Obama and Trump, DOJ officials squabbled about whether to file criminal charges against Panatelo. Finally, on the day before the statute of limitations would have expired, U.S. Attorney Richard P. Donoghue of the Eastern District of New York announced that Pantaleo would not be charged with civil rights violations.
Every case is different, but many of the DOJ officials who saw the video of Garner’s killing and were able to convince themselves that Pantaleo had not “willfully” applied “objectively unreasonable force” will likely be involved in the federal investigation of the Arbery case. I hope to be proved wrong, but that does not bode well for a just outcome.
On February 10, the career prosecutors who had tried and won the criminal case against Roger Stone submitted a request for a prison sentence within the U.S. Sentencing Guidelines’ recommended range of 87 to 108 months. (Federal prosecutors almost always request Guidelines-based sentences; to their way of thinking the sacrosanct Guidelines somehow manage to prescribe the most reasonable range of sentences in nearly every case.) The next day, after President Trump’s 1:48 a.m. tweet denigrating the career prosecutors’ request as a “miscarriage of justice,” the central Department of Justice office filed a revised memorandum asking for a sentence “far less” than the Guidelines range. There was no reasonable or innocent explanation for this unprecedented move. The central DOJ office did not have an overnight epiphany about the general ineffectiveness of long prison sentences as a means to prevent crime. Rather, Attorney General Barr and/or others within the DOJ clearly intervened in a criminal matter on behalf of the President’s friend in order to appease the President.
Instead of playing along with the central office’s efforts to help Stone, all four of the career prosecutors who had been involved in the case withdrew for ethical reasons, and one of them, Jonathan Kravis, quit his job as a prosecutor. Earlier today, in light of recent revelations about Barr’s interference on behalf of Michael Flynn, who had already pleaded guilty to criminal conduct on two separate occasions, Kravis published a compelling Op-Ed in the Washington Post:
In both cases, the department undercut the work of career employees to protect an ally of the president, an abdication to the commitment to equal justice under the law. Prosecutors must make decisions based on facts and law, not on the defendant’s political connections. When the department takes steps that it would never take in any other case to protect an ally of the president, it betrays this principle.
If the department truly acted because of good-faith commitments to legal positions, then where is the evidence of those commitments in other cases that do not involve friends of the president? Where are the narcotics cases in which the department has filed a sentencing memorandum overruling career prosecutors? Where are the other false-statements cases dismissed after a guilty plea? There are none. Is that because the only cases in the United States that warranted intervention by department leadership happened to involve friends of the president? Of course not.Jonathan Kravis, I Left the Justice Department After It Made a Disastrous Mistake. It Just Happened Again, Wash. Post (May 11, 2020)