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Prosecutor concluded that two white men who shot Ahmaud Arbery were in 'perfectly legal' territory

USA TODAY logo USA TODAY 5/7/2020 Nicquel Terry Ellis, USA TODAY
a man wearing a suit and tie smiling at the camera: Ahmaud Arbery was killed Feb. 23 outside Brunswick, Ga., in Glynn County. © Photo courtesy of Marcus Arbery Ahmaud Arbery was killed Feb. 23 outside Brunswick, Ga., in Glynn County.

ATLANTA — The district attorney who previously led the investigation into Ahmaud Arbery's death told police he did not see grounds for an arrest of the two white men who killed Arbery or the man who recorded it from his vehicle, according to a memo obtained by USA TODAY. 

Waycross Judicial Circuit District Attorney George E. Barnhill said in the memo that Gregory McMichael, his son Travis McMichael and their neighbor William Bryan were in "hot pursuit of a burglary suspect" when they shot Arbery, a 25-year-old black man, as he jogged through the Satilla Shores neighborhood just outside of Brunswick, Georgia on Feb. 23. Barnhill sent the memo to Glynn County Police Capt. Tom Jump

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

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Barnhill also identifies William Bryan, who is white, as the man who shot the video of the killing of Arbery. Bryan has an address listed in the Satilla Shores neighborhood, according to the police report. 

The decision not to arrest the McMichaels or Bryan has fueled outcry across the nation with attorneys for Arbery's family saying he was racially profiled. Local officials and community leaders say a history of nepotism and privilege in the district attorney offices of Waycross and Brunswick has allowed the killers to remain free. 

Barnhill said in the letter that he was recusing himself from the case over a conflict of interest. In the memo, he stated that Arbery's mother wanted him off the case because his son worked in the Brunswick District Attorney's office. 

Brunswick District Attorney Jackie Johnson had previously recused herself from the case because Gregory McMichael was a retired investigator from her office. Gregory McMichael is also a former Glynn County police officer. 

"You have relational connections that run back for generations," said Rev. John Perry II, president of the Brunswick NAACP. "We believe the privilege of relationships caused the delay we are experiencing." 

Perry has called for Glynn County Police Chief John Powell, who is currently on paid administrative leave for violating oath of office in an unrelated matter, to step down.  

“Based on his negligence to say that an arrest should be made, there is no way that our taxpayer dollars should be paying him," Perry said. 

The case is now being led by Atlantic Judicial Circuit District Attorney Tom Durden and the Georgia Bureau of Investigations. 

Durden has promised to send the case to a grand jury to consider criminal charges. But that may not happen until June because Georgia courts are largely closed due to the coronavirus.

The video of Travis McMichael shooting Arbery has been spread widely on social media.

Alan Tucker, a criminal defense attorney in Brunswick, said in a statement Thursday that he released the video because "there was entirely too much speculation, rumor, false narratives and outright lies surrounding the event."

"My sole purpose in releasing the video was absolute transparency because my community was being ripped apart by erroneous accusations and assumptions," said Tucker, adding that he had not been retained by anyone for the case.

Tucker did not respond to a request for comment on why he had the video. 

Benjamin Crump, an attorney for the Arbery family, posted a photo on Twitter Thursday of a man he says is Bryan.

"If he chased down Ahmaud and filmed his execution, he should be arrested and charged with aiding and abetting them in committing this crime of murder," Crump said. 

Gregory McMichael told police they followed Arbery because he appeared to be the person seen on a surveillance video breaking into homes, the police report said. 

USA TODAY filed an open public records request with the Glynn County Police Department for burglaries and home break-ins in the Satilla Shores neighborhood between Jan. 1 and Feb. 23. The department's records office said in an email Thursday it had no records matching that request. 

In Barnhill's memo, he said the video shows Arbery attacking Travis McMichael which led to a tussle over McMichael's shot gun. He suggests that it's unclear who pulled the trigger leading to Arbery's death. 

"Arbery's mental health records and prior convictions help explain his apparent aggressive nature and his possible thought pattern to attack an armed man," Barnhill wrote. 

Glynn County Commissioner Allen Booker said he doesn't fault the Glynn County Police Department for not making the initial arrest and believes Johnson's office made the call. 

“It's obvious there was special treatment because they aren't in jail," Booker said.

Booker said Arbery was a family friend and often saw him in the neighborhood doing landscaping work with his father. He described Arbery as "polite" and "always smiling." 

"Everybody is mad, heartbroken, some folks who grew up here say we know that racism is here in this community like every where else," Booker said. "But we didn’t think there were folks with that much hatred that they would hunt down a young man like a dog and kill him. And then not be in jail for it."

Contributing: Grace Hauck of USA TODAY

This article originally appeared on USA TODAY: Prosecutor concluded that two white men who shot Ahmaud Arbery were in 'perfectly legal' territory

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