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Recused District Attorney found 'insufficient probable cause' for immediate arrests in Ahmaud Arbery case

In a letter recusing himself from the case, a south Georgia DA explained why his official saw no grounds for immediate arrests of Gregory and Travis McMichael.

SAVANNAH, Ga. — It took months before two men accused of gunning down a man while jogging through a Brunswick, Georgia neighborhood were arrested and charged with a crime. A letter from one of the prosecutors, who would have investigated the case but stepped down, explains why.

Ahmaud Arbery, 25, was shot and killed after being confronted by Gregory McMichael and his son Travis, after the pair said they followed Arbery, who is black, because they suspected him of being a burglary suspect.

Neither of the men, were arrested for Arbery's Feb. 23 death until months later, when leaked video of the incident began circulating online and sparked overwhelming public backlash.

RELATED: What we know about the timeline of events in the Ahmaud Arbery case

Around the same time, the district attorney specially appointed to the case wrote that after viewing the video "I am of the opinion that the case should be presented to the grand jury of Glynn County for consideration of criminal charges against those involved in the death of Mr. Arbery."

Credit: Glynn County Detention Center
Gregory and Travis McMichael

It's a recommendation that stands in direct opposition to that of George Barnhill, the District Attorney for the Waycross Judicial Circuit, who wrote in a lengthy letter recusing himself of the case that he found "insufficient probable cause to issue arrest warrants" for the McMichales.

In the letter, Barhnill - who was handed the case after the District Attorney for the Brunswick Judicial Circuit recused herself because of Gregory's former employment in her office - wrote how Arbery's mother didn't want him to handle the case because Gregory also at one point worked with Barnhill's son.

RELATED: First two DAs in Arbery case forced to recuse themselves before 3rd DA moved forward

"She (Arbery's mother) believes there are kinships between the parties [there are not] and has made other unfounded allegations of bias[es]," Barnhill wrote. "As such, I believe it is better for my office to step out and am going to recuse myself and the Assistants working for me from handling the case."

The letter goes on to explain why his official saw no grounds for immediate arrests, detailing how the McMichaels were in "hot pursuit" of Arbery with "solid first hand probable cause," that he was a burglary suspect, though the letter does not detail what that probable cause was.

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

READ: Letter from Waycross District Attorney George Barnhill

Barnhill then describes how, from his perspective, the video shows Arbery and the younger McMichael struggling over the gun.

"Given the fact Arbery initiated the fight, at the point Arbery grabbed the shotgun, under Georgia Law, (Travis) McMichael was allowed to use deadly force to protect himself," Barnhill wrote.

RELATED: 911 calls in Ahmaud Arbery case | 'He's running down the street'

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

"For the above and foregoing reasons, it is our conclusion there is insufficient probable cause to issue arrest warrants at this time," Barnhill concluded.

Ultimately, the case ended up with Special Prosecutor Durden, who formally requested the Georgia Bureau of Investigation get involved. On May 6, the GBI opened its investigation. Roughly 24 hours later, the McMichaels were arrested and charged with murder. They were both denied bond during a May 8 first appearance. 

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