The Atlantic Judicial Circuit District Attorney Tom Durden, finally dropped the grand jury stall tactic. Rather than wait until the courts reopen post COVID 19, he has now asked the GBI to begin the investigation of the shooting death of Ahmaud Arbery. However, that is still not enough! The GBI, local law enforcement or a local judge should issue an arrest warrant immediately.
Ahmaud Arbrey is a Brunswick, Georgia man who was shot by two assailants. One of the shooters is a former law enforcement officer. Despite having access to a video of the shooting for at least a week, Durden didn’t initiate this investigation until immediately after the video of Aubrey’s murder went viral.
Georgians are demanding that Arbery’s killers be immediately arrested as they have not been charged more than two months after Aubrey’s murder on February 23, 2020. A drawn out GBI investigation would only add insult to injury in light of the evidence that is very clear on the viral video.
Who can issue an arrest warrant in Aubrey’s case?
In Georgia, a judge has the sole authority to issue an arrest warrant.
Any judge of a superior, city, state, or magistrate court or any municipal officer clothed by law with the powers of a magistrate may issue a warrant for the arrest of any offender against the penal laws, based on probable cause either on the judge's or officer's own knowledge or on the information of others given to the judge or officer under oath. O.C.G.A. § 17-4-40(a)
Judges who have viewed the video of the hunting and killing of Mr. Aubrey can and should act in line with Georgia law. The law allowing a judge to issue a warrant “on the judge’s own knowledge,” has been upheld since 1940 by the Georgia Supreme Court in Rhodes v. Pearce and has never been overturned. 189 Ga. 623, 7 S.E.2d 251 (Ga. 1940).
Even during a pandemic a warrant can be procured. O.C.G.A § 17-4-47 allows the issuance of arrest warrants via video conference.
I understand why judges, who typically make decisions after hearing evidence presented by a prosecutor or the police would be cautious when issuing a warrant based on “the judges own knowledge.” However, in a case that is very reminiscent of Trayvon Martin, it is important that the judicial system use all of it’s available resources.
A judge using the state law to address what has been a two month long miscarriage of justice is the whole reason why people become judges in the first place.
I believe the police report, video, and statements alone are enough for a judge to find probable cause to issue an arrest warrant.
O.C.G.A. § 17-4-20. Authorization of arrests with and without warrants generally; use of deadly force; adoption or promulgation of conflicting regulations, policies, ordinances, and resolutions; authority of nuclear power facility security officer
(a) An arrest for a crime may be made by a law enforcement officer:
(1) Under a warrant; or
(2) Without a warrant if:
(A) The offense is committed in such officer’s presence or within such officer’s immediate knowledge;
(B) The offender is endeavoring to escape;
(C) The officer has probable cause to believe that an act of family violence, as defined in Code Section 19-13-1, has been committed;
(D) The officer has probable cause to believe that the offender has violated a criminal family violence order, as defined in Code Section 16-5-95; provided, however, that such officer shall not have any prior or current familial relationship with the alleged victim or the offender;
(E) The officer has probable cause to believe that an offense involving physical abuse has been committed against a vulnerable adult, who shall be for the purposes of this subsection a person 18 years old or older who is unable to protect himself or herself from physical or mental abuse because of a physical or mental impairment; or
(F) For other cause there is likely to be failure of justice for want of a judicial officer to issue a warrant.
O.C.G.A. § 17-4-40. Persons who may issue warrants for arrest of offenders against penal laws; warrants requested by others; persons who may issue warrants for arrest of law enforcement or peace officers or school teachers or administrators
(a) Any judge of a superior, city, state, or magistrate court or any municipal officer clothed by law with the powers of a magistrate may issue a warrant for the arrest of any offender against the penal laws, based on probable cause either on the judge’s or officer’s own knowledge or on the information of others given to the judge or officer under oath. Any retired judge or judge emeritus of a state court may likewise issue arrest warrants if authorized in writing to do so by an active judge of the state court of the county wherein the warrants are to be issued.
(1) If application is made for a warrant by a person other than a peace officer or law enforcement officer and the application alleges the commission of an offense against the penal laws, the judge or other officer shall schedule a warrant application hearing as provided in this subsection unless the person accused has been taken into custody by a peace officer or law enforcement officer or except as provided in paragraph (6) of this subsection; provided, however, that a warrant may be denied without the notice required in paragraph (2) of this subsection where the application form and any testimony from the affiant provided at the time of the application do not demonstrate probable cause for issuing a warrant.
(2) Except as otherwise provided in paragraph (6) of this subsection, a warrant application hearing shall be conducted only after attempting to notify the person whose arrest is sought by any means approved by the judge or other officer which is reasonably calculated to apprise such person of the date, time, and location of the hearing.
(3) If the person whose arrest is sought does not appear for the warrant application hearing, the judge or other officer shall proceed to hear the application and shall note on the warrant application that such person is not present.
(4) At the warrant application hearing, the rules of evidence at a commitment hearing shall apply as set forth in paragraph (1) of subsection (d) of Code Section 24-1-2. The person seeking the warrant shall have the customary rights of presentation of evidence and cross-examination of witnesses. The person whose arrest is sought may cross-examine the person or persons applying for the warrant and any other witnesses testifying in support of the application at the hearing. The person whose arrest is sought may present evidence that probable cause does not exist for his or her arrest. The judge or other officer shall have the right to limit the presentation of evidence and the cross-examination of witnesses to the issue of probable cause.
(5) At the warrant application hearing, a determination shall be made whether or not probable cause exists for the issuance of a warrant for the arrest of the person whose arrest is sought. If the judge or other officer finds that probable cause exists, the warrant may issue instanter.
(6) Nothing in this subsection shall be construed as prohibiting a judge or other officer from immediately issuing a warrant for the arrest of a person upon application of a person other than a peace officer or law enforcement officer if the judge or other officer determines from the application or other information available to the judge or other officer that:
(A) An immediate or continuing threat exists to the safety or well-being of the affiant or a third party;
(B) The person whose arrest is sought will attempt to evade arrest or otherwise obstruct justice if notice is given;
(C) The person whose arrest is sought is incarcerated or otherwise in the custody of a local, state, or federal law enforcement agency;
(D) The person whose arrest is sought is a fugitive from justice;
(E) The offense for which application for a warrant is made is deposit account fraud under Code Section 16-9-20, and the person whose arrest is sought has previously been served with the ten-day notice as provided in paragraph (2) of subsection (a) of Code Section 16-9-20; or
(F) The offense for which application for the warrant is made consists of an act of family violence as defined in Code Section 19-13-1.
In the event that the judge or officer finds such circumstances justifying dispensing with the requirement of a warrant application hearing, the judge or officer shall note such circumstances on the face of the warrant application.
(7) No warrant shall be quashed nor evidence suppressed because of any irregularity in proceedings conducted pursuant to this subsection not affecting the substantial rights of the accused under the Constitution of this state or of the United States.
(8) Nothing contained in this subsection shall prohibit a judge from denying a warrant based upon the application and testimony heard at the time such application is made without requiring notice to the person whose arrest is sought.
(c) Any warrant for the arrest of a peace officer, law enforcement officer, teacher, or school administrator for any offense alleged to have been committed while in the performance of his or her duties may be issued only by a judge of a superior court, a judge of a state court, or a judge of a probate court.
O.C.G.A. § 17-4-44. Warrants may be issued in any county; execution of warrants without backing or endorsement of judicial officer in county where warrant is executed
A warrant for arrest may be issued in any county, though the crime was committed in another county. A warrant, once issued, may be executed in any county without being backed or endorsed by a judicial officer in the county where the warrant is executed.
O.C.G.A. § 17-4-47. Issuance of warrants by video conference; testimony; initial bond hearings; oaths
(a) A judge of any court in this state authorized to issue arrest warrants pursuant to Code Section 17-4-40 may, as an alternative to other laws relating to the issuance of arrest warrants, conduct such applications for the issuance of arrest warrants by video conference. The issuance of an arrest warrant by video conference shall be valid irrespective of the physical location of the judge at the time of the video conference, provided that the judge issuing the warrant is authorized by law to issue such warrant, and, at the time such warrant is issued, he or she is physically located within this state.
(b) Arrest warrant applications heard by video conference shall be conducted in a manner to ensure that the judge conducting the hearing has visual and audible contact with all affiants and witnesses giving testimony.
(c) The affiant participating in an arrest warrant application by video conference shall sign the affidavit for an arrest warrant and any related documents by any reasonable means which identifies the affiant, including, but not limited to, his or her typewritten name, signature affixed by electronic stylus, or any other reasonable means which identifies the person signing the affidavit and any related documents. The judge participating in an arrest warrant application by video conference shall sign the affidavit for an arrest warrant, the arrest warrant, and any related documents by any reasonable means which identifies the judge, including, but not limited to, his or her typewritten name, signature affixed by electronic stylus, or any other reasonable means which identifies the judicial officer signing the affidavit and warrant and any related documents. Such authorization shall be deemed to comply with the signature requirements provided for in Code Sections 17-4-45 and 17-4-46.
(d) A judge may also utilize a video conference to conduct hearings relating to the issuance of an initial bond connected with an offense for which an arrest warrant is issued, provided that the setting of such bond is within the jurisdiction of that court.
(e) A judge hearing matters pursuant to this Code section shall administer an oath to any person testifying by means of a video conference.GA. Code 17-4-47 Issuance of warrants by video conference; testimony; initial bond hearings; oaths (Georgia Code (2019 Edition))
O.C.G.A § 17-4-42. Issuance of special warrants for arrest; treatment of special warrants as general arrest warrants. “No judicial officer except a judge of the superior court shall issue a special warrant for arrest returnable only before himself; nor shall any superior court judge issue such warrant outside of his own judicial circuit. If issued outside the judicial circuit, the warrant shall be treated as a general arrest warrant.”