This seems a bit scary. The former Brunswick (Georgia) District Attorney now faces up to five years in prison because she advised the Glynn County Sheriff to hold off on arresting the persons involved in the shooting of Ahmaud Arbery in February of 2020. A grand jury was convinced that the prosecutor had showed "favor and affection" to the father of the shooter and also failed to treat Arbery's family "fairly and with dignity" and thereby failed to faithfully perform and discharge the duties of her office without malice or partiality, to the best of her ability.

Prosecutors are generally given great discretion in determining whether to accept a case and how best to pursue the truth and have generally been called out only for choosing to prosecute. The ABA standard seems qualified by language that the discretion should exercised for good cause consistent with public interest. But, it has been said that a prosecutor has discretion to decline prosecution even if there is probable cause to believe that an individual has committed a crime. The Ohio Supreme Court has said "A prosecuting attorney can be compelled to prosecute an individual only when the failure to prosecute constitutes an abuse of discretion."

It does not appear that a delay in the arrests hampered in any way the subsequent indictment of the McMichaels or were otherwise a planned effort to coverup wrongdoing or affect the availability of evidence.

Does the line of thought involved in the Georgia case represent a change in how sec. 39.01(1) and 39.02(a)(1) might be understood in Texas?

Two NBC commentators have now observed:

quote:

[W]e can anticipate a tough road ahead for the indictment against Johnson alleging “favoritism” and obstructing justice by directing a non-arrest. She is likely to contend that her motives were proper — for example, that she honestly thought it would have been rash to make an arrest before the investigation had uncovered all the relevant facts. It will take strong evidence to persuade a jury unanimously and beyond a reasonable doubt that she acted corruptly, not mistakenly or ineptly.

They urge that "prosecutorial discretion" should not cover "improper motives."

The theory for holding Johnson to have engaged in felonious conduct is this: "despite having knowledge that Greg McMichael’s case should have been conflicted to the Attorney General’s Office because he was her former Chief DA Investigator, employee, and now a murder suspect, Johnson did not use the lawful conflict procedure. Rather, instead of using the lawful conflict procedure and immediately notifying the Attorney General’s Office, DA Johnson allowed DA Barnhill to render a decision on the case – a decision that she classified as urgent. Johnson effectively chose the outcome of the case despite having a conflict under O.C.G.A. § 15-18-5."

The AG thus criticizes: "DA Johnson’s initial handling of the case, how the case got to George Barnhill before Johnson claimed a conflict, Barnhill’s actions after receiving the case, and Johnson’s communications with now-convicted murderer Greg McMichael during the investigation."

Johnson has not yet been required to appear in court on the charge.

The trial judge found that there was no evidence presented showing Johnson obstructed or hindered a police investigation by encouraging delay in the arrest of the suspects. Apparently, the Attorney General (and grand jurors) simply assumed Johnson had influenced the police.

The felony offense of dereliction of duty was dismissed, but without determination of how to judge Johnson's alleged erroneous hand-off of the case to George Barnhill or failure to advise the Attorney General that Barnhill was not a good candidate for appointment to handle the case. Perhaps this decision was influenced by the decision of the Georgia Supreme Court in the Neuman case, 856 S.E.2d at 295 n.6 that 15-18-5 "is not the source of a test for disqualification" meaning "the grounds for disqualification [must] come from other sources of law."

The apparent ground for dismissal was that the indictment alleged Johnson had violated an oath that had expired or been supplanted by a new oath in 2016.

How this all will determine or guide the future conduct of prosecutors remains to be seen.