In February 2025, a Glyn County District Judge dismissed felony charged against an ex-prosecutor accused of abusing her authority. The move came less than a week after the judge dismissed misdemeanor charges against former District Attorney Jackie Johnson, citing a lack of evidence.
In 2020, Ahmaud Arbery was chased by three white men in pickup trucks through their neighborhood in Glynn County, Georgia, before being fatally shot. The incident, which occurred nearly five years ago, gained national attention after a cellphone video of the shooting surfaced. The three men involved—Greg McMichael, Travis McMichael, and William “Roddie” Bryan—were later convicted of murder and federal hate crimes.
Johnson, who was the district attorney at the time, faced scrutiny for her handling of the case, with allegations that she used her authority to protect Greg McMichael, a former investigator in her office.
“Frankly, this is a decision I didn’t want to make,” Judge John Turner told attorneys in the courtroom. But he said he felt the defense’s challenge to the indictment against Johnson “needs to be granted.”
It remains unclear whether new charges could be brought against Johnson with revised indictments or if further legal action will be pursued.
Typos on the Ticket
When we began practicing law a few years ago (okay, maybe it was more than “a few” years ago), this defense was rather common. A real person prepared the information or indictment, the two primary charging documents used in criminal cases. So, errors were not uncommon, especially in large jurisdictions like Cobb County that processed hundreds of these documents each day.
The typo defense isn’t nearly as common today. Furthermore, then as now, and contrary to popular myth, a judge doesn’t automatically throw a case out of court if the charging instrument is inaccurate. Two legal doctrines, fatal variance and idem sonans, often apply.
Any typo or other technical error must create a fatal variance between the proof and the pleading. The infamous Ruger-Luger case is a good example.
According to an indictment, the defendant used a “.22 caliber Ruger automatic pistol” to threaten a person with imminent bodily harm, an act which, at the time, was considered aggravated assault in Texas. According to the evidence presented, the defendant used a .22 caliber Luger pistol during the commission of the alleged offense.
The Texas Court of Criminal Appeals, which is the Supreme Court in Texas criminal jurisprudence, ruled that the Ruger/Luger error was a fatal variance between the proof and pleading, and the trial court’s conviction could not stand.
Significantly, the court noted that the make and model of a pistol, or even the type of weapon (knife, brass knuckles, etc.) was not an essential element of the offense. So, prosecutors could omit this information, and the indictment would still pass legal muster.
Idem sonans is Latin for “sounds alike” and Legalese for “close enough.” This rule usually applies if prosecutors misspell the defendant’s name, a situation that’s increasingly common as Georgia’s population diversifies.
The general rule is that such errors are not fatal errors, even if the misspelling effectively changes the defendant’s identity (e.g. Smith and Smythe).
This issue is generally moot. Prosecutors usually have the right to amend charging instruments at any time before the jury is seated or opening statements begin. After that point, most judges will grant a motion to make a trial amendment.
Standard of Evidence in Criminal Cases
Usually, the standard of evidence in criminal cases is beyond any reasonable doubt. Georgia law’s unhelpful definition of this term is a doubt based on reason and common sense. That’s a bit like saying a red car is a car that’s red. This standard of evidence is very high, and a judge could throw a case out of court based on a lack of evidence.
Usually, a Marietta criminal defense lawyer makes a no-evidence summary judgement motion because there’s no evidence to support a critical element of a case.
Assume two vehicles collide in an intersection. The at-fault driver leaves the scene on foot. Police use the vehicle’s license plate to track down Fred, the vehicle’s owner. They arrest Fred for leaving the scene of an accident.
That evidence might hold up in civil court, because the burden of proof is lower. But it most likely won’t hold up in criminal court, especially if another person, such as Fred’s wife, son, or roommate, had access to the vehicle. His ownership doesn’t prove, beyond a reasonable doubt, that he was behind the wheel.
Once again, this issue is generally moot. If Fred admits he was driving the car, either to law enforcement investigators during interrogation or to another person in another context, maybe at a bar, that statement is probably admissible in court.
Evidence in Criminal Cases
Usually, the weight of the evidence is the central issue in a criminal case. All evidence must be reliable and accurate. Reliability relates to evidence admissibility and accuracy pertains to the weight of that evidence. Information provided by a confidential informer is a good example.
Prosecutors often heavily rely on such evidence. Usually, CIs “turn state’s evidence” in exchange for a large payment or leniency in another matter. Many people will say practically anything for money or love. So, the information that Cis provide is almost per se unreliable, unless prosecutors present some corroborating evidence.
CI testimony must also be accurate, which in the context of eyewitness evidence, usually means credible. Generally, the factfinder (judge or jury) has the excusive right to determine witness credibility. A Marietta criminal defense lawyer often uses inconsistent statements or “have you heard/did you know” questions to undermine a witness’ credibility.
If you toddler child tells inconsistent tales regarding who broke the lamp, you probably won’t believe any of them. The same thing applies to witnesses on the stand. “HYD/DYK” questions undermine the credibility of another witness (e.g. “did you know that Witness X was convicted of perjury in another matter”).
Criminal Retrials
We should address one final issue the above story presents, which is the possibility of another trial. The Constitution’s double jeopardy clause states that a person cannot be tried twice for the same crime.
The Supreme Court has created two major exceptions to this rule. One is the final judgement rule. If the judge in Linda’s DUI matter declares a mistrial, she may be forced to stand trial again, because a mistrial is not a final verdict. The other exception is the separate sovereignties exception. The alleged prosecutorial misconduct in this matter could be deprivation of rights under color of law, which is a federal offense.
One way or another, insufficient evidence cases don’t hold up in court. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
