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Fulton County judge throws out indictment against jailers accused in inmate's 2018 death

A new indictment is still possible, according to the judge.

ATLANTA — A Fulton County judge has voided an indictment against six jailers accused in an inmate's 2018 death. However, he said there is still room for the deputies to face charges -- if state law is followed.

Court records filed Monday show Fulton County Judge Robert C.I. McBurney quashed the indictment against the six deputies originally facing murder charges in the death of Antonio May.

McBurney quashed the indictment stemming from a use of force investigation against deputies Arron Cook, Guito Dela Cruz, Omar Jackson, Jason Roache, Kenesia Strowder and William Whitaker on the basis that prosecutors failed to comply with state law when pressing charges against the law enforcement officers. 

Under a state statute, prosecutors should have provided the deputies notice of the indictment and were required to give the deputies an opportunity to testify before a grand jury.

"Here, it is undisputed that the State did not provide any such notice or opportunity to be heard to any of the six Defendants in this case," McBurney ruled. "Nor is it disputed that the alleged crimes occurred while Defendants were performing their duties as detention officers at the Fulton County Jail."

May, who was 32 at the time, was arrested in September 2018 on a misdemeanor trespassing charge after authorities said he was throwing rocks at the American Cancer Society building in Atlanta. According to a 2019 lawsuit filed by May's family, he was having a mental health crisis while on amphetamines. He was taken to Grady Hospital for medical clearance after his arrest where he was diagnosed with substance abuse psychotic disorder and then booked into the Fulton County Jail.

His family never saw him alive again.

Credit: Provided
Antonio May

According to a report from the Fulton County Medical Examiner’s Office, May, who tested positive for ecstasy, was seen inside the holding cell by a deputy naked and pleasuring himself. The report said six deputies assembled before May was ordered to put his hands behind his back -- but he reportedly refused. The Georgia Bureau of Investigation said May started fighting with jail staff. 

Deputies used a Taser on May and attorneys in 2019 said witnesses reported guards "beat him with their fists and continuously sprayed a water hose in his face." The inmate died on the scene "in a pool of his own blood," according to the legal team.

Earlier this year, the jailers waived their arraignment and have been out on bond. 

"We are very gratified that he affirmed that our position was legally and factually correct," Amanda Clarke Palmer, attorney for Jason Roache said. "At the very beginning of this case, I told the State they needed to give my client a chance to tell his story to the grand jury and they didn't let him do that. So they deprived the grand jury from hearing all the facts. They're required to do it under the law and now they see what the consequences are."

In his filing, McBurney noted confusion about which law enforcement officers may fall under the state's definition of a peace officer. Ultimately, he ruled all six jailers, in this case, fall under the state's meaning as outlined by aspects of Georgia law - details the Fulton County District Attorney's Office intends to dispute.

“The special privilege to appear before a grand jury is not provided to jailers by Georgia law," District Attorney Fani Willis said in a statement. "All six defendants were jailers at the time of the incident. As such, we plan to file a motion for reconsideration, and if necessary, appeal the order.”

In his order to quash the indictment, McBurney said the court will not be reviewing or considering new motions filed in this case - but said prosecutors can get a new indictment and follow the procedures that kept this one from advancing in court.

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