Fulton DA must re-indict jailers in detainee’s death, judge rules

Credit: Submitted photo

Credit: Submitted photo

Prosecutors plan to challenge decision

A Fulton County judge has doubled down on his earlier decision to toss the indictment of six current and former detention officers who were charged with murder in the September 2018 death of a jail detainee.

The jailers were also charged with aggravated assault, battery and violation of oath of office after Antonio May died. The 32-year-old father of three from Macon had been tased, beaten and pepper sprayed in the Fulton County jail, according to a wrongful death lawsuit filed by the family in federal court.

In November, Fulton Superior Court Judge Robert McBurney ruled the defendants should have been allowed to appear before the grand jury as state law requires for current and former peace officers accused of committing crimes during the performance of their official duties.

The DA’s office challenged that decision in a motion to reconsider, arguing the jailers were not peace officers and therefore not entitled to appear before the grand jury.

“The special privilege to appear before a grand jury is not provided to jailers by Georgia law,” Fulton District Attorney Fani Willis said after McBurney’s November ruling. “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.”

ExploreJudge tosses indictment against Fulton officers in jail death

On Thursday, McBurney reaffirmed his earlier ruling, saying the Fulton jailers were, in fact, POST-certified. As sworn peace officers, the six jailers should have been notified of the DA’s decision to present the the indictment since their crimes were allegedly committed while performing their official duties, he said.

“They were similarly entitled to appear before the grand jury as it considered the state’s presentment,” McBurney wrote. “Because none of this occurred, the present indictment remains quashed.”

A spokesman for Willis said the DA’s office will challenge the judge’s ruling.

The November 2021 indictment charged Arron Cook, Guito Dela Cruz, Omar Jackson, Jason Roache, Kenesia Strowder and William Whitaker with murder and other crimes. All six pleaded not guilty to their initial charges.

ExploreGrand jury indicts six deputies following death of Fulton jail detainee

Amanda Clark Palmer, who represents Roache, believes McBurney made the correct decision.

“It was my position from the beginning that the state needed to invite my client and the other defendants to the grand jury,” she said Friday. “I was always puzzled why they didn’t do it — even if they thought they were legally correct.”

Roache, she said, simply came to the aid of his colleagues after their initial encounter with May.

“That’s why I was so shocked when he got charged with murder,” Palmer said. “He was doing what he’s supposed to do as part of the response team. When you get called in to assist another officer, that’s what you do.”

Roache is still employed by the sheriff’s office.

May died from “sudden cardiovascular collapse from probable excited delirium with physical restraint use, while under the influence of methamphetamine,” according to a Fulton County Medical Examiner autopsy report. The report also mentions he was tased and pepper sprayed but says the role of these actions in his death is unclear.

A forensic pathologist hired by May’s family wrote a separate report, saying the “physical restraints and other measures utilized by the officers were to a reasonable degree of medical certainty the cause of his death.

“Utilization of these measures by jail personnel clearly exacerbated an already existing medical condition, characterized by mental illness and drug use that was unaddressed during this period of incarceration,” wrote Dr. William Anderson of Orlando-based Forensic Dimensions.

ExploreFulton deputies plead not guilty to murder in detainee's 2018 death

May was arrested and taken to the Fulton jail after he was accused of throwing rocks at the windows of a downtown Atlanta building. His family’s wrongful death lawsuit says the jail’s medical provider noted that May tested positive for amphetamines and that he was suicidal.

The suit also says that after May allegedly exposed himself while in a holding cell, six jail deputies tased, beat and pepper sprayed him. May was then placed in a restraining chair with a spit mask on his face before he was led to a shower. The deputies later put a water hose to his face — while he was restrained in the chair — to flush away some remaining pepper spray, according to the complaint. May died minutes later.