Howard told The Atlanta Journal-Constitution in a statement on Friday that his office can’t proceed with the case because “we will not have access to critical evidence collected by the FBI needed to prosecute Barnes” on the state charges.
Barnes was arrested in November and charged with felony counts of making terroristic threats and criminal damage to property in the second degree. The 2015 incident included a brick throw through Mitchell's window with the words "Shut Up" and "ER Keep Your Mouth Shut" written on it.
Bob Page, a spokesman for the U.S. Attorney’s Office in Atlanta, declined to comment or answer any of the AJC’s questions on Friday.
Ted Salter, Barnes’ attorney in the state case, said it is unusual for U.S. Attorney’s Office to not share evidence with local prosecutors. He said no federal agents have contacted him about Barnes, who is still incarcerated in for a parole violation stemming from the state charges. Barnes has not been charged in the federal investigation.
Salter said he has petitioned the Georgia Board of Pardons and Parole for Barnes’ release since the charges have been dropped, and is awaiting a response.
Earlier this month, Salter asked the court to suppress evidence in the case, including a purported taped confession. During that hearing and in exhibits attached to a court filing, Salter said that prosecutors have admitted "a significant portion of its file is missing" and that the confession may have been lost.
“They‘re talking about a recording,” Salter said in a Friday interview with the AJC. “First they said it’s been lost, then they turn around and say it’s part of the federal investigation and they’re not going to give it to the DA’s office.
“That leaves the state with no evidence.”
Now Salter said he is working to get Barnes released from prison.
Barnes’ parole for a prior conviction was revoked and he is currently incarcerated in Jackson. Salter speculated that federal agents may want Barnes to remain in prison as a way to gain his cooperation.
Salter said he has not been contacted by anyone at the FBI or the U.S. Attorney’s Office.
“There is no justification for him remaining in prison” now that the state charges have been dropped, Salter said. “It doesn’t make sense to me why the feds are so interested in my client, because it’s my belief that his testimony is not going to help their star witness, E.R. Mitchell, at all.”
Elvin “E.R.” Mitchell Jr., pleaded guilty to conspiracy to commit bribery and launder money in January. He has admitted to paying more than $1 million for city contracts. A brick was thrown through Mitchell’s window with the words “Shut Up” and “ER Keep Your Mouth Shut” scrawled on it.
The bribery case involving Mitchell is a federal matter, but the alleged act of vandalism was brought in Fulton County Superior Court. Mitchell told police officers at the time of the brick incident he was working with federal authorities on a case.
Barnes once worked for a former executive at one of Mitchell's companies. That executive, Mitzi Bickers, is a reverend and political consultant who played a key role in Mayor Kasim Reed's 2009 election and served in Reed's administration from 2010 to 2013.
Federal prosecutors have subpoenaed records related to her from the city of Atlanta and Clayton County, where she now works as a chaplain for Clayton Sheriff Victor Hill.
Police records from Barnes’ arrest said he confessed to the brick incident and that the confession was recorded by the FBI. As part of his attempt to suppress evidence, Salter included emails he sent to Fulton prosecutors seeking the purported confession and other evidence, including victim statements, cellphone records and recorded conversations between Barnes and Mitchell.
But Salter said he never received the purported confession tape.