JONESBORO, Ga. — Newly obtained documents show investigators missed a crucial piece of evidence in a deputy-involved shooting investigation.
In December of 2016, a brawl inside the Clayton County courthouse annex in Jonesboro changed the lives of retired Deputy Albert Lewis and Ben Johnson forever.
Johnson, in court for a child support hearing, was using an iPad. Lewis, recently retired from the sheriff's office, told Johnson to put it away. Strong words turned into a brawl between Lewis, Johnson and another sheriff's deputy.
Johnson was tazed once before Lewis opened fire, hitting Johnson in the rear end.
"I felt (Johnson) going for my waistband and that's when I shot him," Lewis told a Jonesboro police officer, in newly obtained body cam video.
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"At no point was (Johnson) the aggressor. At no point did he reach for his belt or try to harm the officer," said Johnson's defense attorney Gerald Griggs.
Prosecutors believed Johnson's story, at first. In May of 2018, a Grand Jury indicted Lewis for aggravated assault. But a few months later, in October, prosecutors decided to drop the charges.
"Deputy Lewis stated at the immunity hearing that he later discovered his flashlight was missing from his duty belt after the incident with Mr. Johnson," a spokesperson with the Prosecuting Attorneys' Council of Georgia told 11Alive.
Prosecutors said Lewis never told the GBI or the Grand Jury about his missing flashlight.
Lewis' defense attorney, Keith Martin, says that's not the case.
"I was sitting with him when (Lewis) told the GBI agent that his flashlight was missing," Martin said.
The GBI chose not to comment on their investigation.
Why does the missing flashlight matter?
Lewis' attorney provided enlarged images from the brawl between Johnson and the deputies showing a blurry object, which they argue was Lewis's flashlight.
The flashlight, prosecutors now believe, could have been used as a weapon against Lewis and the other deputies on scene. That's when charges were dropped.
"All the witnesses, including the defendant, agree that Mr. Johnson didn't tug at his belt and grab his flashlight," said Griggs.
Martin said the flashlight is still missing to this day.
That's because civilian courthouse employees collected all of the evidence before the GBI could arrive on scene.
"Is that a bullet case?" a Jonesboro police officer is heard asking the civilian employee in the body cam video.
That same body cam video shows the flashlight in plain sight along with other evidence collected. Yet, prosecutors argue the flashlight was never inventoried.
"There was no evidence at that time to indicate that the flashlight was from the scene, so it was not collected," prosecutors told 11Alive in a statement.
Griggs believes a civilian client wouldn't have had charges dropped against them in a similar situation.
"They would have gone to trial and they would have had to make that argument at trial and a jury would have had to determine that," Griggs said.