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Arbery trial

Background

The trial of three men for the killing of Ahmaud Arbery is set to wrap up with closing arguments today. Gregory McMichael, Travis McMichael, and William “Roddie” Bryan Jr.—all white—are charged with malice murder, felony murder, aggravated assault, false imprisonment, and criminal attempt to commit false imprisonment related to the deadly 2020 confrontation with Arbery, a Black man, in Georgia.

The facts: On Feb. 23, 2020, the McMichaels chased after Arbery in their truck, Travis armed with a shotgun and Gregory armed with a pistol. Bryan followed in his own vehicle. The trio was allegedly concerned that Arbery was looking to rob houses in the neighborhood, though Arbery’s family said he was just out for a jog when he was “ambushed.” The pursuit ultimately ended with Travis shooting Arbery three times, killing him. Cell phone video taken by Bryan was later published online.

The case was a mess from the start, going through four different prosecutor’s offices. First, the Brunswick District Attorney’s Office allegedly advised the Glynn County Police Department not to make any arrests. Gregory McMichael previously worked for the DA, Jackie Johnson.

Commissioner Allen Booker said: “The police at the scene went to her, saying they were ready to arrest both of them. These were the police at the scene who had done the investigation. She shut them down to protect her friend [Gregory] McMichael.” Commissioner Peter Murphy said that officers who responded at the scene had concluded that there was probable cause to make an arrest, but when they contacted Johnson’s office, they “were told not to make the arrest.”

Days later, Johnson recused herself and the case was transferred to Waycross Judicial Circuit District Attorney George Barnhill. Without disclosing it at the time, Barnhill had previously advised Glynn County police that the killing of Arbery “was justifiable homicide.” Barnhill’s office had control over the case for nearly two months. He cited Georgia’s Civil War-era citizen arrest law as reason not to charge the McMichaels and Bryan:

In a letter to the Glynn County Police Department, Mr. Barnhill… wrote that the men were in “hot pursuit” of Mr. Arbery, and that they had “solid first-hand probable cause” that he was a “burglary suspect.” There is no evidence that Mr. Arbery had committed a burglary, and he was not armed when he was chased down.

Barnhill recused himself in April 2020 after he admitted to learning “3-4 weeks ago” that his son has previously prosecuted Arbery.

The case was then turned over to Atlantic Judicial Circuit District Attorney Tom Durden. A month into his handling of the case, video of the shooting taken by Bryan was released to the media. Durden announced hours later that he’d bring the case before a grand jury and accepted the Georgia Bureau of Investigation’s (GBI) assistance.

The GBI arrested and chared the McMichaels in less than two days, 74 days after Arbery’s death. Durden requested that the case be reassigned to a prosecutor with a larger staff, leading Cobb County DA Joyette Holmes to take it on. Her office has maintained oversight since then.

The jury

The trial was assigned to Chatham County Superior Court Judge Timothy Walmsley, who was appointed in 2012 by then-Gov. Nathan Deal (R). After a long jury selection process, a panel of 12 people was chosen — one Black member and 11 White members. The prosecution accused the defense of being discriminatory in striking qualified Black jurors. Walmsley agreed, but allowed the trial to advance:

“This court has found that there appears to be intentional discrimination…all the defense needs to do is provide that legitimate, nondiscriminatory, clear, reasonably specific and related reason,” for why they struck a juror and he said the defense met that burden.

The defense attorneys nevertheless complained about the lack of “Bubba” men on the jury:

“It would appear that White males born in the South, over 40 years of age, without four-year college degrees, sometimes euphemistically known as ‘Bubba’ or ‘Joe Six Pack,’ seem to be significantly underrepresented,” defense attorney Kevin Gough, who represents Bryan, told the court Friday.

“Without meaning to be stereotypical in any way, I do think there is a real question in this case whether that demographic is underrepresented in this jury pool,” Gough added. “And if it is, then we have a problem with that.”

Brunswick, where Arbery was killed, is 40% White and 55% Black. Chatham County, where the trial is being held, is 53% White and 41% Black.

The prosecution

The witnesses called by the prosecution largely constituted law enforcement officials who testified about what the McMichaels and Bryan said about the shooting immediately after the face.

Georgia Bureau of Investigation Agent Jason Seacrist testified that Bryan joined in on chasing Arbery because he seemed suspicious (clip):

Bryan: I figured he had done something wrong, I didn’t know for sure.

Seacrist: What made you think he might have done something wrong?

Bryan: It was just instinct, man. I don’t know.

Officer Roderic Nohilly testified that the elder McMichael said Arbery was “trapped like a rat” (clip):

Prosecutor: So when asking Gregory McMichael to speculate about what’s going through the mind of Ahmaud Arbery, what does Greg McMichael say, on lines three through six?

Officer: He—he was trapped like a rat. I think he was wanting to flee and he realized that something, you know, he was not going to get away.

While being interviewed at the scene after the shooting, Greg McMichael called Arbery “an asshole” (clip):

Prosecutor: What did Greg McMichael say next?

Officer Jeff Brandeberry: Yeah no, this is not—this ain’t no shuffler. This guy’s an asshole…

Prosecutor: How far away were you from the dead body of Ahmaud Arbery when he called him an asshole?

Officer: 20-30 feet maybe.

Brandeberry also told the jury that Greg McMichael never referenced any burglary or theft to justify the shooting (clip):

Prosecutor: While speaking with you, did Greg McMichael ever use the word “burglary”?

Officer: No, ma’am.

Prosecutor: Did he ever use the word “trespass”?

Officer: No, ma’am.

Prosecutor: Did he ever tell you while you’re talking to him that he was attempting to make a citizen’s arrest?

Officer: No, ma’am.

The defense

Whereas the prosecution painted a picture of Arbery “under attack” by three White men, two armed with guns, the defense relied on the “citizen’s arrest” premise formulated early in the case (clip 1 and clip 2).

Defense Attorney Robert Rubin: They’re there to detain Ahmaud Arbery for the police. This is what the law allows. A private person may arrest an offender if the offense is committed in his presence or [within] his immediate knowledge. That applies to felonies or misdemeanors. But there’s a second sentence that the prosecution didn’t tell you about. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion. That’s why Travis McMichael and Greg McMichael sought to detain Ahmaud Arbery…

Rubin: At the time the shots are fired, Travis McMichaels reasonably believes—because Ahmaud Arbery is on him, aggressively, swinging widely, grabbing ahold of him, grabbing ahold of the gun—reasonably believes he is justified in firing his weapon…

The main witness for the defense was Travis McMichael himself. He testified that he had to shoot Arbery to protect himself (clip):

Defense Attorney: When he runs up the right side of the truck what are you thinking?

McMichael: After I point the shotgun at him, when he angles and then he turns and starts making it directly to the truck, I’m thinking well he’s gonna…he’s coming back to the truck again. my father’s in the back of the vehicle.

Defense Attorney: So? So what your dad’s in the back of the vehicle…So?

McMichael: Yeah so he’s, the path he’s making he’s going to make contact with the vehicle. Gonna be on the vehicle, he can jump up, grab dad, or—still under the impression that he might be armed—he could run up and shoot.

break

McMichael: I get to the front of the truck and by the time I get the front truck, he is at the front corner panel, on the right-hand side. and he turns and is on me…and is on me, I mean in a flash. I mean he’s immediately on me.

Defense Attorney: On you, doing what?

McMichael: He grabs the shotgun and I believe I was struck on that first instance that we made contact.

Defense Attorney: What were you thinking at that moment?

McMichael: I was thinking of my son. It sounds weird but that was the first thing that hit me.

Defense Attorney: What did you do?

McMichael: I shot.

Defense Attorney: Why?

McMichael: He had my gun. He struck me. It was obvious that he was attacking me. That if he would have got this shotgun from me then it was a life or death situation and I’m gonna have to stop him from doing this. So I shot.

Defense Attorney: Did he stop when you shot?

McMichael: He did not.

Under cross-examination, Travis McMichael admitted that Arbery did not display any threatening behavior when the trio was pursuing him (clip):

Prosecutor: You just knew that he was the guy who was on video at the open unsecured construction site?

McMichael: That I saw on the 11th.

Prosecutor: And at this point in time when you first see him on Buford [Road], he’s not reaching into his pockets?

McMichael: No, ma’am, not running, no ma’am.

Prosecutor: And he never yelled at you guys, never threatened you at all?

McMichael: No, ma’am.

Prosecutor: Never brandished any weapons?

McMichael: He did not threaten me verbally.

Prosecutor: Didn’t brandish any weapons?

McMichael: Uh, no ma’am.

Prosecutor: Didn’t pull out any guns?

McMichael: No, ma’am.

Prosecutor: Didn’t pull out a knife?

McMichael: No, ma’am.

Prosecutor: Never reached for anything, did he?

McMichael: No.

Prosecutor: He just ran.

McMichael: Yes, he was just running.

Jury instructions

Judge Walmsley [ruled] yesterday that the jury instructions will say that under Georgia’s citizen’s arrest law, the arrest would have to occur right after a felony crime occurred. The defense has argued that the McMichaels and Bryan were attempting to arrest Arbery for suspicion of robbery roughly a week earlier.

“If you are going to instruct the jury as you say, you are directing a verdict for the state,” said Bob Rubin, attorney for Travis McMichael.

…the defense attorneys were livid over the jury instructions Judge Timothy Walmsley plans to give next week.

“We have built this whole case around the probable cause and you are gutting all of it if you give this particular charge,” Rubin said.

Black pastors

The defense attorney for Roddie Bryan, the man who followed the McMichaels’ truck, made headlines for objecting to the presence of nationally recognized civil rights leaders in the courtroom (clip):

If we’re going to start a precedent, starting yesterday, where we’re going to bring high-profile members of the African American community into the courtroom to sit with the family during the trial in the presence of the jury, I believe that’s intimidating and it’s an attempt to pressure — could be consciously or unconsciously — an attempt to pressure or influence the jury… We don’t want any more Black pastors coming in here or other—Jesse Jackson, whoever was in was in here earlier this week—sitting with the victim’s family, trying to influence the jury in this case.

Judge Walmsley responded that he would not “blanketly exclude members of the public” from the courtroom.

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Unite the Right

The civil trial involving the organizers of the 2017 “Unite the Right” rally is also wrapping up, with closing statements made on Thursday.

Background: On August 11 and 12, 2017, far-right groups held a white supremacist rally in Charlottesville, Virginia. Attendees carried Nazi flags, Confederate flags, Deauz Vult crosses, and chanted racist slogans. The event came to an end when James Fields rammed his car into a crowd of counter-protestors, killing Heather Heyer and injuring 35 others. He was sentenced to life in prison.

Nine Charlottesville residents—including some injured during the rally—filed suit against 24 organizers and participants. Most prominently, lead organizer and Neo-Nazi Jason Kessler, Neo-Nazi Richard Spencer, the “Crying Nazi” Christopher Cantwell, and numerous white supremacist groups like Identity Evropa and the League of the South are named as defendants.

The Charlottesville residents alleged that the defendants violated the 1871 Ku Klux Klan Act by conspiring to engage in violence against racial minorities and their supporters. The rally organizers contend, in contrast, that they were engaged in lawful political protest protected by the First Amendment.

Jury selection

Narrowing down the pool of potential jurors was an arduous process focused on race, the right to protest, and views of Antifa.

Before prospective jurors arrived in court, they were asked to fill out a 16-page questionnaire with 73 questions submitted by both sides, including, “Are you familiar with ‘Antifa’?… If yes, how would you describe Antifa?” and “If yes, how would you rate your overall opinion on Antifa?” Jurors had the choice of choosing between extremely favorable, somewhat favorable, neutral/neither favorable nor unfavorable, somewhat unfavorable, and extremely unfavorable to the second part of the question.

Other questions focused on jurors’ familiarity with the Black Lives Matter movement, level of concern about race relations, and their opinion on the removal of statues of Confederate leaders. Charlottesville took down its statue of Civil War General Robert E. Lee in July.

Two of the white nationalists, Cantwell and Fraternal Order of the Alt Knights (a Proud Boys subsect) Kyle Chapman, opted to defend themselves pro se in the trial. Cantwell argued in favor of potential jurors who described Antifa as troublemakers, saying that “is hardly an extreme view.”

Note: I have not seen a news article detailing the composition of the final jury. Please share if you know of one, thanks!

Trial

The trial, which was not televised, was observed by a handful of journalists in the courtroom.

Lead attorney Karen Dunn, representing the plaintiffs, began with videos of the events in question.

“Our case is about the planning, execution, and celebration of racially motivated violence,” Dunn told the jury. “Many of the defendants wanted to build a white ethnostate—a country only for white people. And that could only occur after a violent race war.”

She read to the jury online statements made by the defendants planning the rally:

“We need a new way to tip off antifa when we want them to show up somewhere,” read one message that Kessler wrote to other white nationalists. “We definitely want to play these people into our hands Saturday in Charlottesville.”

In that same online discussion, Kessler spoke about the need to hide weapons while in public and his expectation that at least some attendees would be packing firearms. “Can you guys conceal carry? I don’t want to scare antifa off from throwing the first punch. Big scary guns…will keep Antifa away. I want them to start something,” Kessler wrote. “Lots of armed military vets in attendance so we aren’t going to be lacking for firepower.”

The professional defense lawyers used their opening statement to obfuscate who really was responsible for the violence at the rally:

“These antifa and antifascists are a big part of this case. Why is antifa a big part of this case? Because they don’t like Jason Kessler, they don’t like what they call fascists or nazis. OK, nobody likes fascists or nazis. But whether they’re likable people is not legally relevant.”

Richard Spencer told the jury that he wasn’t responsible for inciting the deadly violence and his attendance was simply protected speech:

Spencer told jurors that this wasn’t about deciding to land “on the side of the angels, or on the side of the devil incarnate, bad old Richard Spencer and his Nazis.”

“This case is ultimately not about the scattered and often stupid ramblings of the alt-right,” said Spencer. “This case is about something very difficult in society….To defend someone you vehemently disagree with. Someone you find reprehensible.”

Meanwhile, Cantwell tried to claim that he didn’t know any of his codefendants, something the prosecution easily proved incorrect using phone and Discord messages.

Cantwell agrees Spencer has been a guest on his show several times. Bloch shows an August 5, 2017 text where Cantwell asked Spencer about getting lunch “with some Radical Agenda listeners.”

[Prosecutor]: You continued to communicate with Mr. Kessler throughout the summer about Unite The Right… you communicated with him on Facebook… you texted with him throughout the summer…

Cantwell: Yes

Prosecutor: On July 8, Mr. Kessler texted you “be ready for Charlottesville… it’s gonna be a shitshow”…

Cantwell agrees he promoted Unite The Right on his podcast and website, got lunch with Kessler in July to discuss the rally.

As Judge Norman Moon pointed out, the defendants do not need to know each other in order to commit conspiracy:

“How this looks from the standpoint of the law is that in the days leading up to ‘Unite the Right’ you exchanged text messages with defendant Spencer in which you stated, ‘I’m willing to risk a lot for our cause, including violence and incarceration. Many in my audience would follow me there, but I want to coordinate and make sure it’s worth it for our cause,’” Moon told the defendants, reading their own messages to each other back to them in court. “Then Mr. Spencer responded, ‘It’s worth it, at least to me.’”

That exchange alone, Moon said, could be enough for a jury to reasonably decide whether the men conspired to commit racially motivated violence. But he presented several other examples of the men speaking with each other about their plans to commit acts of violence in Charlottesville four years ago, including Cantwell discussing the several firearms he had brought with him to the rally.

“You don’t have to do very much. You just get in there, be there, go along with it, support it. You’re part of the conspiracy,” Moon told them. “You have a misunderstanding, I’m afraid, of what conspiracy is. It’s a long instruction, but I read it several times [in court].”