Defense pushes to admit testimony about Arbery’s past, mental state

Not guilty pleas today for the three men accused of killing Ahmaud Arbery while he jogged in Brunswick
Not guilty pleas today for the three men accused of killing Ahmaud Arbery while he jogged in Brunswick

Prosecution condemns the tactic as victim blaming, questions relevance

As he chased an armed Ahmaud Arbery, a Glynn County schools police officer testified Wednesday, he locked eyes with the recent high school graduate. The cop, Rodney Ellis, said he had but one thought in his head.

“Lord, please don’t let me have to shoot this man,” said Ellis, chief of police for Glynn schools.

Ellis was among several witnesses called by the defense Wednesday in a hearing to determine the admissibility of Arbery’s past confrontations with law enforcement, family members and others. Two of those incidents led him to plead guilty to felony charges.

The defense also seeks to include testimony about Arbery’s mental illness, saying it helps explain his actions on the day he was killed.

“What we have learned is that Mr. Arbery had a pattern of conduct and behavior, had a pattern of other acts that included theft crimes or attempted burglary crimes,” said defense attorney Jason Sheffield, co-counsel for Travis McMichael, who’s facing a murder charge, as is his father Greg McMichael and neighbor William “Roddie” Bryan.

When confronted by people “who appeared to have some authority … his response to that is to get angry and aggressive, physically and verbally,” Sheffield said.

Ellis encountered Arbery in December 2013, testifying that Arbery brought a gun to a high school basketball game. He eventually was handcuffed at gunpoint after running away from officers on two occasions, Ellis said. Arbery ultimately pleaded guilty and was sentenced to five years’ probation for carrying a gun on school property and one year of probation for obstruction.

The state objected to the testimony, arguing it’s irrelevant and serves only to smear the victim. It also helps obscure a lingering contradiction in the defense’s case, lead prosecutor Linda Dunikoski said.

“First off, in a self-defense case you cannot start it if you’re the first aggressor,” said Dunikoski, who supplanted Jesse Evans in the lead prosecutor after Evans resigned from the Cobb County district attorney’s office, which was assigned the case by the state.

“You cannot go ahead and murder somebody,” she said. “You can’t claim self-defense if you started it.”

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On Feb. 23, 2020, retired Brunswick district attorney’s office investigator Greg McMichael told police he saw Arbery running down the street in front of his house. McMichael called inside to his son Travis McMichael and the two men jumped into a pickup truck in pursuit of Arbery. Bryan, who lived nearby, joined in the chase and at one point tried to block Arbery with his pickup.

After a chase through the Satilla Shores neighborhood, where the defendants lived, Arbery was cornered. Travis McMichael got out of his truck with his Remington shotgun trained on Arbery. In what the state called a “fight or flight” response, Arbery lunged at Travis McMichael, who then fired three shots, killing the unarmed Arbery.

The McMichaels, who are white, told police they believed Arbery, a Black man, was responsible for a string of break-ins in their neighborhood and were making a citizen’s arrest, since outlawed by the Georgia General Assembly.

Sheffield said that introducing the testimony about past acts, and the response to them, allows jurors to see “what was going on with Ahmaud Arbery that day.”

The state has filed a response seeking to keep out any previous violent acts by Arbery. The defendants couldn’t have known about Arbery’s past misdeeds, Dunikoski said.

“If you’re going to take the law in your own hands, you better know the law,” she said.

She also wants to block any evidence about Arbery’s schizoaffective disorder and the defense’s claims that the McMichaels weren’t the actual aggressors.

“Travis McMichael is pointing a shotgun at Ahmaud Arbery,” Dunikoski said. “Ahmaud Arbery is the one in fear for his life.”

Sheffield countered that Arbery’s mental illness “caused him to do and say and behave in very particularized ways.” The defense added that Arbery’s disorder wasn’t being treated. “It is possible that the mental illness he suffers from contributed to his actions that day,” Sheffield said.

Dunikoski said the defense’s move is a cynical attempt to blame the victim for his own death. She also questioned “the quality of (Arbery’s) diagnosis,” noting he was diagnosed by a registered nurse following a two-hour assessment.

“It’s clearly an effort to go ahead and say, ‘Mr. Arbery wasn’t right, he had some mental issues and therefore it was his fault they had to kill him,’” the prosecutor said. “How do you prove it?”

The hearing continues Thursday. With COVID-19 restrictions lapsing, the defendants were able to appear in the courtroom for the first time. The three are being held without bond at the Glynn County jail.

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