Defense: Jury should know Arbery was on probation when he died

Greg McMichael, a retired district attorney’s office investigator, his son Travis McMichael and neighbor William “Roddie” Bryan are scheduled to stand trial on Monday in Brunswick. Up to 1,000 prospective Glynn County jurors have been summoned for the high-profile case.

The McMichaels and Bryan are charged with malice murder, aggravated assault, false imprisonment and other charges for Arbery’s killing. The three defendants strongly contest the charges.

The incident occurred on a Sunday afternoon just outside of Brunswick. Upon seeing Arbery — who had just left an unoccupied house under construction nearby — run down his street, Greg McMichael called for his son.

The two men got their guns, jumped into Travis McMichael’s pickup truck and began pursuing Arbery. When Bryan saw them pass by, he got in his pickup and joined the chase. Bryan also took the infamous cellphone video that shows Arbery, when hemmed in by both pickups, charge at Travis McMichael, who fired three fatal shotgun blasts.

In a recently filed court motion, state prosecutors asked Superior Court Judge Timothy Walmsley to prevent the defense from introducing evidence that Arbery was on probation.

Arbery had previously pleaded guilty to two separate incidents and received sentences of probation for each one: carrying a handgun onto school property and obstruction in 2013, and attempting to shoplift a television from a Walmart in 2017.

That Arbery was on probation “is not relevant, as the defendants did not know Mr. Arbery was on probation,” lead prosecutor Linda Dunikoski wrote. It is also irrelevant to the defense’s claim that the McMichaels were justifiably conducting a citizen’s arrest of Arbery, she added.

Dunikoski also noted Walmsley previously ruled out evidence of Arbery’s past run-ins with the law because that would only lead to speculation as to why Arbery acted the way he did. The same holds true for Arbery’s probationary status, she said.

In their response, the McMichaels’ lawyers said “it is essential to due process and the pursuit of truth that the defense not be prohibited from presenting all the facts that defeat that narrative of ‘guilty racist killers.’”

While someone not on probation may not have been concerned about answering questions about possible break-ins, someone on active probation “would be incredibly fearful of the ramifications of police interaction” after unlawfully entering a home under construction, the defense said.

The defense attorneys have contended the McMichaels and Bryan wanted to detain Arbery by making a citizen’s arrest and waiting for police to arrive. They also say Travis McMichael was acting in self-defense when he shot and killed Arbery.

The defense attorneys said they need to rebut the prosecution’s contention that the physically exhausted Arbery made a “last-ditch effort to save himself from being shot in the back by Travis McMichael by bravely charging him in an attempt to remove the shotgun from his hands and thereby save his life.”

That is why evidence of Arbery being on probation is necessary, their motion states. “It provides background and puts the events of that day in context, relative to the theory of the defense.”

Numerous court motions have been filed in the weeks leading up to the trial, and Walmsley has issued some important rulings.

This week, the judge denied a defense motion filed by the McMichaels’ lawyers to prevent the prosecution from letting the jury hear recorded phone calls the McMichaels made from the jail.

In one call, Greg McMichael says of the situation he’s in, “You’ve heard the saying that no good deed goes unpunished?”

In a separate ruling, Walmsley also imposed a limited gag order on prosecutors and defense attorneys, ordering them not to comment on: evidence already ruled inadmissible, evidence ruled inadmissible at trial, and evidence lawyers should reasonably know will be ruled inadmissible at trial.