Arbery murder trial begins Monday amid a burning question

The McMichaels, both armed and riding in a pickup truck, began chasing Arbery as he ran through their neighborhood after leaving a house nearby that was under construction. The McMichaels contend they were relying on Georgia’s then-existing citizen’s arrest law. They claim it allowed them to detain Arbery because they had “reasonable and probable grounds of suspicion” that he was fleeing a scene where a felony had been committed.

Bryan, a neighbor, soon joined the chase in his own pickup truck and took the infamous cellphone video of the final moments of Arbery’s life. When the two pickups hemmed in Arbery, he charged at Travis McMichael and was fatally shot three times as he tried to take McMichael’s shotgun away from him.

The killing sparked cries of racist vigilantism by the McMichaels and Bryan, who are white. Pushing back, lawyers for the three defendants have said their clients pursued Arbery not because he was Black but because they believed he had been breaking into houses in the Satilla Shores neighborhood.

Prosecutors have noted that Arbery was carrying nothing when he was killed. At a pretrial hearing, lead GBI agent Richard Dial testified that he believed Arbery had run until he could not run anymore and turned on Travis McMichael in self-defense instead of turning his back on a man with a shotgun.

At that same hearing, Dial testified that Bryan had told agents in an interview that Travis McMichael, as he stood over the dying Arbery, uttered, “F-ing n-word.” McMichael’s lawyers have said Bryan made up that story.

In the wake of the fatal shooting, the Georgia General Assembly passed a state hate crimes law and its sponsors cited what happened to Arbery as the reason why.

The Legislature didn’t stop there. Early this year, again citing Arbery’s killing, lawmakers repealed the law enabling private citizens to make arrests. With Arbery’s mother, Wanda Cooper, seated nearby, Gov. Brian Kemp signed the new legislation and said, “Today, in honor of Ahmaud’s memory, we commit to taking this step forward together.”

Credit: Steve Schaefer

Credit: Steve Schaefer

James Woodall, former head of the Georgia NAACP, said a continuous spotlight on the case by Arbery’s family and state and local organizers contributed to charges finally being brought more than two months after Arbery was killed.

“They didn’t let up on behalf of Ahmaud,” said Woodall, now the Southern Center for Human Rights’ public policy associate. “The folks in Brunswick and across the state were persistent in their call for justice. In this case, it helped bring change and accountability.”

There was also the May 5, 2020, release of Bryan’s graphic cellphone video. It seized worldwide attention, galvanized state authorities to act, and resulted in the McMichaels’ arrest two days later.

The case is being prosecuted by the Cobb County district attorney’s office, the fourth such office to have the case after three prior DAs withdrew from it. In September, the first DA on the case, former Glynn County District Attorney Jackie Johnson, was indicted for how she handled the case.

Johnson, who lost her reelection bid, is accused of violating her oath of office for showing “favor and affection” to Greg McMichael, who had worked as an investigator for her for years. She is also charged with obstruction for telling two police officers not to arrest Travis McMichael after the shooting.

Pretrial decisions

So far, prosecutors have won almost every important pretrial decision by Superior Court Judge Timothy Walmsley. Last year, he denied bond to the McMichaels and Bryan, leaving them in custody.

More recently, Walmsley dealt two blows to the defense. He denied their request to admit evidence of Arbery’s past run-ins with the law, including two prior convictions and some aggressive confrontations with local police. Walmsley also ruled as inadmissible evidence of Arbery’s mental illness that defense attorneys say gave Arbery delusions commanding him to rob and hurt people.

Defense attorneys contended this evidence would explain to the jury why Arbery ran from the McMichaels when first confronted by them and explain why he charged at the shotgun-wielding Travis McMichael. But prosecutors successfully argued that the three defendants knew nothing about Arbery’s past, so this could not have influenced their behavior. Walmsley agreed.

The jurors’ worldview

Depending on what evidence is allowed before the jury, the trial might have both sides trying to answer a complicated but central question: How do you prove someone is a racist or, conversely, how do you prove someone isn’t?

The lawyers representing the McMichaels have asked Walmsley to prohibit photos of a vanity license plate of the old Georgia state flag on the front of Travis McMichael’s pickup truck at the time of the shooting. Georgia’s prior flag, flown from 1956 through 2001, prominently featured the Confederate battle emblem.

By introducing the vanity plate as evidence, prosecutors hope to show jurors that race played a key factor in the McMichaels’ decision to chase Arbery. And by trying to keep it out, defense attorneys for the father and son are trying to make it tougher for prosecutors to establish racial bias, said Ashleigh Merchant, a Marietta defense attorney closely following the case.

“We all know that the trial is going to be an issue of whether or not these folks were racist,” she said.

Against the backdrop of last year’s racial justice movement and the nation’s deepening political divide, the worldview of the prospective jurors will undoubtedly shape the outcome of the trial, experts say.

The racial composition of the jury that is finally seated will also be closely scrutinized. (In 2019, the U.S. Census Bureau estimated Glynn County’s population to be 69% white and 26% Black.)

Denise de La Rue, who has been a jury consultant in some of the nation’s most high-profile cases, said attorneys on both sides will be hard-pressed finding jurors who aren’t familiar with the case.

“I would not trust a juror who came in, in Glynn County, and said, ‘I’m not familiar with this case,’” she said. “They’re either not being truthful or living in a cave.”

And because public opinion about the shooting is so divided in the coastal Georgia community, de La Rue thinks it may be extremely difficult to get all 12 people in the jury box to arrive at unanimity.

“This case comes with so many layers, more than most,” she said. “And the most important people for the defense to get rid of are the people who’ve heard about the case and read about the case and have a very strong opinion about it. They are already leaning very strongly in their belief that this was a racially motivated, unjustified act.”

A good litmus test for attorneys on both sides, she said, would be to ask prospective jurors which bumper stickers they have on their cars.

“I think the defense would want those jurors with a Confederate flag on their bumper,” she said. “And I think the prosecution would want those jurors with a Black Lives Matter bumper sticker. I think a lot of it is going to come down to how people see the world.”

Merchant agreed, saying the prosecution typically wants law-and-order types on the jury. But in this case, the state may be looking for jurors who frown on stand-your-ground and gun rights laws, she said.

Conversely, the defense will be looking for jurors who support “Second Amendment rights, who are anti-vaccine or think COVID is a hoax,” Merchant said. “Those are the types of people that I think the defense wants in this case, which is very rare.”

Trying to choose a jury pool that all sides agree on could take two weeks or longer. And even then, all it takes is one holdout to have the case end in a mistrial.

“I think of any case I’ve worked on, this has a higher chance of a hung jury than I’ve ever seen,” said de La Rue. “I think you may get jurors in there that see it one way or another and dig in. I think it’s stronger in this case than in any case I’ve ever seen.”