Gregory McMichael, left, and his son Travis McMichael. The two have been charged with murder in the February shooting death of Ahmaud Arbery, whom they had pursued in a truck after spotting him running in their neighborhood. (Glynn County Detention Center via AP)

In Arbery killing and in general, hate-crimes cases difficult to prove

While the shooting death of an unarmed black man by a white father and son in Brunswick has reignited the call for Georgia to join 46 other states by passing a hate-crimes law, proving the killing was motivated by hate would be an uphill battle, legal experts say.

Greg and Travis McMichael, 64 and 34, told police they believed Ahmaud Arbery was a burglary suspect when they saw him running through their Satilla Shores neighborhood near Brunswick in February, according to police.

The McMichaels grabbed a shotgun and a handgun, got into their truck, and followed and confronted Arbery before the younger McMichael shot him. Arbery, 25, died at the scene. Arbery’s family says he was out jogging when he was confronted and shot. The McMichaels have been charged with murder and aggravated assault.

Local politicians and national celebrities alike have argued that Arbery’s death was a result of the fact that he was black. A 2000 hate-crimes law was struck down by the Georgia Supreme Court in 2004 for being “unconstitutionally vague.”

The U.S. Department of Justice announced that it was considering hate-crimes charges against the McMichaels.

But Georgia State University law professor Jessica Cino said proving the killing is a hate crime would be challenging.

“A hate crime itself is basically defined as a crime where a suspect or defendant targets a particular victim because they are in a specific group,” said Cino, who specializes in criminal law. “A hate crime is difficult to prove. If they don’t have a track record, if they have not been really vocal about (targeting a specific group) on social media — that is an uphill battle that the Department of Justice may not want to undertake in this case.”

Still, many lawmakers have called for Georgia to pass a hate-crimes bill that passed the state House last year before stalling in the Senate.

House Speaker David Ralston, a Blue Ridge Republican and attorney, has urged the Senate to pass House Bill 426, but its future is unclear as lawmakers prepare to return to the Capitol sometime next month to complete the legislative session that was suspended in March to slow the spread of the novel coronavirus.

Senate Judiciary Committee Chairman Jesse Stone, a Waynesboro Republican, said some senators oppose the proposed law because they believe it could limit the discretion of trial judges to impose sentences and also because of a “philosophical concern” about requiring different punishments for similar crimes. The bill would have to make it through Stone’s committee before it could receive a floor vote in the Senate.

HB 426 would give sentencing guidelines for anyone convicted of targeting a victim based on race, color, religion, national origin, sexual orientation, gender, mental disability or physical disability.

In the case of Arbery, attorneys for Gregory McMichael said Friday that racism did not play a role in the shooting.

State Sen. Harold Jones, an Augusta Democrat and attorney, said he believes it’s possible to prove the McMichaels were motivated to follow and shoot Arbery after seeing him on a home construction site because of Arbery’s race.

“(The McMichaels) deprived Mr. Arbery of any agency of just being a normal person and all the things a normal person might be doing and assumed immediately that this has to be a criminal act,” Jones said. “We know that was the assumption because they had firearms, were carrying them and used them.”

State Rep. Chuck Efstration, a Dacula Republican who sponsored the bill, said he believed Georgia’s legislation balanced the need to pass a law that protects marginalized groups while not eroding changes made under former Gov. Nathan Deal to overhaul the criminal justice system — such as moving away from having mandatory minimum sentences for certain crimes.

If HB 426 was state law, a person convicted of a crime and proved to have been motivated by bias would face punishment ranging from three months to a year and a fine of up to $5,000 for a misdemeanor offense to at least two years in prison for a felony offense.

The bill emerged from the House last year by a narrow 96-64 margin, with many Republican lawmakers who voted against it saying it placed a higher value on victims of certain crimes. A bill must receive 91 votes to pass the House.

Efstration, who is an attorney, agreed that proving that someone is motivated to commit a crime due to bias can be difficult.

“There is a very high burden in this bill for determining that a hate crime is appropriate,” he said. “Having such a strict requirement is a safeguard against inappropriate application and, rather, helps to ensure that prosecutors and law enforcement only seek this when it’s appropriate.”

Even though hate crimes are typically hard to prove, they are important laws to have on the books, said Allison Padilla-Goodman, vice president of the Southern division of the Anti-Defamation League. The group has pushed Georgia lawmakers to pass legislation for several years.

“The mere act of investigation is something that has powerful meaning and implications to people in the community,” Padilla-Goodman said. “I think that people are just having moment after moment of being jolted, like ‘why do we not take people’s identity seriously in Georgia and why do we not actually investigate and prosecute these things appropriately?’ ”

State Rep. Josh McLaurin, an Atlanta Democrat and attorney, said while he doesn’t believe the publicly known facts prove that Arbery’s killing was a hate crime, he said passage of the proposed legislation would acknowledge that racism kills.

“And it is pervasive enough in the violence we often see that the community needs to have a legal response to it to express in the strongest possible terms that we condemn racism-fueled crimes in the state,” he said.

And that’s a move Efstration said he hopes the Legislature will take.

“The Senate is in a position to act on this quickly,” he said. “I think that that would send a strong message that the General Assembly takes this issue very seriously, and with the suspension of the legislative session we’re in a unique position to pass and send this bill to the governor’s desk.”

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