On Monday, Travis McMichael, alongside his attorney, approached the podium inside a federal courtroom in Brunswick and declared he committed a hate crime when he killed Ahmaud Arbery nearly two years ago.
Monday’s hearing revealed McMichael frequently called for Black people, particularly those who committed crimes, to be killed. He called Black people “monkeys, savages, and (the n-word)" on social media and in text messages. Federal prosecutors also noted McMichael had the former Georgia state flag, which contains the confederate flag, on the front license plate of his truck.
But without direct evidence, proving hate as a motivating factor would be difficult.
“You have to get inside someone’s mind, someone’s heart,” said Brunswick-based trial attorney Page Pate.
Proving hate
In instances where there is no direct evidence, Pate said prosecutors would have to use jail calls, social media posts or statements from friends, coworkers and others to show racial prejudice or hatred.
“You try to develop as much external evidence as possible, because it’s rare that you have direct evidence,” he explained.
But even with the evidence presented Monday, Pate said a conviction in this trial will likely prove difficult. “Here not only do they have to prove that they killed, they have to prove that they did it because of racial prejudice and hatred.”
At the federal level, a hate crime is defined as one motivated by bias against race, color, religion, national origin, sexual orientation, gender, gender identity, or disability. The U.S. Department of Justice began prosecuting federal hate crimes after the passage of the Civil Rights Act of 1968.
The U.S. Justice Department of Justice declined to prosecute 82% of hate crimes at trial between 2005 and 2019, according to a report released in July 2021. During that same timeframe, 1,878 suspects in hate crime cases were investigated, but only 17% of them were prosecuted. Another 1% had their cases disposed by U.S. magistrate judges.
Plea and sentencing
Although McMichael admitted guilt, federal Judge Lisa Godbey Wood denied the plea agreement, which would have allowed McMicahel to serve 30 years in a federal prison concurrent with his state sentencing. Thereafter, he would move to a state prison to finish his state sentence.
Last month, McMichael, 35, along with his father Gregory McMichael, 65, were sentenced to life plus 20 years without parole. Their neighbor William “Roddie” Bryan, 52, was sentenced to life plus five years with the possibility of parole.
Credit: Stephen B. Morton, AP
Credit: Stephen B. Morton, AP
Among reasons for Wood’s decision was the Arbery family's emotional contestation of the agreement and the terms of a binding plea. “Federal judges don’t like binding pleas, in any case, because federal judges don’t like to be boxed in before they know all the facts of the case,” Pate explained.
Should the McMichaels plead guilty Friday, Pate said a sentencing hearing would be held in a few months and still would include evidence that spoke to a pattern of racial prejudice and hatred.
It’s unlikely the McMichaels will get what they want if they plead, but Pate said they run the risk of a stiffer sentence by going to trial. “The only benefit would be accepting responsibility for what they did and hoping the judge gives them a lower sentencing. Basically, throwing themselves at the mercy of the court.”
Credit: Stephen B. Morton, AP
Credit: Stephen B. Morton, AP
The hate crime trial against Bryan will proceed Monday with jury selection, but Pate believes that case will be different because Bryan didn’t pull the trigger and that the burden of proof to show he was motivated by hate is higher.
“I think he and his lawyer are saying, 'There’s no reason for us to plead guilty to 30 years, we have a chance to win the case at trial.’”
Raisa Habersham is a watchdog and investigative reporter for the Savannah Morning News. Contact her at rhabersham@gannett.com.
This article originally appeared on Savannah Morning News: How do you prove hate in the Ahmaud Arbery case? The answer is more complicated than you think
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