Georgia prosecutors proved Ahmaud Arbery’s killers guilty of murder. Now, lawyers for the federal government will try to prove they chased down the 25-year-old jogger because he was Black.
That case may be tougher to make.
Following jury selection, Assistant US Attorney Barbara Bernstein laid out the crux of her case in opening statements, flatly stating the evidence would show “that if Ahmaud Arbery had been White, he would have gone for a jog, checked out a cool house under construction and been home in time for Sunday supper.
“Instead, he went out for a jog and ended up running for his life.”
In their rebuttal, defense attorneys representing the three White men in the federal hate crimes trial unfolding in Brunswick conceded Travis McMichael, Gregory McMichael and William “Roddie” Bryan used racist language, alleged examples of which Bernstein provided the jury. However, the defendants’ lawyers insisted, it wasn’t the reason they chased Arbery.
“Greg and Travis McMichael followed Ahmaud Arbery not because he was a Black man, but because he was the man who had been illegally entering the house that was under construction,” Gregory McMichael’s attorney, A.J. Balbo, said, referring to an unfinished home in the neighborhood where Arbery had been on caught on camera.
Evidence in the state trial indicated Arbery was never accused of any crime at the property – a point that will doubtless play into federal prosecutors’ case as they try to show the McMichaels and Bryan pursued and tried to kidnap Arbery because of his race, resulting in his death.
On the line for the defendants – already serving life sentences on state murder convictions – are steep fines and more decades behind bars. But for some observers, the stakes reach far beyond the men on trial.
“It sends a message to every Black person everywhere that you can’t hunt people down who are legitimately in a place just because you’re afraid. Doing that is racist, and we will punish it,” said hate crimes expert and Indiana University law professor Jeannine Bell. “It’s not just that it is racist; the government cares about that.”
The men have pleaded not guilty
To secure a conviction on federal interference with rights – a hate crime – prosecutors must prove the men acted out of racial animus. Travis McMichael, his father Gregory and their neighbor, Bryan, also face attempted kidnapping counts, and the McMichaels each face a weapons charge. The McMichaels’ attorneys declined to comment.
Bryan’s counsel, Pete Theodocion, could not speak about the specifics, he said, but expected his team would do its best to earn an acquittal. “It will be a much different trial than was the state case, and we are hoping for the best,” he wrote in an email.
All three have pleaded not guilty.
In the state case against the men, the key piece of evidence was a video, released by the defendants, showing them chasing Arbery in February 2020 through their neighborhood as he tried to elude them. Before delivering guilty verdicts, jurors watched the footage: Travis McMichael – his armed father in the truck bed and Bryan in another truck – exits his vehicle with a shotgun and fatally shoots Arbery after a brief struggle.
The prosecutor in the case, Linda Dunikoski, believed the video would be enough to prove murder and other state charges without getting into race or the men’s motivation, she told CNN.
Evidence in the federal case, experts say, isn’t so straightforward.
Though the judge has sealed several evidentiary motions, the murder investigation and previous court proceedings reveal the men sent racially charged texts and social media postings unrelated to Arbery. Confederate imagery on Travis McMichael’s truck and Bryan’s allegation to police, per a state investigator, that he heard Travis utter a slur after shooting Arbery might also come into play. Attorneys representing Travis McMichael in the state trial have suggested Bryan made up the slur.
In opening arguments, Bernstein also raised allegations that Travis McMichael referred to African Americans as “subhuman savages” and that his father once said of a civil rights leader who had just died, “He was nothing but trouble. Those Blacks are nothing but trouble.”
Racial slurs are legal, the prosecutor said, “but you’ll still hear lawyers ask about them because those slurs can provide you with important evidence about why a defendant did what he did.”
If the judge admits the evidence, will it be enough to meet the burden of a hate crime? Tough to tell, said Michael Moore, the ex-US attorney for the Middle District of Georgia. The texts and social media made public contain “very unsavory and just disgusting commentary,” he said, but that alone will not suffice.
It’s like someone who cheats at cards, Moore said: Proving she or he cheats might speak to their propensities and demonstrate they have the character of a thief, but does it mean they robbed a particular bank on a certain day?
“They’ve got to go in and say, ‘We have this evidence of racial bias and race-related motivation, and that is one of the reasons that (Arbery) was killed,’” the former federal prosecutor said. “The question is: Does the fact that somebody may be a racist – can you say that is what led to this killing? And I think that’s a tougher burden on the government.”
Admissions made in withdrawn plea deal
At a hearing this month, Travis McMichael hoped to have most of the federal charges against him dropped in exchange for pleading guilty to interference with rights. He was ready to accept a 30-year sentence, so long as it was served in federal prison.
In offering to plead guilty, the 36-year-old told US District Judge Lisa Godbey Wood he willfully injured, intimidated and interfered with Arbery because he was enjoying a public street and, as Wood put it, “acted because of Mr. Arbery’s race or color.”
Wood scuttled the plea deal after hearing from Arbery’s family, whose legal team likened federal prison to a country club.
“Please listen to me,” Arbery’s mother, Wanda Cooper-Jones, told the judge. “Granting these men their preferred conditions of confinement would defeat me. It gives them one last chance to spit in my face after murdering my son.”