The three white Georgia men accused of murdering Ahmaud Arbery have already come in for harsh judgment from the highest of places. Donald Trump called the slaying of Arbery, an unarmed black man, "disturbing". Barack Obama described it as an example of enduring racial injustice. Brian Kemp, Georgia's Republican governor, called it "absolutely horrific".
In the coming days, a dozen jurors in the small coastal city of Brunswick, Georgia, will be called on to judge the actions of the three suspects: Gregory McMichael (67); his 35-year-old son, Travis McMichael, and their neighbour William Bryan (52). Their pursuit of Arbery (25), through their Brunswick suburb after suspecting him of a series of break-ins ended with a brief fight in which Travis McMichael fired his shotgun at Arbery at close range.
The release of a graphic video of the February 2020 shooting, recorded by Bryan, sparked nationwide protest and prompted the state legislature to make significant changes to Georgia criminal law, including passage of the state’s first hate crimes statute.
On Monday, attention will turn back to Brunswick, where jury selection is set to begin in the murder trial of the three men – the first chapter in a courtroom drama likely to be charged with raw emotion and allegations of racism.
With an unsettling video playing a starring role, the trial will bear similarities to that of Derek Chauvin, the former Minneapolis police officer who was found guilty of murder in April after a bystander video showed him kneeling for roughly nine minutes on the neck of George Floyd, an unarmed black man.
Self-defence
But with its fraught themes of self-defence – and questions about the point at which neighbourhood vigilance lapses into vigilantism – the trial is also likely to echo the 2013 case of George Zimmerman, the Florida neighbourhood watch volunteer who was acquitted in the murder of Trayvon Martin, an unarmed black teenager.
“There’s a lot of similarities,” said Mark O’Mara, who represented Zimmerman in that trial, which, like the Floyd case, was closely watched as a barometer of matters of race and justice in 21st-century America.
“You have somebody who was watching after their neighbourhood, if you want to use that generic phrase, and saw somebody who they thought didn’t belong there and took it within their own hands to do something about it.”
Lee Merritt, the lead counsel in a civil lawsuit brought by the Arbery family, blasted what were expected to be the defence’s arguments during the trial, particularly the idea that Travis McMichael acted out of self-defence. “It’s a simple fundamental principle of law,” Merritt said. “The aggressor is the person or persons that initiates the encounter. Here, these men pursued Ahmaud based on a hunch, and when he fled they trapped him.”
Arbery, a habitual jogger, was captured on security camera video in the neighbourhood of Satilla Shores, a couple of miles from his own house, on a Sunday afternoon. One video shows him walking into a house under construction on the McMichaels’ street.
The half-built home was one that Arbery had entered on other occasions, based on other camera footage, although there is no evidence that he ever did more than look around the property.
According to a police report, Gregory McMichael, a former investigator in the local prosecutor’s office, saw Arbery in the house and thought he looked like a man suspected of several break-ins in the area. He called to Travis, his son, a navy veteran and boat-tour operator.
The elder McMichael grabbed a handgun; his son, a shotgun. The two jumped into a truck and gave chase and were eventually joined by Bryan, who drove his own truck. Arbery, a former high school football player, tried to run from them.
Eventually, the pursuers cut off Arbery’s escape routes. Bryan’s video shows Gregory McMichael standing in a truck bed on the phone with 911 and Travis in the street next to the truck, holding his shotgun. Arbery runs around the truck, then runs straight toward Travis McMichael. The first of three shotgun blasts can be heard going off soon after the two men clash.
National attention
The three pursuers walked free for weeks afterward, while one of the prosecutors handling the case initially determined that they had broken no laws. They were eventually arrested as national attention and outrage grew. Both the McMichaels and Bryan have pleaded not guilty. They were denied bond and have been waiting for their day in court for more than a year in a Glynn County jail.
All three men have also been indicted under federal hate crime and kidnapping laws. Jason V. Sheffield, a lawyer for Travis McMichael, said he will argue in the state trial that Arbery tried to take McMichael’s shotgun away and in so doing, placed McMichael “in fear of being shot himself”.
A second, and perhaps more remarkable, pillar of the defence strategy will be its reliance on Georgia’s civil war-era citizen’s arrest statute, which came under scrutiny as a result of Arbery’s killing and was significantly weakened earlier this year by the Republican-controlled state legislature.
The defence lawyers, said Ronald L Carlson, emeritus professor at the University of Georgia School of Law, will be "trying to convince the jury that these folks honestly believed that there was a burglary suspect running in the neighbourhood".
Under the old citizen’s arrest law, Carlson noted, a private person is allowed to arrest someone if a felony is committed in that person’s presence “or within his immediate knowledge”. The person seeking to make the arrest must also have “reasonable and probable grounds of suspicion”.
The prosecution is being handled by the Cobb County, Georgia, district attorney’s office, where a spokesperson declined to comment last week. In court documents, prosecutors have said that the three men had tried to “unlawfully” detain Arbery, who had been “unable to escape the strange men” and “was forced to face the man who was pointing a shotgun at his chest”.
Question of race
Merritt said that prosecutors were also likely to argue that the three men were motivated by racism. In a June 2020 hearing, a Georgia state criminal investigator testified that Bryan said he heard Travis McMichael use a racist epithet soon after firing his shotgun. The investigator said McMichael had used racist language in numerous previous social media posts and text messages.
Sheffield refuted the idea that the incident was about race. “There is no doubt that racism is still alive and well not only in Georgia, but all across the country. So when this case came up, it instantly felt like that same old narrative of Southern racism,” he said in a recent interview.
But he said the jury would come to see that the defendants were motivated by “a common concern in their neighbourhood about the ongoing crime and that they were simply trying to assist law enforcement in putting an end to it”.
Defence attorneys recently asked superior court judge Timothy R Walmsley to exclude from trial photos of a vanity licence plate on Travis McMichael's pick-up truck of the old Georgia state flag, which features the Confederate battle flag symbol.
The judge has not ruled on that motion, but he has issued two other rulings that do not help the defendants. One prevents discussions of Arbery’s serious mental health issues. Another prevents the defence from bringing up Arbery’s past criminal record, including guilty pleas for shoplifting and taking a gun onto a high school campus.
From the beginning of the case, there have been suspicions that elements of the local justice system had favoured the three pursuers. In September, Jackie Johnson, the former chief prosecutor for the area who briefly handled the case, was indicted on charges of violating her oath and obstructing a police officer.
Among other things, the indictment said that she showed "favour and affection" to Gregory McMichael, who had worked previously in her office. – This article originally appeared in The New York Times
