Jury Set To Begin Deliberations In Arbery Case

AP Photo/Stephen B. Morton, Pool

Jurors in Brunswick, Georgia will begin their deliberations in the Ahmaud Arbery murder trial today, though the prosecution is getting one last round of rebuttal argument on Tuesday morning before the jury receives its instructions and starts its debate.

Since the media has been so helpful in demonstrating that just reading or watching the news coverage of a trial doesn’t mean you’re getting an accurate story, I can’t give you my expert opinion about whether or not the state proved beyond reasonable doubt that Travis and Gregory McMichael and William “Roddy” Bryan are guilty of murdering Ahmaud Arbery after pursuing him through their Santilla Shores neighborhood one day last February. But after watching the closing arguments on Monday, I can say that I wouldn’t be shocked if at least one of the defendants is acquitted of the most serious charges.

Kevin Gough, the attorney representing Bryan, has generated a lot of headlines over the course of the trial for repeatedly objecting to the presence of Black pastors and activists in the courtroom, which he argues is prejudicial to the mostly White jury. I haven’t found that argument persuasive, but his presentation to the jury on Monday afternoon did give them quite a few things to chew over.

Gough basically took an everything-but-the-kitchen-sink approach to his defense of Bryan. The man wasn’t chasing down Ahmaud Arbery that day, but if he was he broke off contact before Arbery was shot so he wasn’t a party to the crime. Bryan was actually there because of the grace of God that day, and if it weren’t for him we wouldn’t have any direct video evidence of the moment Travis McMichael shot Arbery as the man appeared to reach for the gun, of the moments afterwards when Arbery tries to punch McMichael, only to be shot again.

There were a number of arguments made by Gough, but the one that I found most persuasive was in essence this: Bryan had no idea that the McMichaels were armed that day. He simply saw Arbery run past his home with the McMichaels chasing after him, and he grabbed his phone and got in his truck and followed along. At some points Bryan tried to block Arbery’s path, but he wasn’t in communication with the McMichaels when he was doing so. At one point he lost contact with Arbery and the McMichaels, and was (in Gough’s account) driving back home when he came up on Arbery and the McMichaels. At that point, Travis McMichael was out of the truck, but Bryan (again, according to Gough) was too far away to see that he had a shotgun, or that Greg McMichael had a gun. And since he was too far away to see that they were armed, he was certainly too far away to do anything to stop Arbery from being shot.

It’s not a perfect argument, but it doesn’t have to be. It just has to provide jurors with reasonable doubt, and given that prosecutors have not submitted evidence showing Bryan was armed and he was apparently not in communication with his co-defendants (at least I’ve been able to find no evidence that he was), I could see a jury finding reasonable doubt on the murder charges while still finding him guilty of false imprisonment for trying to block Arbery’s path.

As for the Travis and Gregory McMichael, I know I said I couldn’t give you my expert testimony, so let me give you my non-expert opinion based on the coverage I’ve read/seen and the limited amount of trial testimony I’ve been able to watch. I started the trial with the opinion that the McMichaels weren’t acting in self-defense because they were the initial aggressors, and while I was more than willing to keep an open mind based on the evidence, I just haven’t seen anything to convince me otherwise. Quite the opposite.

Even starting from a presumption of innocence, the state adequately demonstrated to me that the McMichaels had no cause to initiate a citizens arrest under the circumstances that existed that day. Without that justifiable cause all of the actions that took place after they began their pursuit were unlawful. They didn’t have to chase Ahmaud Arbery. They didn’t have to try to block his path. Travis McMichael didn’t need to step out of his truck with his shotgun. And without legal justification for doing so, these actions weren’t just bad ideas brought to life. They were crimes.

So when Arbery pivoted to charge Travis McMichael (which is what looks to me like what happened based on Bryan’s video shot from his phone), he was the one acting in self-defense. I have no doubt that Travis McMichael was in fear for his life when Arbery turned and began to rush towards him. But Travis McMichael was the one who’d been chasing after Arbery for the past five minutes. He was the one behind the wheel of a truck, or at least he was until he blocked Arbery’s path and stepped outside with his shotgun.

The McMichaels had no direct knowledge that Arbery had committed a crime that day. They had no immediate knowledge of any crime that had occurred in the Santilla Shores neighborhood while Arbery was there that day. They suspected that he might be one of several people caught on surveillance footage wandering through an unfinished home in recent months, and they thought he might have stolen some property from the site, but they had no actual evidence that was the case. That’s not enough to make a citizens arrest. And if you’re not chasing someone down to detain them lawfully, then you chasing them down and trying to detain them constitutes a crime.

The defense maintains that no, this was in fact a lawful detention.

Jason Sheffield, who represents Travis McMichael, delivered the closing arguments for the defense.

“Travis McMichael spent almost a decade of his life learning about duty and responsibility,” Sheffield said, referring to McMIchael’s service in the Coast Guard. “He trained weekly, sometimes daily, on what the law provided that he do, what his responsibilities were, how he would make decisions at critical moments of policing and at critical moments of rescue.”

Sheffield spoke of how the community was living in fear after a string of burglaries in the neighborhood, including at one house that was under construction. While throwing water on the claim that Arbery regularly jogged in the neighborhood of Satilla Shores, Sheffield noted that Arbery was seen on camera inside the construction site three different times, including on the day of the shooting, February 23, 2020.

“Reasonable and probable grounds of suspicion,” Sheffield said, citing the legal standard to the jury. “Travis believes [Arbery]’s committed the offense of burglary.”

The “reasonable and probable grounds of suspicion” language is part of the Georgia citizens arrest statute that was in effect at the time. It says, in its entirety: “A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.

The McMichaels’ claim is that since Arbery was trying to flee and they had reasonable grounds for an arrest, then they never lost their right to self-defense.

Sheffield said that under the law, a person doesn’t have to steal anything to have committed a burglary, and under Georgia’s citizen’s arrest law — which has since been repealed, but was in effect at the time — a person can detain another and may have a firearm while doing so.

“It is absolutely horrific and tragic that this has happened. And again this is where the law is intertwined with heartache and tragedy. You are allowed to defend yourself. You are allowed to use force that is likely to cause death or serious bodily injury if you believe it is necessary,” Sheffield told the jury. “This is a law that is for a person in Travis’ situation.”

Here’s why that argument doesn’t work for me. The McMichaels never talked about making a citizens arrest in their first statements to police, but even if that had been their motivation at the time, I just don’t think they had justifiable cause. While their defense attorney claims that Arbery was committing a burglary, a police officer who’d previously spoken to the owner of the home under construction said he was planning on a trespass warning if he’d been able to speak to Arbery, whose identity was unknown to him at the time. Trespassing not only isn’t burglary, it’s not a felony offense. And if the McMichaels know the ins and outs of Georgia’s since-repealed citizens arrest law, in my opinion it’s reasonable that they should also know the difference between the two crimes and in which case citizens were allowed to make an arrest.

Georgia’s citizens arrest law was designed to allow people to stop, say, a fleeing bank robber. Not a guy who you think may have wandered around your neighbor’s home under construction a few weeks earlier. Not even a guy you think may have stole some tools from the construction site in the not too distant past. Not even a guy you believe might have stolen a gun from your truck several weeks prior.

Much like the Kyle Rittenhouse case, for the McMichaels their trial will come down to a guy reaching for a gun, whether or not he was provoked into doing so, and who was the actual aggressor in the fatal attack. But unlike the Rittenhouse trial, from what I’ve seen the state has actually presented solid evidence in support of the argument that by the time the defendant pulled the trigger, both of the McMichaels had lost their claim to self-defense.