The three men facing federal hate crimes charges in the death of Ahmaud Arbery will have to overcome a jury’s reactions to racial slurs in text messages and conversations as evidence that the murderers were motivated by race when they gunned down the 25-year-old Black man on a Brunswick-area street on Feb. 23, 2020.
Tuesday marked the second day of testimony in the Brunswick U.S. District courtroom where father and son, Greg and Travis McMichael and their neighbor William “Roddie” Bryan are set to have a jury decide their fate for the second time in months.
Federal prosecutor Bobbi Bernstein opened the trial this week arguing the deadly confrontation was sparked by the defendants’ disgust at the sight of a Black jogger they suspected of committing a crime in their Satillas Shores neighborhood.
On Tuesday, Georgia Bureau of Investigation special agent in charge Richard Dial described the older McMichael’s tone as “jovial” while describing the moments that led up to him climbing in his son’s pickup truck to chase after Arbery, who was unarmed. While Arbery was lying dead in the street, Greg McMichael called Arbery an a**hole who had been frequently breaking into places in the neighborhood, Dial said.
Investigators say there were no reports of home burglaries in the year leading up to Arbery’s killing and that even though white people were also captured on video at the same home under construction, Arbery became the McMichaels’ prime target.
Chad Posick, criminal justice and criminology professor at Georgia Southern University, said in an interview to expect federal prosecutors to present the defendant’s racially charged statements to match up with their actions on the day Arbery was murdered. Defense attorneys minimized Arbery’s race as a factor in the pursuit of Arbery through Satilla Shores during the state trial last year.
“Now prosecutors have to really get into what they were thinking, their mindset, where their hearts are at,” Posick said. “If you look at the (hate crimes) research, it’s much more challenging to prove that.
“In federal trials like this, it’s not about establishing guilt on whether or not they did it,” Posick said. “One of the defense attorneys said you don’t have to like my client, we acknowledge that he said things that are derogatory to people of color but that’s not why he pursued Ahmaud.”
As part of the prosecution’s case, Travis McMichael was hammered for writing racial epithets in text messages and Bryan told a GBI agent that Travis McMichael used a racial slur moments after killing Arbery.
The elder McMichael was accused of saying Black people cause trouble in a 2015 conversation. And Bryan, who joined midway through the chase in his truck and shot a video that sparked widespread outrage, had jurors hear of a text message where he used the N-word when expressing his disappointment in who his daughter was dating.
After a state jury made up of 11 white people and one black person found the men guilty of murdering Arbery in November, a superior court judge sentenced the McMichaels to life without parole and Bryan to life with some possibility of parole.
In the federal case, the jury includes three Black members and a Hispanic person. During the federal jury selection, a much larger pool of candidates was assembled from a 28-county region instead of only from Glynn County to hear the murder trial.
“Obviously the jury is much different this time around, they were much more intentional in making sure it was diverse so on appeal someone can’t go back and say this was not representative,” Posick said.
The McMichaels tried to avoid the federal trial through a deal with the prosecution, but they withdrew their guilty plea after a judge rejected the terms following the Abery’s family’s passionate requests for the judge to do so.
Posick said it’s unusual for a judge to reject a plea deal, but also noteworthy in such a high-profile case. It does come with the risk that if the defendants aren’t found guilty of committing hate crimes, there’s a remote chance their state sentences could be reduced under appeal.
“Generally, when there is a plea, attorneys will make sure it’s something that the judge would take in consideration and approve,” he said. “I think (rejection) is pretty uncommon, but I think it goes to the importance of the case and having race tried in front of a jury of peers and in front of the nation.”
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