The Daily - A Prosecutor’s Winning Strategy in the Ahmaud Arbery Case

Episode Date: November 29, 2021

This episode contains strong language. Heading into deliberations in the trial of the three white men in Georgia accused of chasing down and killing Ahmaud Arbery, an unarmed Black man, it was not clear which way the jurors were leaning. In the end, the mostly white jury found all three men guilty of murder. We look at the prosecution’s decision not to make race a central tenet of their case, and how the verdict was reached. Guest: Richard Fausset, a correspondent based in Atlanta. Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: How a prosecutor addressed a mostly white jury and won a conviction in the Ahmaud Arbery case.“It’s good to see racism lose”: The murder convictions were praised by many. For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From New York Times, I'm Michael Barbaro. This is The Daily. Madam Foreperson, I understand you have reached a verdict as to each defendant. We have. Please hand your verdict forms to the sheriff. Today. We the jury find the defendant Travis McMichael, the defendant Greg McMichaelMichael, and the defendant, William R. Bryan, guilty. Guilty. Guilty. The three men who killed Ahmaud Arbery have been found guilty of murder. The triggerman, Travis McMichael, his father, Gregory McMichael, and their neighbor, William Roddy Bryan, claimed that they suspected Arbery of burglaries in their neighborhood and were attempting to make a citizen's arrest.

of burglaries in their neighborhood and were attempting to make a citizen's arrest. I spoke to my colleague, Richard Fawcett, about why the prosecutors chose not to make race the center of a case that many saw as an obvious act of racial violence. It's Monday, November 29th. Richard, heading into deliberations last week, it was not at all clear what direction the jurors were going to go in with this verdict. And I think a lot of that came down to two things. The first was our sense, as you had told us, that under

Georgia's self-defense and citizens' arrest laws, the three defendants in this case would have a relatively strong case. And the second was the verdict just a few days earlier in the case of Kyle Rittenhouse, where a self-defense argument had prevailed. And yet, here the jury overwhelmingly found all three men involved, in this case, guilty of murder. So, help us understand how we got here. Well, I think one of the elements of this trial that stood out to many of the people who were watching it from the outside

was this key decision by the prosecution team and the lead prosecutor, Linda Dunacosky, that really kind of went against the grain of the broader narrative of the story of the killing of Ahmaud Arbery. To the world at large and the people who were following this case closely, it was interesting, but also just tremendously horrible because of the way that it echoed some of the very most shameful aspects of Southern history, particularly the extrajudicial killing of Black people at the hands of white people.

It was white men in two pickup trucks chasing a black man through a largely white subdivision in the deep South. And yet Ms. Dunacoski, who is this white prosecutor from Cobb County, who had spent most of her time in the big liberal city of Atlanta, nearly 300 miles away, came down to Glynn County, Georgia, and she decided to really only kind of glancingly touch on race as a motivation when there were a lot of people who thought that it should have been very central to her argument before the jury. So why do you think the prosecutor, Ms. Donikoski, chose this strategy? Well, the biggest piece of it, and a lot of this we're just guessing at her strategy,

was the fact that of the 12 people on the jury, 11 of them were white and one of them was black. And so there's a theory out there that her presentation had to be, you know, kind of custom tailored to that kind of jury. You know, a lot of legal experts will tell you that the racial composition of juries in the United States tends to really matter. There was a law professor named Paul Butler from Georgetown University who mentioned to me, well, look, you have a case like the Derek Chauvin trial in Minneapolis where you had a racially diverse jury and the case went against Mr. Chauvin, the white police officer. Back in 2013, you had the case of George Zimmerman, the neighborhood watch guy who had shot and killed a African-American teenager, Trayvon Martin. When he went to trial, he was acquitted, and that was a largely white jury. So this was an extremely important moment in this drama when that jury was finally seated. And Richard, do we have any actual evidence that not really talking about race was a strategy from

this prosecutor tailored to this jury? Well, Ms. Dunacosky and her team haven't talked about the strategy itself. But from pretrial hearings and pretrial motions, we got a sense of the kind of evidence that they potentially had at their disposal that might underscore an argument that racial animus was the motive for these acts. And I think we can deduce quite a bit from the fact that none of that evidence ended up being introduced to the jury at trial. These elements of evidence fell into three kind of buckets. The first one was a series of what the prosecution called racial text messages and or social media postings by the three men, one of which we heard about a little bit in a hearing racist joke from one of the

defendants to one of their friends. The second category was extremely explosive. This was an allegation that the defendant Roddy Bryan had made in a conversation with the Georgia Bureau of Investigation that another defendant, Travis McMichael, the man who pulled the trigger of his shotgun and killed Ahmaud Arbery, had used a tremendously crude racial epithet right after the moment that he pulled the trigger. Now, this is an allegation that Travis McMichael's lawyers said never happened. It also would have faced just technical and legal issues and being brought to court. There was a third category, though, that the judge ruled that Ms. Dunikoski was allowed to bring up in court, and she never

did. And that was the presence of a decorative license plate on the front of Travis McMichael's pickup truck, the pickup truck that he and his father used to chase this unarmed black man through their neighborhood. It was a license plate of the old Georgia state flag, which has embedded in it the old Confederate battle flag. The defense had argued, hoping to keep the photographic evidence of this license plate out of the trial, but the judge ruled that Ms. Dunikoski could use it, and she didn't. So there were obviously some decisions that were being made there about holding back to a certain extent. And Richard, what would be the case that you might imagine for omitting the Confederate flag that one of these defendants had on the front of his car?

Well, you know, that old Georgia flag and this kind of decorative license plate that's in the style of the old flag is one that you see all over the state of Georgia. And it's just not a super rare thing. We can guess that they're sitting around before trial saying, we've got 11 white people in this jury. How many of them have that license plate or know people or just have very complicated feelings about it that might not be very widespread in Connecticut or New York, but might be in the Deep South. So how do we see this strategy play out in the trial itself, starting with her opening argument. Who are we talking about in this case? Well, we were all wondering.

Well, this is 25-year-old Ahmaud Arbery. As she began. He was also a brother, he was an uncle, and he was an avid runner. How she was going to handle the race issue. So ladies and gentlemen, who else do we have? And I'm going to be frank, I thought she was going to handle the race issue. So ladies and gentlemen, who else do we have? And I'm going to be frank, I thought she was going to bring it up then. We have Travis McMichael, seated right over here, 34 years old at the time. And she absolutely did not.

Why are we here? We are here because of assumptions and driveway decisions. of assumptions and driveway decisions. She really framed her opening argument around the central idea that these three men had made what Ms. Dunikoski called assumptions and driveway decisions. This is the thing. Greg McMichael is in front of 230 Satilla Drive. He's all alone.

And he sees Mr. Arbery running really, really fast down the street. He actually uses the words, hauling ass. And she laid out, moment by moment, what those decisions were. Where Gregory Michael sees him, and Gregory Michael makes his driveway decision to run inside his house and get his son, get his handgun, and have his son get that Remington pump shot down. But to me, what was really interesting was the other element of that construction, which was assumptions. To me, what was really interesting was the other element of that construction, which was assumptions. This is what he tells the police two hours or so later at the Glen County Police Station. So I thought, well, you know, he's running from somebody.

He's just done something. You know, he might have hurt somebody or whatever because, you know. And I think that word carried a lot of weight. He's assumed the worst and has absolutely no immediate knowledge of any crime whatsoever. I think you can read the word assumption in the context of a Deep South murder trial like this as potentially signaling to a jury like this that the assumption was, okay, blackmail, therefore up to no good. All three of these defendants did everything they did based on assumptions. Not on facts, not on evidence. On assumptions that took a young man's life.

And that is why we are here. So she's not explicitly pointing to race as part of the assumptions that were made here. It's all implied. Exactly. I understand we are ready to proceed with the evidence from the state. So Ms. Dunikoski calls a number of witnesses to the stand, many of them law enforcement. And we begin to see where she's going to be making some of her big points and how she's going to be making them. All right, so what we're going to do right now, Detective Marcy, is we're going to go

through what Greg McMichael said about what Greg McMichael did on February 23rd, 2020. Yes, ma'am. All right. One of them is this evidence that really shows that these guys had been quite aggressive over the course of this kind of five or six minutes where this chase of this unarmed man plays out in their neighborhood. What does he specifically say? Quoting, he says, I said, stop, you know, I'll blow your fucking head off or something. I was trying to convey to this guy we were not playing, you know.

We learn from these witnesses that at one point, Greg McMichael, the father of Travis McMichael, the shooter, says that they have Ahmaud Arbery, quote, trapped like a rat. Trapped like a rat. I think he was wanting to flee and he realized that something, you know, he was not going to get away. We have evidence that Roddy Bryan told police that he used his pickup truck to try to block Ahmaud Arbery numerous times as Mr. Arbery's on foot trying to run away. I overshot the road and forced him to go down into the ditch right there. We also start to see a key point pushing against the idea that these guys were trying to effectuate a lawful citizen's arrest under the Georgia state law at the time. What is the next question that you asked Greg McMichael? Did this guy break into a house today? And what did Greg McMichael say in response from

line 8 to line 13? Well, that's just it. I don't know. And what becomes evident is that Ms. Dunikoski is going to hammer really hard on the idea that these guys had no immediate knowledge that a crime had been committed by Ahmaud Arbery on the day they chased him. He had been inside of this house that was partially under construction. We know from video surveillance footage he hadn't taken anything. And in fact, you know, he'd been in this house numerous times before, but we never found any evidence that he took anything from the house. And without this immediate knowledge that a crime had occurred, Mr. Nikoski was going to use this to make the argument that they, under the law, had no right to go after him in the first place.

So he doesn't tell you if he specifically saw him commit a crime that day? Correct. the argument that they, under the law, had no right to go after him in the first place. So he doesn't tell you if he specifically saw him commit a crime that day? Correct. Right. And Richard, as you have told us in past conversations about this case, the citizens' arrest law is important to the defense because it is the legal shield they think they have to justify their actions, actions that ultimately lead to Ahmaud Arbery's death. Exactly. We'll be right back.

The state talked about actions based on assumptions. I'm going to talk about facts. Okay, so that is the prosecution. Tell us how the defense pushes back on all of this. They're there to detain Ahmaud Arbery for the police. This is what the law allows. Well, the defense lawyers had told us from long before the beginning of the trial that they were going to make this case about the idea that these men had acted legally under Georgia's citizens arrest law at the time. 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. And so in the opening statements of a lawyer named Bob Rubin, who was the lawyer for Travis

McMichael, he laid out thematically where this argument was going. It's about Travis McMichael's duty and responsibility to himself, to his family, duty and responsibility to himself, to his family, and to his neighborhood. And... Satilla Shores is a quiet, scenic, middle-class neighborhood. He talked about how his client had what he called a duty and responsibility to his family and to his neighborhood. The case really begins months before in 2019, because Satilla Shores was a neighborhood on edge. Crime had gone up.

It wasn't violent crime. It was property crimes. To check out this suspicious man who had been coming to their neighborhood over and over again, sometimes at night. He's back at the house, Ahmaud Arbery, on December 17th. This is now the third time seen on camera. He has no legitimate reason for being there. People had called the police on this

man. And no one knows him. He's not jogging in the neighborhood. No one's ever seen him. The only time we see Ahmaud Arbery in Satilla Shores is at night on these cameras. At one point, Travis McMichael had confronted him at night and claimed that Ahmaud Arbery had made a kind of motion toward his waist that he perceived as sort of indicating that he may have some kind of weapon. Scares the heck out of Travis. But this sense that these white men were concerned about the safety of their families and that the source of their concern and worry was an African-American man was and is deeply reflective

of the kind of stories that really, again, reach back to this most shameful time in Southern history. And some of the extrajudicial groups that formed up after the Civil War, particularly the Ku Klux Klan, were formed with this idea that white communities needed protecting, idea that white communities needed protecting and that it was going to take a kind of armed, vigilant group to protect white Southerners from Black people who have this tendency to commit crimes or make them unsafe or something like that. And there's just no escaping the fact that this whole case is of that same blueprint. This whole case is of that same blueprint.

Hmm. So, Richard, in the same way that race is implicit in the prosecution's strategy, it's also seemingly implicit in the defense strategy and argument. It's present, but unmentioned. mention. For example, duty and responsibility is a phrase that people would understand as a coded message around protecting the white community from a black man. Yeah, and I think we're obliged to note here that the defense would have said that, well, look, these guys would have been worried about any threat to their neighborhood, be it black or be it white. And in fact, they noted that the McMichaels had confronted a suspicious white man under a nearby bridge at some point. And I think that's where they were going

with this argument. No, we're not worried about the sketchy black person. We're worried about sketchy people in general at a time when our neighborhood is on high alert. Mm-hmm. And Richard, you talked about Travis McMichael's attorney being the one to make this defense argument in the opening statements. And I know that Travis becomes the key witness for the defense.

Why is he the only one of these three defendants actually defending himself on the stand? Well, the other two defendants, William Bryan and Travis McMichael's father, Greg McMichael, decided not to take the stand. They decided it's their right not to testify. So we're left with Travis McMichael. Defense calls Travis McMichael. And when he took the stand... Travis. Yes, sir. Do you want to testify? I do. Why? I want to give my side of the story. He essentially told the jury in the court that he was up there because he wanted to tell his version of the story.

And what is his version of the story? Travis, I want to move to February 23rd. Let's start with where you were when your dad came in the house. I was in the living room. I was trying to get my son to take a nap. So Travis's version of the story is that he's at home in his parents' house. His father tells him, hey, there's this guy. It's the guy who's been inside the neighbor's house.

He said, Travis, the guy that has been breaking in down the road just ran by the house. Something's happened. Then what? Yes. So he ran off. I think he told me to grab my gun. The two of them jump in the truck, and they start going after Ahmaud Arbery. As soon as we get on Burford, I see Mr. Arbery running down the road. And then this chase through the neighborhood plays out over the course of five minutes, and you have this second truck that's involved. And then eventually, Travis McMichael gets out of his car. You have this moment where Ahmaud Arbery is pinned between these two trucks.

And he's running toward Travis McMichael and his father. He runs around Travis's truck. And then they kind of meet in this violent head-to-head at the front of the truck. He grabs the shotgun and I believe I was struck on that first instance that we made contact. And this is what scares Travis McMichael the most, Travis McMichael says. He struck me. It was obvious that he was attacking me, that if he would have got the shotgun from me, then it was a life or death situation. And I'm going to have to stop him from doing this, so I shot.

And Richard, does this testimony from Travis McMichael appear to be a compelling presentation to the jury? Well, we don't know where the jury's going at this point, of course. Mr. McMichael, my name is Linda Dunacoski. If you can't hear me or I ask you a question you don't understand, let me know, okay? Yes, ma'am. goes back over this crucial five minutes of this chase, and she asks these questions that really kind of work against the idea that Ahmaud Arbery was a really serious threat to him. And at this point in time, when you first see him on Burford,

he's not reaching into his pockets. No mail. Not running. No mail. And he never yelled at you guys? No ma'am. Never threatened you at all? No ma'am. Never brandished any weapons? Yeah, he did not threaten me verbally, no ma'am. All right. Didn't pull out any guns? No ma'am. Didn't pull out any knife? No ma'am. Never reached for anything, did he? No. He just ran. Yes, he was just running. And she brings up the fact that Travis McMichael had been asked about whether or not Ahmaud Arbery had grabbed his gun in an interview that Travis McMichael gave to law enforcement shortly after the shooting happened. And in that interview, he said he really wasn't sure what happened, whether the gun had been grabbed or not. Detective Nohilly specifically asked you, do you remember if he grabbed the shotgun at all? And your response was, I want to say he did, but honestly, I cannot remember.

I mean, we were, me and him were face to face the entire time. Do you remember saying that? Yes. And I was trying to think of that exact moment. He had the weapon the way that I was describing it. But why I said he did not have the gun at that second, I don't know why. But it happened so fast and trying to recall and everything. I've obviously missed every minute detail.

So that is inconsistent with what he has just said on the stand. Yeah, inconsistent and ostensibly harmful in the eyes of the jury. So what we see in the cross-examination of Travis McMichael is this prosecutor, Ms. Dunikoski, really working to dismantle the argument of the defense that Travis McMichael had acted in self-defense. And also... But isn't it true that Satila Shores only had one burglary call in all of 2019 and it was a false alarm? We see her dismantling the idea that he had acted in the spirit of the citizen's arrest law. And then seeing a burglary on the Facebook page, that was what I was heard about the neighborhood. So you're telling this jury that what you heard was rumor from other people? It was what I was told from my mother and seeing on Facebook and from the neighbors.

Okay. So you don't know this from the police, that's correct? I didn't hear it from the police, no. Okay. The information, it turns out, that he had about this guy turned out to be not very firm and not really from the best sources. the best sources. And again, these were the two pillars of the defense's argument. And we're really seeing the way the prosecution is now trying to take those apart. So here again, the prosecutor is turning to this idea of assumptions, which of course are not the legal basis for arresting someone or shooting them. for arresting someone or shooting them.

Yeah, that's her argument. And we're going to see in her closing arguments for the first time this explicit argument that these crimes had been committed with a racial motive. And she does so with this one sentence where she says that Mr. Arbery was attacked. Because he was a black man running down the street. Because he was a black man running down the street. But the bottom line is, but for their actions, but for their decisions, but for their choices,

Ahmaud Arbery would be alive. But still, what she really focuses so much of her closing arguments and then her subsequent rebuttal on was not this kind of idea where race is central to the argument. Don't chase down strangers to confront them. Don't go after pedestrians in your truck. But this idea that these guys had just been really stupid, that they had really kind of acted in a way that just sort of defied all common sense.

I mean, common sense tells you, you pull up in a truck on somebody who's like a pedestrian who's out for a jog. I mean, I don't know, are any of you runners? You ever had a strange truck pull up and have some people start yelling at you? At one point, she says to them, don't go looking for trouble. Don't go looking for trouble. Because you will find it, and it is not going to turn out the way you think it is. And what about the defense? How do they make their closing argument here? The most noteworthy of the closing arguments came from Laura Hogue, who's a veteran criminal defense attorney out of Macon, Georgia. And it was Ms. Hogue who made what ended up being perhaps the most talked about comments in this case. Turning Ahmaud Arbery into a victim after the choices that he made does not reflect the reality

of what brought Ahmaud Arbery to Satilla Shores in his khaki shorts with no socks to cover his long long dirty toenails. She's making this case that Ahmaud Arbery should not be considered a victim. He was a recurring nighttime intruder and that is frightening and unsettling. He died because for whatever inexplicable, illogical reason, instead of staying where he was, whatever overwhelming reason he had to avoid being captured that day and arrested by the police.

He chose to fight. He chose to fight. It was the first time we saw so explicitly a portrait painted of Ahmaud Arbery as someone who should be so feared. I realize, probably more than any of you, what an incredibly unpopular thing that is to say. Somebody's got to say it. thing that is to say. Somebody's got to say it. And believe me, I'm proud to be the one to say it. And Richard, what do you make of the decision by the defense to go there? Is this a sign of desperation? A reflection of the fact that the prosecution has done such a compelling job of making the case that there was no crime here to justify a citizen's arrest or a threat sufficient enough to justify shooting under self-defense. And therefore, perhaps the defense sees this as their last possible hope to basically

appeal to the biases and fears of this mostly white jury. Well, again, there are a lot of people watching this case who felt like the defense's argument from the very beginning, talking about duty and responsibility, et cetera, were making this implicitly a story about race. And when Laura Hogue makes this case in her closing argument, there was a feeling among a lot of people that this was just moving right up to the line of making it explicitly about race. Not exactly, because she never uses these words like black and white, but it felt like that sort of implicit argument was strengthened. And of course, a lot of people were really horrified by this language about Ahmaud Arbery's dirty toenails. To a lot of people, it felt like race baiting.

To a lot of people, it felt very racist. So I was really interested in why Laura Hogue would have made these comments about the toenails. I reached out to her law partner and husband, Frank Hogue, and he essentially talked about how important it is for a defense attorney in a murder case to give a full-throated and zealous defense of their client. Anything less is just not doing the job of a criminal defense attorney. of why the toenails comment was important and needed to be added according to him, was they felt like they really needed to push back against this narrative that Ahmaud Arbery was a jogger in the neighborhood that day. I know from my reporting that Ahmaud Arbery was a jogger. He was a runner. I talked to people in neighborhoods and in businesses in that area who told me that they saw him running

all the time. There is a question about whether or not he jogged into that neighborhood on that particular day. But the hoax felt like bringing up this detail about the dirty toenails would would really serve as a powerful and effective pushback against the idea that it was really jogging that Ahmaud Arbery was up to that day. And for me, it raises this kind of question of what we think of as a jogger, which I think it's a pastime or a hobby or a sport or whatever, that I think carries with it a lot of assumptions and a lot of, you know, kind of class baggage. Ahmaud Arbery was not a rich guy. One of the reasons he ran, I think, is because it was the kind of most reliable way for a guy without a lot of money to get around. And I think we can ask the question about whether or not Frank and Laura Hogue, who are two highly respected criminal defense attorneys, knew that

they were raising the issue of race and trying to play to the perceived racist perceptions of jurors and talking about Ahmaud Arbery's body in that way. Well, whatever the intent, we know it didn't really work for the defense. Yeah, I think it's fair to assume that. Soon after, this nearly all-white jury moved very quickly in arriving at a verdict, and they found all three of these men guilty of murder. And how about the strategy, Richard, that did work, in which the prosecution decided not to claim that race was the major motivation in this case? I wonder if there was any discomfort

among Ahmaud Arbery's family or among Black leaders in Georgia that this winning strategy ultimately did downplay race. Well, you'll remember that lots of people were skeptical and critical of this strategy. And they were concerned about the idea of not knitting together a narrative with race as the motive. And they were worried about the moral implications, I think, of not making race central to this version of events. But Ahmaud Arbery's family was extremely pleased with the way Ms. Dunacosky conducted herself in court before there was even a verdict. And from other conversations with African American people

in Brunswick, Georgia, after the verdict, you got this sense that for a lot of people, it felt like a more poignant victory based on the fact that it really came down largely to the question of whether these guys were wrong in doing what they did. And that leaving the case to be tried on those grounds without the kind of extensive racial baggage around it was in some ways an even more powerful statement to make. Well, Richard, thank you very much. We appreciate it. Thank you, Michael. We'll be right back. Here's what else you need to know today. Today, given the new faster spreading variant of concern has been detected in southern Africa, I am amending civil aviation requirements to address the situation. Over the weekend, many countries introduced new travel restrictions

to limit the spread of a troubling new variant of the coronavirus that was first detected in South Africa and Botswana. of the coronavirus that was first detected in South Africa and Botswana. The variant, named Omicron, has been reported in at least a dozen countries, including Britain, Australia, and Denmark. That has prompted governments, including the U.S. and Canada, to temporarily ban most travelers from countries across Southern Africa. Much is still unknown about the variant, but experts like Dr. Anthony Fauci

fear that based on the mutations they've studied so far, Omicron could be highly contagious. The profile of the mutation strongly suggests that it's going to have an advantage in transmissibility and that it might evade immune protection that you would get, for example, from a monoclonal antibody or from the convalescent serum after a person's been infected and possibly even against some of the vaccine-induced antibodies. In an interview on Sunday with NBC News, Fauci said that the best protection against the

variant remains vaccinations and booster shots. Even with variants like Omicron, if you get boosted, you're going to get a level of antibody that's high enough that it is likely you'll be able to get at least some degree and maybe a lot of protection against this. The Omicron variant will be the subject of tomorrow's show. Today's episode was produced by Chelsea Daniel, Rochelle Banja,

Sydney Harper, and Rachel Quester. It was edited by Lisa Tobin with help from Lisa Chow and engineered by Chris Wood.

Original music by Marion Lozano and Dan Powell. Our theme music is by Jim Brunberg and Ben L Chris Wood. Original music by Marion Lozano and Dan Powell. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.