The Daily - The Trial Over Ahmaud Arbery's Killing

Episode Date: October 28, 2021

In the coming days, a trial will begin to determine whether the fatal shooting of Amaud Arbery, an unarmed Black man, by two armed white men is considered murder under Georgia state law. Today, we explore why that may be a difficult case for prosecutors to make.Guest: Richard Fausset, a correspondent based in Atlanta who writes about the American South.Love listening to New York Times podcasts? Help us test a new audio product in beta and give us your thoughts to shape what it becomes. Visit nytimes.com/audio to join the beta.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: Here’s a look at the major moments between Mr. Arbery’s killing in a Georgia suburb and the trial of three men charged with murder.A year after his killing in Georgia, Mr. Arbery’s death has sparked a bipartisan effort to remake the state’s 158-year-old citizen’s arrest law. But a potentially divisive trial awaits.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, in the coming days, a trial will begin to determine whether the fatal shooting of Ahmaud Arbery, an unarmed black man by two armed white men, is considered murder under Georgia state law. is considered murder under Georgia state law. I spoke with my colleague, Richard Fawcett, about why that may be a difficult case for prosecutors to make. It's Thursday, October 28th. Richard, as we prepare for this trial to begin,

I wonder if you can describe the scene at the courthouse where the trial is going to take place in Georgia. So this trial is taking place in the small coastal city of Brunswick, Georgia. The killing of Ahmaud Arbery took place just outside of town in a little subdivision there. And there's just a lot of pain and anger still over what happened. And you can feel it in the voices of the people who've been gathering in front of the Glynn County Courthouse. We don't want anyone to ever forget about Ahmaud. These are local people and some people from out of state who've come. They're chanting. They're angry.

They're hurt. They're calling for justice for Ahmaud Arbery. Say his name and we don't get it! Shut it down! Say his name and we don't get it! Shut it down! Twelve jurors will eventually decide the guilt or innocence of Gregory McMichael, his son Travis McMichael, and William Bryan. You can also really feel it inside the four walls of the courtroom.

The judge and attorneys are slowly and painstakingly making their way through a pool of hundreds of potential panelists. You've got lawyers who are having a really hard time finding locals who aren't connected to this case in some way. Brunswick, although not a small town, it's a small city and a lot of people do know a lot of people. You have a number of people who've said that they know or have worked with the families of the three men accused of murder, a number of people who said they knew Ahmaud Arbery's family. Potential Juror 247 says it would be hard for them not to be found guilty.

It's very hard to find people who haven't formed some very strong opinions about it. Mm-hmm. All right, so we are out here now. We're in Satilla Shores. This is the area that Ahmaud was running through. And this week, a bus drove into the Satilla Shores neighborhood. That's the subdivision where Ahmaud Arbery was gunned down. Here we are. I guess we're going to start walking, as you can see. The bus was full of relatives of Ahmaud and of supporters of the family.

And they came to kind of have a moment of communion on this street where he was killed. Showing solidarity with the Ahmaud Arbery family. The Atlanta Journal-Constitution reported that one of the women on the bus referred to the spot as sacred ground. Hmm. of the women on the bus referred to the spot as sacred ground.

Richard, can you remind us what happened at this spot, at what this woman describes as the sacred ground? Yeah, we have video footage that shows a lot of what happened that day. It was February 23rd, 2020. It was a Sunday in the early afternoon. And we know that Ahmaud Arbery had come into the neighborhood of Satilla Shores. There's video footage that shows him walking into a house that's under construction. Ahmaud lived a couple of miles away with his mom across the freeway. And he was known around town as a habitual jogger. And so it wouldn't have been weird or rare for him to be in this neighborhood on foot. We know that he

goes into this house and it's really just not clear why he's in the house. He comes in, he looks around, he doesn't take anything. And on this particular afternoon, a neighbor across the street calls 911 and reports that Ahmad's in the house. The caller says that Ahmad looks like a guy who's been trespassing in the area before. And this neighborhood had been very much on edge about a number of property crimes that had been occurring there. So we know that Ahmad eventually leaves the house and he starts running down the street. And it's at this point that a neighbor named Greg McMichael, who's one of the three murder suspects in this case, he's a former police officer with the Glynn County Police Department, very much known to the kind of law enforcement apparatus there in this county. He sees Ahmaud running down the street. He tells police that he

grabbed his handgun and he shouted to his son, Travis McMichael, who grabbed a shotgun. And these two men jump in a pickup truck and they start chasing Ahmaud Arbery. And they say that they were screaming at him to stop, that they wanted to talk to him. At some point, they're joined by a neighbor, William Bryan, who's the third murder suspect. He's driving his own pickup truck, and the chase plays out on these kind of maze-like streets in this little subdivision, and it ends up, video footage shows, with Greg McMichael and Travis McMichael waiting there for Ahmaud Arbery, who's kind of hemmed in now, and he's approaching this pickup truck where Greg McMichael is standing in the bed of it, and Travis McMichael is now standing outside of the truck holding this shotgun. Travis McMichael then shoots Ahmaud Arbery and shoots again. And soon you see Ahmaud trying to run a few more steps,

but he crumples there on the pavement, and that's where he dies. And so the Glen County police show up to the scene. Greg McMichael, the father, is identified as a, quote, witness in this police report. The police officer interviews him and gets his version of events, takes his statement. But Greg McMichael is not arrested. Travis McMichael is not arrested. William Bryant is not arrested that day. And why not? Because there's this argument that their actions are legal under Georgia's citizen's arrest law.

And what is that law? What does it say? I'll just read this crucial part of the law. The law said, 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. This law dates back to 1863, to the Civil War era. And it's been criticized for helping to create an atmosphere that allowed for the extrajudicial arrest and killing of hundreds of black people in Georgia by white people during perhaps the darkest period in Georgia's history. But nonetheless, this is the law that prosecutors would point to in arguing to the police that

these three men should not be arrested, that they had in fact acted in accordance with this law, and that additionally, Travis McMichael had acted in self-defense when he pulled the trigger on the argument that Ahmaud Arbery, this unarmed man, had attacked him and tried to take his shotgun from him. So just to be clear, these three men claim, and prosecutors are accepting the claim, that this was a legally justified citizen's arrest, basically gone bad. That was the case for many weeks. Mm-hmm. And then what happened? So a few months later...

This cell phone footage is believed to show Ahmaud Arbery jogging in a South Georgia neighborhood before coming upon two men in a truck. The video of the confrontation and the killing emerges. Filmed, in fact, by William Bryan, the third murder suspect who was in the second pickup truck. The 25-year-old tries to get around them and then... It's horrific to watch and I think you can say there is widespread disgust over the whole thing. Earlier this week, I watched a video depicting Mr. Aubrey's last moments alive. I can tell you it's absolutely horrific, and Georgians deserve answers. And I remember, as it was all exploding, a Republican source of mine here in Georgia

saying something like, my Twitter feed is full of ultra-conservative white Georgia Republicans, and they're all totally repulsed by all this. First District Congressman Buddy Carter is reacting to the case, saying in part that the community is rightfully shaken and on edge, and the video footage and what's been reported is deeply troubling. You know, no one can look at the Arbery video and not come to the conclusion that this was hate. And meanwhile, we have the killing of George Floyd, another unarmed black man, and a lot of outrage emerging over the treatment of black people in this country. And in Georgia, in a state where it's very difficult

to get lawmakers and people on two sides of this political divide to agree on anything, you saw something really incredible start to happen. And that is this series of decisions to really profoundly alter Georgia's criminal code as a result of the killing of Ahmaud Arbery. when the Republican-dominated state legislature, at the request of Governor Kemp, starts drawing up what would be Georgia's first ever hate crimes law. Georgia at the time was one of only four states that did not have a state hate crimes law.

Good afternoon, everyone. This is certainly an unprecedented moment in our state. Brian Kemp, one of the most conservative Republican governors in the country, ends up signing this bill into law in June of 2020. Georgians protested to demand action, and state lawmakers rose to the occasion. And he was very explicit at the time that this was a response to the Ahmaud Arbery killing. In fact at the time, and I'll quote him, he called the killing a horrific hate-filled act of violence. We saw injustice with our own eyes. But that wasn't all. Today we are replacing a Civil War era law right for abuse. What we subsequently saw, again at Mr. Kim's request, was the state legislature moving to make serious changes to this controversial citizen's arrest law.

To root out injustice and set our state on a better path forward. Once again, this bill received tremendous bipartisan support in the Republican-controlled legislature. And these changes effectively gutted the citizen's arrest law, removing a lot of the language that was initially used to justify the actions of these three white men outside of Brunswick at the beginning of 2020. We are honored to have Ahmaud's mother, Ms. Wanda Cooper-Jones, and his sister join us today. On behalf of all Georgians, I want to thank you both for being here. There was some sense that something remarkable had happened here that you don't often see after one of these horrific events and and that is even though a lot of people call for

substantive change after these kinds of things you don't always see it and in this case we actually saw it. We saw real, tangible legal change. But what's really interesting as we approach opening statements in this trial is that all of these important and substantive changes are really likely to have very little effect on the outcome and the question of whether or not these three men are innocent or guilty in the murder of Ahmaud Arbery. We'll be right back.

Richard, why would all of these changes to the law in Georgia, and culturally, with all these expressions of revulsion over what happened to Ahmaud Arbery, why would none of that be reflected in the trial of these three men who have been accused of murdering Arbery? It's because of the fact that in our legal system, the law that applies when you go to court is the law that existed at the time of the incidents in question. And so what we have is, in the case of the old citizen's arrest law, a law that, even though it's not on the books, will be used as a pillar in the defense strategy. And when it comes to the hate crimes law, these three men can't be charged under it because that law didn't exist at the time that they committed these acts. that they committed these acts. So for the purposes of this trial, the only thing that matters is what the law said on the day that Ahmaud Arrou was killed. Exactly. And think about this.

Here is this horrific act. It spurs landmark legislative change, and yet none of it really applies. It's just, it's a real, it's like no case I've ever covered. And so if these existing laws of February 2020 are the laws under which this case will be tried, what does that mean for the defense? How do we expect them to make their case with those laws being their North Star? expect them to make their case with those laws being their North Star?

Well, there are a few things in talking to the defense teams in this case that are worth noting. One of them is the fact that they believe, and they're going to argue, that this case really had nothing to do with race or racism at all, that it was a well-meaning attempt to keep the peace in a neighborhood that had been troubled by a bunch of property crimes. And flowing from that is this idea that the citizen's arrest law should protect these guys and that they should be seen as people who are trying to effectuate an arrest. And then that's going to be tied with this argument that the shooting was an act of self-defense. Ahmaud Arbery, this unarmed man, chased down by three men, two of whom were armed, was in fact the aggressor in this case, based on the defense's assertion that Ahmaud tried to grab Travis McMichael's shotgun. shotgun. We think they're going to say that Travis McMichael was at that point authorized to use deadly force in self-defense. And I think for a lot of people, it's going to bring to mind the 2012 incident in which George Zimmerman, the Florida Neighborhood Watch volunteer,

engaged with yet another unarmed black male, Trayvon Martin. That case went to trial in 2013. I think it was a second-degree murder and manslaughter trial. And Mr. Zimmerman beat it. He was acquitted. And there are a lot of parallels. In fact, I talked to Mark O'Mara, who is probably the best-known lawyer who was working on the defense for Mr. Zimmerman. And he thinks that these guys have a good case.

And he also pointed out some of the really parallels here that are just very difficult to escape. Here you have two cases of people arguing that they were not involved in some kind of racist hunting down of a person, but they were trying to protect their neighborhood. You also have the self-defense case that's going to be put forth

by an armed person claiming that they were threatened by the unarmed person that they were tailing. So he thinks that could be a successful legal strategy for these three guys in the same way it was for George Zimmerman. What's strange about that defense is that it turns people walking down the street, whether it's Trayvon Martin or Ahmaud Arbery, into aggressors for responding to armed men who suddenly are pursuing them. And it says that the right to self-defense of those pursuers is greater than the right to self-defense of these two men walking down the street. Well, I think that's exactly the critique that a lot of people who would like to see a guilty verdict in this case would bring. nothing other than patently absurd to assume that an unarmed black man running through a deep South neighborhood pursued by white guys with guns could in any universe be considered

an aggressor. But I think what the defense attorneys are going to do here is hope that the jury applies a very close reading of the law to that very moment where these two men begin this altercation on the hopes that they determine that there would be a threat to the lives of these white men that justified the use of deadly force. Right. It seems like the prosecution is going to have to wrestle with the citizen's arrest law as it was written originally and as it was in place when Ahmaud Arbery was killed at some point in this trial. Do you have any sense of how the prosecution plans to talk about it and to rebut the defense's argument that these three men were following that law? Well, in some of the prosecution's filings,

we see what appears to be an argument that's going to push back against the idea that this old citizen's arrest law should have been applied at all. That law said, again, that a private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge, and the offense also has to be a felony. So in court filings, you have prosecutors saying that Ahmaud Arbery was chased down by men who

were attempting to unlawfully detain him, even though, as they write, these men had not seen Mr. Arbery commit any crime on February 23rd of 2020, and they had no knowledge of any felony offense he had committed. I think prosecutors are also going to push back rather hard against the idea that Ahmaud Arbery was the aggressor. that Ahmaud Arbery was the aggressor. They also write about how Ahmaud at that moment was unable to escape what prosecutors called, quote, the strange men who were chasing him, that Ahmaud Arbery had nowhere to run. He was hemmed in by William Bryan's truck, which he was running away from, and he was running right into the trouble of the McMichaels. And at that moment, when he veers around the side of the truck, he is, according to this argument, facing two possibilities to confront the man with the shotgun, who is now standing a few feet away from him, or to turn his back on that man and risk being shot in the back. But in general, I think the people who are watching this case closely

think that the prosecution is going to also have to hope that a jury looks beyond just these very specific moments. And one thing that seems likely to come up in this case is the issue of race and the issue of racism. A number of months ago, there was a Georgia Bureau of Investigation agent who testified that William Bryant, the third murder suspect in the second truck, heard Travis McMichael use a racist slur shortly after he shot and killed Ahmaud Arbery. And this same agent has also said

that there were text messages and social media posts in which Travis Michael used racial epithets. So that could be the basis, in theory, for a prosecutorial argument that the real motive here was racism and not a citizen's arrest seeking to detain someone who these men thought committed a burglary. I think there's just this very good chance that these kinds of issues are going to be introduced at trial. And I don't know exactly how, but I think it's going to make for some very painful and very explosive moments over the course of this thing.

Mm-hmm. painful and very explosive moments over the course of this thing. Mm-hmm. But Richard, if the jury does end up supporting the defense argument that under the original law, the unchanged law, everything that happened here was legal, what will that mean?

And what will it mean to the people you saw standing in front of the courthouse or the people who went to visit that site and called it sacred ground? That's such a good question. And in some ways, if there is an acquittal in this case, it's going to feel like a rerun of these certain kinds of cases. Another case wherein it appears that the people on trial exercised at least spectacularly poor judgment and committed acts that many people would in fact find to be morally unconscionable. But nonetheless, it could end up being determined that what they did was not

technically illegal. And it's a very, it's a very, it could be a very bitter pill for people to swallow. And do you think that that pill is more bitter given the political changes that have happened in Georgia since Ahmaud Arbery and because of Ahmaud Arbery? Or might that make this pill less bitter because those changes have at least occurred? I just don't even know how to measure the bitterness. When you're down there in Brunswick, Georgia,

you're reminded that this young man is dead and he died before he could find a life partner, before he could have children, before he could find a life partner, before he could have children, that he has no opportunity to mature and to grow old. The pain is immeasurable, and I just don't know if any change to any law can really kind of serve as a balm for that kind of pain.

That justice for them in the political sphere may not be enough if they're not able to get it themselves. Yeah, I just don't know. I mean, a young man is dead and he's not coming back. Richard, thank you very much. We appreciate it. Thanks, Michael. The murder trial is expected to begin as soon as next week. Regardless of the outcome, the three men accused of killing Ahmaud Arbery will face a second trial next year

on federal charges of hate crimes. We'll be right back. Here's what else you need to know today. On Wednesday night, Democratic lawmakers had access to health care in states that refuse to adopt the Affordable Care Act, and offering paid family and medical leave to millions of Americans. In a new setback, Senator Joe Manchin of West Virginia said he opposed both the paid leave plan and a popular proposal for funding much of the bill by taxing the country's

billionaires, a proposal that Manchin said he found unfair. Today's episode was produced by Diana Nguyen, Lindsay Garrison, and Eric Krupke. It was edited by Lisa Chow, with help from Paige Cowan, engineered by Chris Wood, and contains original music from Marion Lozano and Dan Powell. Our theme music is by Jim Brunberg and Ben Landverk of Wonderly. Special thanks to Emily Cochran.

Special thanks to Emily Cochran. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.