February 23, 2020 seemed like any other Sunday afternoon in Brunswick County, Georgia. Ahmaud Arbery, a 25-year-old Georgia native, strapped up his shoes to go for his afternoon run as he has done countless times. A South Georgia Tech College student and 2012 Brunswick High School football graduate hit the pavement running in his neighborhood, a passion his family, his community, and we all will remember him for. But that day was like no other. Arbery will never be able to tell us how a jog turned to a run for his life. How two trucks tracked him down, block, after block, after block. With men, wielding guns and screaming “STOP! STOP!” It is a fear most black men only know from their grandparent’s stories, handed down from their parents. We will never know what Ahmaud thought as flight turned to fight, as the same truck blocked his path for the third time. This time, with a man in the back of the truck wielding a pistol and another outside the truck holding a shotgun as a second truck followed from behind. How much longer could he run? Should he turn his back to them and risked getting shot? Or is this when he fights for his life? Sadly we know the answer and the outcome.
Now the name Ahmaud Arbery reignites the fire of injustice that flickers in some and roars in others. That fire is seen in many ways; #IRunWithMaud, the running of 2.23 miles in honor of the day Ahmaud was killed, demands for justice from the criminal justice system and this opinion piece.
As a Brooklyn public defender and host on the Law&Crime Network looking at the case from the outside in, it is clear that months after Ahmaud’s death the national conversation of unarmed people of color being killed with no justice is here… again. There have been countless failures by the local and state authorities in the handling of this homicide, but as the video of Ahmaud’s death was leaked and went viral, Georgia heard our collective voice and the wheels of justice have made their first move: Travis McMichael, 34, and Gregory McMichael, 64, were arrested.
Here is what you need to know about how we got to this point, why it took so long, and what we can expect going forward.
Background
Arbery was 25 years old when he was fatally shot to death while out on an afternoon jog. Arbery was a Georgia native. He played football at the Brunswick High School where he graduated in 2012. While in high school he was arrested for carrying a firearm on campus and obstructing law enforcement. As a first time offender, he was sentenced to 5 years of probation. He violated his probation when he was charged with shoplifting in 2018, but since then was neither arrested nor accused of any crimes; his record has no bearing on his death. He attended South Georgia Technical College where he studied to be an electrician. His family recalls that he stayed true to his athletic roots and that he loved to run near his home just outside of Brunswick, Georgia in order to stay in shape.
Arbery’s Death
According to the Glynn County police report, by 1:08 p.m. on Sunday, Feb. 23 Arbery lay dying on the streets of the Satilla Shores neighborhood fatally bleeding out from multiple gunshot wounds. It wasn’t until May 5 that we learned what the Glynn County Police Department was told by their “witness” Gregory McMichael: while sitting on his front porch he saw the “suspect” “hauling ass” down Satilla Drive towards Burford Drive. He told police that Arbery looked like the suspect of multiple break-ins that was caught on surveillance footage in the neighborhood. While it was not investigated at the time, a review of the police reports in that area showed that Gregory’s statement was false. Gregory went inside, and hollered to his son Travis McMichael: “Travis the guy is running down the street lets go.” Gregory grabbed his .357 magnum from his bedroom, Travis grabbed his shotgun, and the two leapt into their truck and took off after Arbery. Gregory told police they grabbed weapons because they didn’t know if the man was armed. It’s unclear how or when, but at some point William “Roddie” Bryan joined the posse in a second truck. Based on the video, he appeared to be pursuing Arbery as well.
The McMichaels got to the intersection of Satilla Drive and Holmes Drive where they saw their “suspect” running down Burford. Per the police report, Travis drove down Burford attempting to cut Arbery off but was unsuccessful because Arbery turned around and ran back in the direction he came. Roddie was also allegedly unsuccessful in trying to cut Arbery off. Failing twice, Gregory got out of the car and leapt into the bed of the truck with his .357 magnum, and the three continued their pursuit to Holmes Drive trying cut Arbery off a third time. Gregory claimed that he shouted out to Arbery “stop, stop, we want to talk to you.” According to Gregory, they pulled up beside Arbery and shouted again to stop, then Travis exited with his shotgun. The video shows this is untrue.
Gregory told the officer Arbery violently attacked Travis and the two fought over the shotgun, and that’s when the shotgun fired. The video tells a different story. A second shot fired and Arbery fell face first on the pavement. The McMichaels searched Arbery for weapons (there were none). And that is all the officer wrote of the McMichaels’ statement on Feb. 23.
It was not known at the time, but a review of the past police reports showed multiple flaws in the McMichaels’ belief that Arbery was the man they were looking for. Between Nov. 1 and May 5 the area only had two reported incidents of theft or trespass on Burford Road, Holmes Road, Satilla Drive and Zellwood drive (the McMichaels’ neighborhood). Both reports came from Travis McMichael. On January 1, 2020 at 11:05 a.m., Travis McMichael reported that someone entered his 2011 Ford F-150 and stole his S&W 9mm pistol, leaving just the holster. On February 11, 2020, 7:30 p.m. Travis McMichael reported a trespass on 220 Satilla Road (the property referenced on the 911). In the trespass report, Travis described the man as a light-skinned black male, slender build, 5’10”-6”, both arms look to be covered in tattoos, 3-inch to 4-inch “twists/dreads hairstyle.” The report said that the man was caught on camera and that he was the same man caught on previous videos. The report continued by saying that the male was only trespassing and nothing has been taken. Lastly, the video and picture of this man were distributed to the neighborhood social media page.
Investigation
Multiple officers reported to the scene that afternoon. A narrative was given by Gregory. They recovered video from Roddie Bryan. There were two 911 calls. An autopsy was done. And photos were taken.
The first 911 call was moments before Ahmaud Arbery was shot. The person claims they saw a black male in a white shirt looking into a house on 219 or 220 Satilla Drive that was under construction then he ran down the street. The 911 operator asks “What is he doing wrong” parts of the callers statements are inaudible but he replies “He’s been caught on camera a bunch before at night. Its’s kind of an ongoing thing out here.” The 911 operator says police are coming to the scene and the call ends.
On Saturday, May 9, civil rights attorney S. Lee Merritt tweeted a letter from himself and attorneys Ben Crump and L. Chris Stewart. The lawyers said that they had reviewed new surveillance video that showed a person, believed to be Ahmaud Arbery, entering a property under construction.
The person remained in the home for three minutes before they continued jogging. The person did not do anything illegal on the property. Nothing was damaged or stolen and no one told him to leave. The actions of the person did not amount to a felony under Georgia law (a crucial point because you can’t use deadly force to stop the commission of a misdemeanour in Georgia). Finally, Ahmaud was not armed, had no drugs in his system and did not commit any felonies, meaning, even if the McMichaels saw him in the construction site their actions would not be justified.
The second 911 call appears to be made by Gregory. During the call he is panting as he explains there is a “Black male running down the street.” Gregory then yells, “Stop that damn it, stop! Travis!” Currently, we cannot tell when the call was made in relation to the shooting.
It was not reported until May 8, but according to Allen Booker and Peter Murphy, two Glynn County Commissioners, the officers at the scene, the ones who had done the investigation, felt they had enough probable cause to arrest Travis and Gregory at the scene. However, when the officers called to say the had probable cause to arrest without a warrant Brunswick Judicial Circuit District Attorney Jackie Johnson’s office, “shut them down to protect her friend McMichael.” Murphy added, “they were told not to make the arrest.”
The belief is that DA Jackie Johnson was protecting one of her own, as Gregory McMichael is not only a retired Brunswick County Police Officer, but was also an investigator in the Brunswick Judicial Circuit District Attorney’s Office.
District Attorney Jackie Johnson
Shortly arrest Arbery’s death, District Attorney Jackie Johnson recused herself because of the obvious ties she had to the McMichaels.
District Attorney George Barnhill
The second District Attorney investigating Arbery’s homicide was Waycross County District Attorney George E. Barnhill. DA Barnhill eventually recused himself due to the advocacy of Arbery’s mother, Wanda Cooper Jones. She argued that DA Barnhill’s son works in the Brunswick DA’s office and thus there was a conflict of interest. DA Barnhill begrudgingly agreed. But not before he wrote two letters. One to the Glynn County Police Department and another to Georgia Attorney General Chris Carr.
The letter to the Glynn County Police Department explained that he contacted the Georgia Attorney General Office to help find another District Attorney to investigate the case and followed with five points as to why he saw no probable cause to arrest. Frist, DA Barnhill lists his credentials and states his opinion is supported by the Senior Trial Attorneys in his office. Second, the autopsy confirms what is seen in the video, photos and witness at the scene. That together, they produce no probable cause to arrest. Third, DA Barnhill briefly recounts the facts of that afternoon, concluding that the actions of the three men were “perfectly legal” under Georgia law, cited OCGA 17-4-60 Private Citizen’s Right to Arrest. Next, that the McMichaels were legally carrying firearms under OCGA 16-11-126 Open Carry Law. Lastly, DA Barnhill recounts the video in detail adding his own commentary. Like that the shot to Arbery’s right palm is consistent with grabbing and pulling a shotgun, and not perhaps reaching out to defend yourself from an assailant. Or that Arbery initiated the fight with Travis and Gregory, ignoring the McMichaels admit to chasing and to cutting Arbery off twice before the fight. Lastly, DA Barnhill believes that “Arbery’s mental health records and prior convictions” explain his “apparent aggressive nature and his possible thought pattern to attack armed men.” DA Barnhill ends by reiterating there is insufficient probable cause for an arrest warrant and reserves a decision to present the facts to a grand jury.
The letter to Georgia AG Carr wrote of the relationship between Gregory and his son. That his son and the then-investigator worked in the same office and “both helped with the previous prosecution of [Ahmaud] Arbery.” DA Barnhill wrote that McMichael claimed to have recognized Arbery from surveillance video that captured a recent burglary and that he planned to make a citizen’s arrest. The letter recounts Arbery’s latest arrest, for carrying a weapon on campus, as being when he was in high. DA Barnhill ends the letter by explaining that he learned of his son’s and Gregory’s ties to Arbery, “three to four weeks” earlier.
Citizen’s Arrest
What is OCGA 17-4-60 Private Citizen’s Right to Arrest? The Official Code of Georgia Annotated 17-4-60 says “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 .” But what does that mean? Like all statues in the country judges help to define the terms in the statute and distinguish what actions are to be included or excluded.
The right for a citizen to arrest is a shifting burden. When Georgia accuses you of a crime, for example, assault or unlawful imprisonment, this affirmative defense is a defendant admitting to the actions they are accused of, but are asserting there is a legal reason they should be excused. The defendant has the initial burden at court to present facts that support a citizen’s right to arrest, then the state must disprove that defense while proving every element of the charge beyond a reasonable doubt.
There are many cases on a citizen’s right to arrest, many are store owners or employees stopping a thief in their store or a burglary in their home so that the police arrest the suspect.
DA Barnhill’s view of OCGA 17-4-60 is flawed. A case called Prayor v. State (214 Ga. App. 132, 1994 so those who want to read it) is similar to Travis and Gregory’s potential trial and shows why the right to citizen’s arrest doesn’t apply. Prayor was at home when he saw a 15 year old break into his truck. Prayor ran outside and chased the teen away. He ran inside, called 911, got his .357 magnum, entered his car, and cornered the teen in a nearby school. Inside the school, Prayor commanded the teen to stop, but he did not respond. The defendant admitted to shooting a “warning shot” that hit the teen in the back and paralyzed him. On appeal, the Supreme Court of Georgia ruled the conviction was correct ruling the right to make a citizen’s arrest did not apply. In the decision the court said, “[i]n this case, the defendant’s life was never in danger, he had already called the police, and he reinitiated the chase after retrieving a gun from his home.”
Stand Your Ground
DA Barnhill has argued Travis had the right to defend himself. However, OCGA 16-3-21 says that you have to be defending yourself from “imminent use of unlawful force.” Arbery’s was within his right to defend himself from an “armed posse” chasing him on his afternoon run. Also, you may only use deadly force if “he or she reasonably believes such force is necessary to prevent death or great bodily harm.” It would be unreasonable for Travis to believe that based on the video. Lastly, you cannot claim self-defense if you are the person who “initially provokes the use of force against yourself with the intent to use such force as an excuse to inflict bodily harm upon the assailant.” Contrary to DA Barnhill’s view of the video, chasing a man with your father and a neighbor with a shotgun and a .357 would fall under this exception to self-defense.
Video Leak
On May 5, few people heard of Ahmaud Arbery and even fewer saw the final moments of his life. The person who recorded the video was Roddie Bryan, the third person in the second vehicle pursuing Arbery. He is under investigation but has not been charged.
Alan Tucker, a lawyer who had consulted with the McMichaels gave the video to a local radio show. Why? Tucker said “It wasn’t two men with a Confederate flag in the back of a truck going down the road and shooting a jogger in the back,” also “I got the truth out there as to what you could see,” adding, “My purpose was not to exonerate them or convict them.”
From there, the entire country turned its eyes on the small costal county of Brunswick County, Georgia.
Public Outcry
The public outcry had no race, religion or political party as everyone commented in varying ways. President Donald Trump said “I saw the tape, and it’s very, very disturbing. The tape. I got to see it. It’s very disturbing,” adding that he had faith that Georgia Gov. Brian Kemp would do “the right thing.” Likely Democratic presidential nominee Joe Biden tweeted, “The video is clear: Ahmaud Arbery was killed in cold blood.”
“My heart goes out to his family, who deserve justice and deserve it now. It is time for a swift, full, and transparent investigation into his murder.” Gov. Kemp tweeted. “Georgians deserve answers.”
Former Georgia House minority leader Stacey Abrams tweeted, “our systems of law enforcement and justice must be held to the highest standards: full investigation, appropriate charges and an unbiased prosecution.” Even Lebron James tweeted, “We’re literally hunted EVERYDAY/EVERYTIME we step foot outside the comfort of our homes! Can’t even go for a damn jog man! Like WTF man are you kidding me?!?!?!?!?!? No man fr ARE YOU KIDDING ME!!!!! I’m sorry Ahmaud (Rest In Paradise) and my prayers and blessings sent to the… heavens above to your family.”
Georgia Bureau of Investigation and DA Tom Durden
After the recusal of two District Attorneys, DA Tom Durden of Georgia’s Atlantic Judicial Circuit in collaboration with the Georgia Bureau of Investigation (GBI) continued the investigation. After 36 hours of GBI involvement, arrest warrants for Travis and Gregory McMichael were executed.
Arrest and Charges
Seventy-four days since the deadly shooting and the day before Ahmaud Arbery’s 26th birthday, Travis and Gregory McMichael were arrested on charges of felony murder and aggravated assault. Felony murder, the unlawful killing with malice, is a crime punishable by the death penalty. Aggravated assault, which includes the assault with a deadly weapon, is punishable by up to 20 years. Since Gregory is not the one who pulled the trigger, he is charged with aiding and abetting felony murder and aggravated assault and faces the same penalties as Travis.
No State Hate Crime Charges
Many have insinuated that this is a hate crime. However, are two problems. First, Georgia is one of four states that does not have a hate crime statute. Second, even if they did, it is unlikely that this would be a hate crime.
Race is 100-percent a factor in the killing of Ahmaud Arbery. Few can argue Arbery would have died if he was white. Few can argue that the McMichaels would have been free for almost three months if they were not white. But those are issues of prejudice, racial profiling, cross racial identification and a county that appears to be more concerned about taking care of its own than upholding justice. I’m a black immigrant public defender who has had to walk the long way to get home to avoid a Confederate flag parade in Lexington, Virginia, been spat at and called a n*gger by an adult as an 11-year-old. I’ve also defended a client to a full acquittal in a hate crime trial in Brooklyn, New York. The facts of this case do not rise to a hate crime. Taking the stance that Travis and Gregory McMichael should not be prosecuted for a hate crime is not a suggestion that we should remove the issues of race from the murder of Ahmaud Arbery. Rather, it is to focus on the goal of seeking justice in the court in an unjust killing.
For example, take New York State Penal Law 485.05. The law says:
A person commits a hate crime when he or she commits a specified offense and either:
(a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or
(b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.
With all of the facts that we at this moment, it appears that the McMichaels were emboldened by a belief that they could pursue a burglary suspect in their neighborhood and under the mistaken belief that Arbery matched the description of a 5’10”- 6” light-skinned black male with 3-4 inch twists or dreadlocks. It is not evident that they intentionally selected Ahmaud because of his race. While there are many race, racial and racist issues in this case, to mistakenly prosecute this solely as a hate crime devalues those who are victims of actual hate crimes and creates a hurdle the prosecution may not be able to overcome, resulting in men potentially walking free if a defense attorney can persuade a jury this is about a burglary and not race.
Bond Refusal
May 8, 2020, Travis and Gregory were denied bond by Glynn County Magistrate Judge Wallace Harrell via Skype. That means the McMichaels will stay in jail until and unless: there is a change in their bail and someone pays it; the grand jury votes that they did not commit a crime; they stand trial and are found not guilty.
Investigation of William “Roddie” Bryan
According to GBI the investigation into the death of Arbery is ongoing, and more charges could be issued for the third individual in the second truck who recording the incident. Arguably, Gregory and Roddie Bryan did the same thing. They were with Travis when he killed Arbery. Gregory told police that “Roddie” attempted to cut Arbery off with his vehicle. When Bryan start following Arbery? For how long? What else did he do? What was said between Bryan and the McMichaels can all be used against him to say that he aided and abetted in the crimes of felony murder and aggravated assault.
OCGA 16-2-21 Trial and Conviction of Parties who did not Directly Commit the Crime says “Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto, although the person claimed to have directly committed the crime has not been prosecuted or convicted, has been convicted of a different crime or degree of crime, or is not amenable to justice or has been acquitted.”
Without more facts, there are valid arguments on whether or not Bryan was an accomplice.
Effect of COVID-19
Typically a grand jury would come together to vote on whether or not the prosecution has presented enough evidence that the defendants more than likely committed a crime without a valid defense. However, due to the Gov. Kemp order, a similar order across the nation, no grand juries will be convening due to social distancing requirements. The schedule date for grand juries to come back to court is June 12.
What’s Next
The McMichaels won’t be going anywhere anytime soon. But investigations into William Bryan will continue. Many are asking about the District Attorneys that recused themselves. How could the GBI see probable cause in 36 hours that DA Johnson and DA Barnhill couldn’t in 74 days? Also, there are reports that DA Johnson told the Glynn County police not to make arrests. Why? What happens to her? These questions and more lead us to ask, “Where is the DOJ?”
[Image via Sean Rayford/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.
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