A federal hate crimes case against the three white men accused of killing a 25-year-old Black man in Glynn County is a significant blow to the defendants’ chances to avoid punishment in the highly publicized case, legal experts said.
The U.S. Department of Justice announced Wednesday that a federal grand jury indicted Travis McMichael, 35, his father Gregory McMichael and William “Roddie” Bryan on attempted kidnapping charges and committing racially motivated hate crimes related to Ahmaud Arbery’s death.
The federal case now runs parallel to the state proceedings as the defendants await a trial date on state charges of murder, aggravated assault, false imprisonment, and criminal attempt to commit a felony.
Georgia State University law professor Russell Covey said the likely principal motivation for the federal hate crime charges is because Georgia did not have a similar law on the books when the shooting occurred on Feb. 23, 2020.
The federal hate crimes statute would come with a potential life sentence if it were committed during a crime that resulted in a death. The federal involvement also “provides a backstop for in case something goes awry” in the state’s prosecution, Covey said.
The McMichaels also face federal firearm charges.
“This would concern me because you’re not confronting only a committed state prosecution, but it’s the full magnitude of a federal prosecution as well,” Covey said. “The Department of Justice is well resourced and are very good prosecutors, so this certainly just makes the case all the more daunting from the defense perspective.”
The U.S. District Court indictment says evidence shows that Arbery’s race played a factor as the McMichaels and Bryan illegally attempted to stop him while running down a suburban Brunswick street.
The McMichaels chased Arbery in a pickup truck while yelling at him and Bryan attempted to cut off Arbery as he filmed the encounter from another vehicle.
Video footage shows a shotgun-toting Travis McMichael getting out of his truck and confronting Arbery before deadly shots struck Arbery moments later. The 65-year-old Gregory McMichael “used, carried, and brandished” a .357 Magnum revolver during the struggle, the federal indictment states.
The Georgia Bureau of Investigation took over the case in spring 2020 after the public release of footage depicting Arbery’s death. Local prosecutors initially used the state’s citizen’s arrest law as justification for the killing.
The shooting death spurred a bipartisan effort by legislators to pass a historic hate crimes law in 2020, followed by repealing the state’s archaic citizen’s arrest law this year. Arbery’s death also sparked protests calling for racial justice in Georgia and the rest of the nation.
In a statement this week, Travis McMichael’s attorneys discredited the federal charges based on the false premise from prosecutors and media, while also ignoring their client’s right to try to detain someone he suspected of committing burglaries.
And Bryan’s attorney, Kevin Gough, told media outlets this week that he’s looking forward to his client being acquitted of crimes he says he did not commit.
A GBI investigator testified during a 2020 hearing that Bryan said he overheard Travis McMichael using a racial slur against Arbery.
Chad Posick, criminal justice and criminology professor at Georgia Southern University, said it’s likely there will be an uptick in hate crime cases as more federal prosecutors scrutinize a law that many states have not done a good enough job of enforcing.
“I think we’re gonna see more of these types of cases moving forward as we’re starting to understand the racialized nature of some of these crimes,” he said.
The federal and state courts can have similar investigations underway without falling under double jeopardy prohibiting someone from being prosecuted twice for the same offense.
And as the Arbery case plays out in the U.S. District Court, even if the defendants aren’t found guilty of committing a racially biased crime, they could still face stiff time if convicted of kidnapping and false imprisonment, Posick said.
“If you look at the evidence, these three men basically cut off Arbery’s movement, so he could not freely go where he should have been freely able to go,” he said.
Damon Hewitt, acting president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said the federal case is a step in the right direction of holding Arbery’s killers accountable.
“As this case moves forward, we will be watching to see if the justice system can demonstrate that it values Black life by holding these perpetrators accountable for their despicable actions,” Hewitt said in a statement.
Two other highly-publicized cases – Dylann Roof’s 2015 mass shootings targeting a Black church in South Carolina and the Michael Vick dogfighting investigation – also became instances where federal prosecutors became involved in investigations with state interests, Covey said.
In 2017, Roof became the first person in the U.S. to be sentenced to death for a federal hate crime for the Charleston, S.C., church massacre. Roof also pleaded guilty in state court and received nine consecutive life sentences.
In 2007, Atlanta Falcons star Vick entered a guilty plea in federal court for his role in a dogfighting ring long before any Virginia state charges were levied.
“Part of the motivation for the feds to get involved is if they don’t think the federal interests are going to be adequately represented or enforced by the state,” Covey said. “I think that that’s the same concern that that is motivating the federal charges in this case.”
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