Travis McMichael, Greg McMichael, Willam "Roddie" Bryan Credit: Court pool photos

Criminal law experts predict that when the three men convicted in Georgia state court over Ahmaud Arbery’s shooting death stand trial in February on federal hate crime charges, the way prosecutors attempt to add new convictions is sure to focus more on racism as a motivation than last month’s trial.

This story also appeared in Georgia Recorder

Gregory and Travis McMichael, along with their neighbor William “Roddie” Bryan, are expected to learn in the coming weeks whether the mandatory life sentences they’re about to serve for the murder of 25-year-old Arbery will come with consideration of parole at some point. But while the state’s case that played out over the course of the monthlong trial in Brunswick captured the nation’s attention, the federal case for hate crime charges will place much more emphasis on whether Arbery’s skin color helped motivate the three white defendants to chase him down in pickup trucks and kill him.

The federal hate crime trial, which includes charges of murder, kidnapping attempts and other violence, is set to begin on Feb. 7 at the Brunswick U.S. District Court Southern District of Georgia courthouse, nearly two years after Arbery was shot at close range.

Unlike the state case, where most of the debate about how much to inject race took place during motion hearings and not in front of the jury, the twelve people chosen to consider charges against the men in the federal courtroom could hear some of the more inflammatory testimony.

The federal judge will likely allow the jury to hear discussion about the images of Travis McMichael’s pickup truck featuring Confederate imagery on the front license plate as part of the old Georgia flag. A Georgia Bureau of Investigation special agent testified at a June 2020 bond hearing that Bryan claimed Travis McMichael yelled an obscenity and racial slur after the fatal shooting.

When Cobb County Assistant District Attorney Linda Dunikoski led the state’s case, her main strategy was to unravel Travis McMichael’s legal defense that he shot Arbery in self-defense when Arbery grabbed his shotgun after being chased for five minutes in the Satilla Shores subdivision, said Mike Lawlor, an associate professor of criminal justice at the University of New Haven.

In the federal trial, the heavily resourced U.S. Department of Justice’s arguments will boil down to whether Arbery was targeted because he was Black, which wasn’t as relevant given the charges in the state’s case, Lawlor said. 

“With the federal prosecution not only do they have to prove beyond the reasonable doubt that these guys did what they did, but more importantly they have to prove they were motivated by race and that’s the hardest thing to prove,” Lawlor said. “To me it’s obvious, but you need to prove it beyond reasonable doubt with actual evidence.”

“In the state’s case it really wasn’t that relevant given the charges,” Lawlor said. “And also the state prosecutor was aware that there’s also a federal prosecution that will play out and in that trial, race will be the central focus.”

The attorneys representing the McMichaels and Bryan have said they are planning to appeal the convictions in the state’s case in the coming days.

The McMichaels were convinced they were doing the right thing when they pursued Arbery Feb. 23, 2020, said Travis McMichael’s attorney Jason Sheffield soon after Superior Court Judge Timothy Walmsley announced the guilty verdict.

The day before Thanksgiving, a nearly all-white Glynn County jury found Travis McMichael, who shot Arbery, guilty of all nine counts ranging from malice murder to criminal attempt to commit a felony. His father, Greg McMichael, was convicted on eight of nine counts while Bryan who also chased Arbery in his pickup truck while recording on his phone, was convicted of five of eight charges including three felony murder charges.

“These men are sorry for what happened to Ahmaud Arbery,” Sheffield said outside the courthouse. “They are sorry he is dead. They are sorry for the tragedy that happened because of the choices they made to go out and try to stop him.”

The racial makeup of the jury could also hamper the defense attorneys’ appeals  chances since they will be hard-pressed to argue the jury was racially biased, Lawlor said.

About 1,000 juror candidates were summoned to hear the trial that started Oct. 18., with the pool trimmed to one Black person and 11 white people. 

The release of Bryan’s cell phone video showing Arbery’s last moments sparked an outcry for justice because it showed the killing of an unarmed Black man in a racially divided coastal Georgia community. In response to the video showing Travis McMichael firing a shotgun into Arbery, the Georgia Bureau of Investigation took over a case where initially a Brunswick district attorney agreed Georgia’s since-revamped citizen’s arrest law justified the McMichaels’ actions.

Arbery’s death later prompted state lawmakers to pass Georgia’s first hate crimes law and then overhaul the state’s citizen’s arrest law

When the state trial came to a close, Travis McMichael’s testimony took center stage. He described how he followed his training from the U.S. Coast Guard to question Arbery about what he was doing in the neighborhood. Travis McMichael said he wanted to make a citizen’s arrest after spotting Arbery at several locations at a home under construction in a neighborhood on edge about property crime. And he claimed he feared for his life in the moments before he pulled the trigger.

Travis McMichael’s testimony also will be significant in the federal case after the self-defense claim put pressure on him to take the stand in the Superior Court courtroom, said Chad Posick, criminal justice and criminology professor at Georgia Southern University.

“Most of the time (defendants testifying) can only be bad because they can only get themselves into more trouble once they’re cross examined,” Posick said. “So, it was interesting to see that play out with the prosecutor in the state case.”

Posick said the federal trial may provide an add-on of longer sentences if any of the defendants are eligible for parole from their state convictions.

“I think the federal judge, if they are found to have committed a hate crime, is going to increase the severity of that sentence,” Posick said. “A lot of people always ask me if that’s double jeopardy, like, are they getting tried twice for the same crime? That’s no. You can be charged at the state level and at the federal level, just like you can get charged in criminal court in civil court.”

The convictions mark the culmination of 18 months of Arbery family pressure to deliver justice after Arbery’s killers were spared arrest for weeks after police responded to the bloody street shooting.

It’s likely that the racial motivation of Arbery’s murderers will be brought up during the state’s recommendation for sentencing, where prosecutors could use that to obtain a stiffer sentence, Posick said.

All three could die in prison.

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