Ahmaud Arbery portrait
Ahmaud Arbery

BRUNSWICK, Ga. — The three men who murdered Ahmaud Arbery are facing trial Monday on charges that they killed the 25-year-old jogger out of racial hostility. But while a conviction appeared certain earlier in the week for two defendants, getting a jury to find them guilty will be a steep task.

While the federal trial promises to reveal a ream of evidence suggesting racial bias on the part of Travis and Greg McMichael and their former neighbor William “Roddie” Bryan in the form of text messages, social media postings and witness testimony, federal hate crime statistics show how tough it is to prove to juries that alleged racism was the main motive for violence.

arbery federal plea hearing
Marcus Arbery, his sister, both in white sweaters and their attorney Clifford Jones speaking to press outside the federal courthouse Friday. Credit: Margaret Coker/The Current GA

Members of Arbery’s family appeared resigned to the challenge after a brief court appearance that capped an unusual and dramatic week in their quests for justice against the three white men convicted of hunting down and killing the Black man two years ago. Judge Lisa G. Wood of the U.S. District Court of Southern Georgia rejected a plea agreement made between the Department of Justice and the two McMichaels amid impassioned arguments by Arbery family. The deal would have secured a conviction on the main hate crime charge against them and branded them as racists in exchange for the chance to serve their federal sentence of 30 years in a federal penitentiary instead of a Georgia prison, and Arbery’s parents urged the judge against any perceived leniency.

Without the favorable plea deal, the McMichaels rescinded their guilty pleas and decided to take their chances at trial, along with Bryan, who was never party to the plea negotiations. The fact that the McMichaels had been ready to plead guilty can’t be used against them in the upcoming court case, the judge said.

“We are putting our hope in the system,” said Clifford Jones, an attorney representing Marcus Arbery. “We know we are facing a steep road ahead.”

The breakdown of the plea agreement is highly unusual in the federal court system, where such deals are the “normal outcome” for the minuscule number of hate crimes cases that get prosecuted, due to the difficulty in proving hate as a main motive of violence, according to Phylis Gerstenfeld, professor of criminal justice at California State University, Stanislaus in Turlock, Calif.    

Prosecutions low, although hate crimes rise

Travis McMichael sits with his attorney before the start of his state court trial in the Glynn County Courthouse Nov. 9, 2021, in Brunswick (AP Photo/Stephen B. Morton, Pool)

Prosecutions under federal hate-crimes laws are exceedingly rare — less than 1% of cases even make it to court, even as incidents of violence based race, ethnicity, religion and sexual orientation rise across Georgia and America. At a time when President Joe Biden’s popularity is sinking among Black Americans, the case against the McMichaels and Bryan, their former neighbor takes on national political significance. All three were convicted of murder in a state court last fall.

The three defendants, all white, are now charged with hunting down Arbery and killing him on Feb. 23, 2020, because of the color of his skin; attempting to kidnap him, and brandishing weapons while carrying out both crimes. 

Greg McMichael looks at the gallery during the testimony of his son, Travis McMichael’s in the trial of he, his son and William “Roddie” Bryan in the Glynn County Courthouse, Nov. 16, 2021, in Brunswick. (AP Photo/Stephen B. Morton, Pool)

Government lawyers hoped to achieve a decisive conviction of the two  McMichaels ahead of the federal trial set to start Feb. 7. From the McMichaels’ points of view the deal, while branding them racists, would have allowed them to serve a 30-year sentence for the hate crime concurrently with the state murder sentence in a federal penitentiary instead of the Georgia prison system, which is considered more dangerous. Their admission to the first charge of racial animus also meant the federal prosecutors would dismiss the other charges against them.

Bryan, their co-defendant, was not part of the plea deal. His lawyer had no comment.

The perceived leniency for the McMichaels offered in the deal sparked outrage among the Arbery family members who came to the Brunswick federal court on Monday, as did a snippet  of testimony by the lead agent from the Federal Bureau of Investigations. His testimony confirmed what many Black residents of Glynn County thought to be true: Arbery’s murder on Feb. 23, 2020, highlighted the prevalence of racism in their community.

It took 74 days after Arbery’s death for any arrest warrants to be issued. Until then, the McMichaels, the police and local district attorneys wrote off the incident as a lawful shooting. 

William “Roddie” Bryan at the Glynn County Courthouse, Nov. 5, 2021, in Brunswick,. (Octavio Jones/Pool Photo via AP)

In court Monday, Travis McMichael admitted he had shared racist sentiments in text messages and social media posts. The FBI agent who led the federal investigation told the court he had found that McMichael frequently referred to Black people as “monkeys,” “savages,” and equated Black Americans with criminality.

Evidence of other alleged racist communications by the McMichaels and Bryan are currently under seal by the court. Judge Woods said those documents would be made public as soon as a jury is seated. The judge expects jury selection to be lengthy and difficult given the widespread media attention given since the Feb. 23, 2020, murder.

Arbery mother: Leniency ‘would defeat me’

Wanda Cooper Jones, Arbery’s mother, his father and other family members, said the proposed deal was made without their approval and each made tearful pleas on Monday to Judge Wood to reject it.

Please listen to me,” Jones told the judge. “It is not fair to take away this victory that I prayed and I fought for. It is not right. It is not just. It is wrong. Granting these men their preferred conditions of confinement would defeat me. It gives them one last chance to spit in my face after murdering my son.”

Ahmaud Arbery’s mother Wanda Cooper-Jones reacts as Superior Court Judge Timothy Walmsley sentences Greg McMichael, his son, Travis McMichael, and a neighbor, William “Roddie” Bryan in the Glynn County Courthouse, Jan. 7, 2022, in Brunswick. The three white men who chased and killed Ahmaud Arbery were sentenced to life in prison. (AP Photo/Stephen B. Morton, Pool)

The judge, who heard  more than an hour of fact-finding and testimony before rejecting the plea deal, cited the tight sentencing parameters that the deal forced upon her. She also appeared moved by the Arberys’ pleas. Under the deal, the McMichaels would have received a 30-year sentence to be served concurrently with their state murder charges in a federal prison.

“If I accept it, it locks me in to that sentence,” she said of the plea deal, adding that she believed the victims of the crime deserved more say about the sentencing.

The lead U.S. prosecutor in court Monday, Tara Lyons, was clearly caught off guard by the impassioned arguments by the Arbery family against the path she believed would help lead to justice and healing.

Lyons told the court about her anxieties as a Black mother about racist attacks and her understanding of the Arbery family’s anguish about their son’s killing.

But she also stood by the deal, saying it would further justice in several key areas namely that the federal hate crimes conviction could likely count against the McMichaels as they appeal their state murder conviction. She said the government entered the plea deal after assurances from the Arbery family lawyers that it would not be opposed.

How the plea fell apart

In a statement late Monday afternoon, the head of the Civil Rights Division of the U.S. Department of Justice, which brought the case, backed up that assertion. 

“Before signing the proposed agreement reflecting the defendants’ confessions to federal hate crimes charges, the Civil Rights Division consulted with the victims’ attorneys. The Justice Department entered the plea agreement only after the victims’ attorneys informed me that the family was not opposed to it,” Assistant Attorney General Kristen Clarke said.

Ahmaud Arbery’s father Marcus Arbery, center, sits in the courtroom with other family members during the sentencing of Greg McMichael, his son, Travis McMichael, and a neighbor, William “Roddie” Bryan in the Glynn County Courthouse, Dec. 7, 2022, in Brunswick. (AP Photo/Stephen B. Morton, Pool)

Lee Merritt, a civil rights lawyer who represents Arbery’s mother, disputed the government’s account. He said the family rejected a proposed plea deal offered at the start of January and after that had stopped communicating in detail with lawyers from the Department of Justice’s Civil Rights Division responsible for the case.

In the U.S. federal court system the government can offer a plea deal to avoid trial or lighten a defendant’s sentence, but only a judge can decide punishment, even if federal prosecutors recommend a sentence, according to the Justice Department.

Georgia: crimes due to race, ethnicity rising

The establishment of hate crimes statutes began with the passage by Congress of the Civil Rights Act of 1968. Today, the federal government defines a hate crime as one “motivated by bias against race, color, religion, national origin, sexual orientation, gender, gender identity, or disability.”

U.S. attorneys investigated a total of 1,864 suspects in matters involving violations of federal hate-crime statutes during fiscal years 2005 to 2019, the Bureau of Justice Statistics reported in July 2021.

But the record of bringing perpetrators of those crimes to justice is abysmal.

Authorities declined to prosecute 82% of suspects, prosecuted 17% and disposed of 1% for prosecution by U.S. magistrates. “Insufficient evidence” was the most common reason hate crime matters were declined for prosecution.

In Georgia, hate crimes prosecutions are almost nonexistent. Until Arbery’s murder, Georgia was one of only four states without a hate crimes statute — the main motivation for the federal prosecutors to charge the McMichaels and Bryan with this heinous crime.

Between 2018 to 2020, the last year for which statistics are publicly available, Georgia had a sharp increase in hate crimes, including a five-fold increase in crimes directed at people or property because of race, ethnicity, or ancestry. The second most common motivation for reported hate crimes in the state was religious bias, followed closely by sexual orientation.

The Southern District of Georgia, which includes Savannah, filed four civil rights cases in 2018; two in 2019; none in 2020; and one in 2021. It is not clear which of those, if any, involved alleged hate crimes. The Middle District of Georgia, which encompasses 70 counties, did not indict any hate crime cases in 2021, said a spokeswoman for the court, Pamela Lightsey. She added, however:

“We have, however, conducted a number of outreach events with community stakeholders in this very important area to include meeting with the leadership of the Columbus, Ga., branch of the NAACP, training with religious and faith leaders through a virtual ‘Protecting Houses of Worship’ summit that was open to leaders from all religions and denominations, and the Anti-Defamation Leagues’ Center on Extremism among others.”

Margaret Coker is editor-in-chief of The Current GA, based in Coastal Georgia. She started her two-decade career in journalism at Cox Newspapers before going to work at The Wall Street Journal and The...