Federal trial of Arbery’s killers is the first to ask: Was this 2020 attack motivated by racial hate?
Opening arguments are expected Monday in the hate-crimes prosecution of three White men convicted of killing Ahmaud Arbery, a landmark federal case focused on whether the defendants were motivated to chase and threaten him because he was Black.
The trial of Gregory McMichael, Travis McMichael and William “Roddie” Bryan bookends, in a way, a racial-justice reckoning galvanized by the killing of another unarmed young Black man, Trayvon Martin, a decade ago. It is the first time that defendants in one of the three high-profile 2020 killings that sparked nationwide protests have been accused directly of committing a crime based on racial animus.
The decision to put racism and hate at the center of the case against the McMichaels and Bryan — who already were convicted of murder in Georgia state court and sentenced to life in prison — has been widely applauded by civil rights advocates. They said a conviction in the federal courthouse in Brunswick, Ga., would send a strong deterrence message from the Justice Department: that hate crimes are a distinct threat because such acts can harm a broader group beyond the immediate victim.
“There were massive waves of protests demanding justice and a truthful conversation around race in our country. The fact is, it’s now 2022 and the federal hate-crimes trial is just beginning,” said Nadia Aziz, a consultant on the Fighting Hate & Bias initiative at the Leadership Conference on Civil and Human Rights. “When someone is murdered, so much is at stake for the family. But on a national scale, people also want to see accountability. That movement in 2020 wasn’t forgotten.”
But the case also represents a risk for prosecutors, who must prove that the defendants sought to intimidate Arbery, 25, on a public street because of his race. The three men argued in their state trial that they had reason to suspect Arbery of break-ins in their neighborhood.
A federal plea deal — in which Gregory McMichael, 66, and son Travis, 36, had agreed to admit to a hate-crime charge — collapsed two weeks ago after Arbery’s family objected over concerns that the two would gain more favorable prison conditions. The McMichaels subsequently affirmed their earlier not-guilty pleas; their statements related to the plea deal cannot be used as evidence in the trial.
Scores of prospective jurors were questioned over the past week about whether they could set aside any prior knowledge of the case or the failed plea agreement, a process that is slated to conclude Monday morning, with opening arguments to follow. U.S. District Judge Lisa Godbey Wood has said the trial could last up to 12 days. Arbery’s parents, Marcus Arbery Sr. and Wanda Cooper-Jones, are expected to be present in the courtroom, said S. Lee Merritt, an attorney for the family.
“The ramifications of bringing a high-profile hate-crimes case and losing it can be pretty severe. It’s not just bad for precedent, but it might encourage the bad actors you are trying to deter,” said Benjamin Wagner, who served as U.S. attorney for the Eastern District of California from 2009 to 2016. “You never know what will happen with a jury. And with a hate-crimes case, because there are other ramifications, not to mention it could result in civil unrest, you need to be thoughtful and cautious before bringing it.”
A federal grand jury indicted the three men in April 2021 on charges of intimidating Arbery and interfering with his right to use a public street because of his race, which qualifies as a hate crime, as well as attempted kidnapping. The defendants had followed Arbery, who was jogging, according to the family, in pickup trucks before Travis McMichael confronted him on the street and fatally shot him.
At the time of Arbery’s death in February 2020, Georgia was one of a handful of states without a hate-crime statute. Gov. Brian Kemp (R) signed one into law in June 2020, but by then civil rights advocates had pressed the Justice Department to intervene over what they saw as mishandling of the investigation by local authorities. Prosecutors did not bring murder charges until after a videotape of Arbery’s killing, made on Bryan’s cellphone, was leaked publicly in May 2020, prompting civil rights protests.
For local advocates, the Justice Department’s involvement marked an important backstop to the state case. Christopher Bruce, the Georgia policy director at the American Civil Liberties Union, said the circumstances of Arbery’s death carried echoes of the killing of Martin, 17, in Sanford, Fla., in 2012.
Bruce, who is Black, was a third-year law student interning at the Justice Department’s Atlanta division when he was dispatched to Florida to help with community relations after Martin’s death. He still recalls the pain and anguish in the community after George Zimmerman, a neighborhood watch coordinator who shot Martin, was acquitted on state murder charges — and the federal government declined to bring a civil rights case.
“I’m looking back now, and it’s still very triggering,” said Bruce, who was in Miami this month for an event to commemorate Martin on what would have been his 27th birthday. He said the federal prosecution will underscore the issue of racism in a way the state murder trial did not: “At a time when Georgians and those in other Southern states are going through voter suppression and looking to the federal government for help, the same is true for racial bias.”
At the Justice Department, the case represents a test of the Biden administration’s commitment to combating hate at a time of rising White nationalism. An agency analysis last summer found that U.S. attorneys declined to prosecute 82 percent of suspected hate-crime cases from 2005 to 2019, winning federal convictions in an average of 19 cases per year during that period.
In Minneapolis, three former police officers are on trial to face charges of violating the civil rights of George Floyd, two months after former police officer Derek Chauvin — convicted in state court of murdering Floyd — pleaded guilty to federal civil rights charges. But federal prosecutors did not explicitly allege a racial motivation in those cases. Minnesota officials said there was no evidence under state law to pursue a hate-crime charge in the killing of Floyd, who, like Arbery, was an unarmed Black man.
In Louisville, jury selection began last week in the trial of former officer Brett Hankison, charged with wanton endangerment in the botched apartment raid that led to the fatal police shooting of Breonna Taylor, a 26-year-old Black woman, in March 2020. He is the only person charged in the incident, though the accusations are not directly related to Taylor’s death.
Former prosecutors said federal hate-crime prosecutions require more legal firepower and greater expertise than other criminal cases, with increased coordination between U.S. attorneys and Justice’s civil rights division in Washington.
Tara Lyons, the assistant U.S. attorney for the Southern District of Georgia, is collaborating in the Arbery case with two Washington-based career officials, Christopher Perras and Bobbi S. Bernstein, who have joined her in Georgia for the trial. Perras conducted much of the government’s questioning of potential jurors.
In the state trial, prosecutors chose not to make race a central issue against the defendants, who said they followed Arbery after Travis McMichael encountered him at an under-construction home and were aware of surveillance video showing Arbery wandering through the site other times.
“If evidence about race had been introduced, it would have required a context and an explanation,” said Georgetown University law professor Paul Butler, a former Justice Department prosecutor. Though prosecutors in the state trial sought to question Travis McMichael about an allegation from Bryan that he had used a racial epithet after shooting Arbery, the issue was dropped after defense lawyers objected. Travis McMichael has denied the allegation.
Butler said Cobb County prosecutor Linda Dunikoski, facing a jury composed of 11 White people and one Black person, “knew her jury pool … way better than I did. She understood that she didn’t have to talk about race to win her trial, and it seems to me she also understood she had a better chance of conviction if she didn’t talk about race.”
Since the trial, Dunikoski has said that her emphasis on “assumptions” made by the defendants was a proxy for accusations of racial profiling. “Part of what we felt was we don’t need to say this out loud repeatedly to the jury,” she said on a podcast with former U.S. attorney Preet Bharara. “They’re going to see the video. They’re going to understand.”
Federal prosecutors, who must prove racial bias explicitly, are expected to introduce social media posts and texts from all three defendants that investigators said were racial in nature. After a joint motion from federal prosecutors and defense attorneys last week, Judge Wood agreed to seal those pieces of evidence until the government calls witnesses to the stand to testify about them — an effort to allay concerns that introducing the material earlier would lead to media coverage that could taint the jury pool.
Merritt, the Arbery family’s attorney, who has been in contact with Justice officials, said he does not believe the government has major new evidence that has not already been made public.
Former prosecutors said the government’s case appears strong, but they cautioned that convincing a jury of a defendant’s state of mind is challenging.
“There are very few crimes where the government cares what a defendant was thinking, and this speaks to being able to highlight the motive here was race,” said Stephen Gilson, a former assistant U.S. attorney in the Western District of Pennsylvania.
Gilson said the Justice Department made the right call in pursuing the hate-crimes case “given this moment in which the public is clamoring for some form of official acknowledgment of that.” But he added that “no matter how the case ends, while it may result in joy or letdown … I do not think anyone is confused about the role race played here.”
Merritt said that the Arbery family feels vindicated by the state conviction and stiff sentences — only Bryan, 52, would be eligible for parole, and only after 30 years — and that proving in court that the defendants were motivated by race is not an overriding priority for them.
But Merritt, who is running for Texas attorney general, said the government’s case is “extremely important” for civil rights advocates who expect the Biden administration to aggressively prosecute such crimes. Failure to win a conviction would be a major setback, he said, for a Justice Department that has sought to distinguish itself as more progressive on racial justice issues.
“We want them fighting these fights,” Merritt said, “and we want them winning.”