By KATE BRUMBACK and RUSS BYNUM (Associated Press)
ATLANTA (AP) — The lawyers for three white men who chased and killed Ahmaud Arbery in a Georgia neighborhood requested a federal appeals court on Wednesday to invalidate their hate crime convictions. They argued that the prosecutors used their history of racist comments as evidence without proving that they specifically targeted Arbery because he was Black.
“At the end of the day, the issue isn’t about the racism of these defendants,” stated A.J. Balbo, who represents Greg McMichael, to a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta. “It’s about whether or not the government proved its case.”
Their arguments also went beyond the main issue of whether they had a racist intention when they pursued and killed Arbery on February 23, 2020. The defense attorneys brought up legal technicalities, including their claim that the prosecutors failed to prove that Arbery was killed on a public road.
The federal prosecutors responded by saying that the jury in 2022 heard enough evidence to find the three men guilty of hate crimes and attempted kidnapping. They argued that the racist views expressed in the men’s previous text messages and social media posts led them to wrongly assume that Arbery was a fleeing criminal.
“The hate-fueled violence inflicted on Ahmaud by the defendants is exactly the kind of behavior that Congress aimed to address when it passed the Civil Rights Act,” said Brant Levine, an attorney for the Justice Department’s civil rights division.
Father and son Greg and Travis McMichael armed themselves with guns and used a pickup truck to chase Arbery when they saw the 25-year-old man running in their neighborhood outside the port city of Brunswick. A neighbor, William “Roddie” Bryan, joined the pursuit in his own truck and recorded cellphone video of Travis McMichael shooting Arbery at close range with a shotgun.
More than two months went by before arrests were made, until Bryan’s graphic video of the killing was leaked online and there was a national outcry over Arbery’s death. The Georgia Bureau of Investigation took over the case from local police and charges followed soon after.
All three men were found guilty of murder in a Georgia state court in late 2021, and then convicted of federal hate crimes several months later.
In their oral arguments and legal briefs, Greg McMichael and Bryan's lawyers referenced the prosecutors’ use of over two dozen social media posts and text messages, as well as witness testimony, that showed all three men using racist slurs or other derogatory language about Black people.
Bryan’s lawyer, Pete Theodocion, described it as “some of the ugliest, most repulsive evidence any of us have ever heard in a trial,” and impactful enough that prosecutors could influence a jury without proving a racist intention to harm Arbery himself.
“When the jury hears that evidence, we have to make sure that the government is actually presenting some evidence as to all the essential elements of crimes because it is such an uphill battle,” Theodocion told the judges.
Balbo stated that Greg McMichael started chasing Arbery because he wrongly thought he was a fleeing criminal. He had seen security camera videos in previous months that showed Arbery going into a nearby home that was being built.
When Arbery ran past the McMichaels’ home in February 2020, Balbo argued, Greg McMichael recognized him from those videos “by his height, his weight, his tattoos, his manner of dress.”
“If this person had been a 60-year-old Black man, Greg McMichael would not have engaged him,” Balbo said. “The race was a non-contributing role in this matter.”
One of the judges sounded skeptical. Judge Britt Grant, appointed to the appeals court by former President Donald Trump, said the trial evidence of racist intent behind Arbery’s killing “seems pretty overwhelming to me.”
None of the videos showed Arbery stealing, and police found no stolen property or weapons on his body.
Judge Elizabeth “Lisa” Branch, another Trump appellate court nominee; and District Court Judge Victoria Calvert, who was nominated by President Joe Biden to the federal bench and is serving temporarily on the 11th Circuit, also heard the arguments. The judges did not indicate how long they might take to rule.
The legal technicalities raised by the defense included Travis McMichael’s attorney, Amy Lee Copeland, arguing that prosecutors failed to prove the streets of the Satilla Shores subdivision where Arbery was killed were public roads, as stated in the indictment used to charge the men.
Copeland cited records of a 1958 meeting of Glynn County commissioners in which they rejected taking ownership of the streets from the subdivision’s developer. Prosecutors countered that service request records and trial testimony from a county official showed the streets had been maintained by the county government for decades.
Theodocion also argued that using their pickup trucks to cut off Arbery’s escape from the neighborhood didn’t amount to attempted kidnapping. He said the charge was improper because the men weren’t seeking ransom or some other benefit, an element required to prove the charge as a federal crime.
Levine countered that the McMichaels and Bryan sought the “satisfaction of catching a Black man that they assumed to be a criminal on the streets of their neighborhood.”
The trial judge sentenced both McMichaels to life in prison for their hate crime convictions, plus additional time — 10 years for Travis McMichael and seven years for his father — for openly carrying guns while committing violent crimes. Bryan received a lighter hate crime sentence of 35 years in prison, in part because he wasn’t armed and preserved the cellphone video that became crucial evidence.
All three also got 20 years for attempted kidnapping, to overlap with their hate crime sentences.
If the U.S. appeals court overturns any of their federal convictions, both McMichaels and Bryan would remain in prison. All three are serving life sentences in Georgia state prisons for murder, and have motions for new state trials pending before a judge.
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Bynum reported from Savannah, Georgia.
