State prosecutors mostly avoided race in trying Ahmaud Arbery’s killers. Feds won’t have that option

By Eliott C. McLaughlin, CNN

Georgia prosecutors proved Ahmaud Arbery’s killers guilty of murder. Now, lawyers for the federal government will try to prove they chased down the 25-year-old jogger because he was Black.

That case may be tougher to make.

Following jury selection, Assistant US Attorney Barbara Bernstein laid out the crux of her case in opening statements, flatly stating the evidence would show “that if Ahmaud Arbery had been White, he would have gone for a jog, checked out a cool house under construction and been home in time for Sunday supper.

“Instead, he went out for a jog and ended up running for his life.”

In their rebuttal, defense attorneys representing the three White men in the federal hate crimes trial unfolding in Brunswick conceded Travis McMichael, Gregory McMichael and William “Roddie” Bryan used racist language, alleged examples of which Bernstein provided the jury. However, the defendants’ lawyers insisted, it wasn’t the reason they chased Arbery.

“Greg and Travis McMichael followed Ahmaud Arbery not because he was a Black man, but because he was the man who had been illegally entering the house that was under construction,” Gregory McMichael’s attorney, A.J. Balbo, said, referring to an unfinished home in the neighborhood where Arbery had been on caught on camera.

Evidence in the state trial indicated Arbery was never accused of any crime at the property — a point that will doubtless play into federal prosecutors’ case as they try to show the McMichaels and Bryan pursued and tried to kidnap Arbery because of his race, resulting in his death.

On the line for the defendants — already serving life sentences on state murder convictions — are steep fines and more decades behind bars. But for some observers, the stakes reach far beyond the men on trial.

“It sends a message to every Black person everywhere that you can’t hunt people down who are legitimately in a place just because you’re afraid. Doing that is racist, and we will punish it,” said hate crimes expert and Indiana University law professor Jeannine Bell. “It’s not just that it is racist; the government cares about that.”

The men have pleaded not guilty

To secure a conviction on federal interference with rights — a hate crime — prosecutors must prove the men acted out of racial animus. Travis McMichael, his father Gregory and their neighbor, Bryan, also face attempted kidnapping counts, and the McMichaels each face a weapons charge. The McMichaels’ attorneys declined to comment.

Bryan’s counsel, Pete Theodocion, could not speak about the specifics, he said, but expected his team would do its best to earn an acquittal. “It will be a much different trial than was the state case, and we are hoping for the best,” he wrote in an email.

All three have pleaded not guilty.

In the state case against the men, the key piece of evidence was a video, released by the defendants, showing them chasing Arbery in February 2020 through their neighborhood as he tried to elude them. Before delivering guilty verdicts, jurors watched the footage: Travis McMichael — his armed father in the truck bed and Bryan in another truck — exits his vehicle with a shotgun and fatally shoots Arbery after a brief struggle.

The prosecutor in the case, Linda Dunikoski, believed the video would be enough to prove murder and other state charges without getting into race or the men’s motivation, she told CNN.

Evidence in the federal case, experts say, isn’t so straightforward.

Though the judge has sealed several evidentiary motions, the murder investigation and previous court proceedings reveal the men sent racially charged texts and social media postings unrelated to Arbery. Confederate imagery on Travis McMichael’s truck and Bryan’s allegation to police, per a state investigator, that he heard Travis utter a slur after shooting Arbery might also come into play. Attorneys representing Travis McMichael in the state trial have suggested Bryan made up the slur.

In opening arguments, Bernstein also raised allegations that Travis McMichael referred to African Americans as “subhuman savages” and that his father once said of a civil rights leader who had just died, “He was nothing but trouble. Those Blacks are nothing but trouble.”

Racial slurs are legal, the prosecutor said, “but you’ll still hear lawyers ask about them because those slurs can provide you with important evidence about why a defendant did what he did.”

If the judge admits the evidence, will it be enough to meet the burden of a hate crime? Tough to tell, said Michael Moore, the ex-US attorney for the Middle District of Georgia. The texts and social media made public contain “very unsavory and just disgusting commentary,” he said, but that alone will not suffice.

It’s like someone who cheats at cards, Moore said: Proving she or he cheats might speak to their propensities and demonstrate they have the character of a thief, but does it mean they robbed a particular bank on a certain day?

“They’ve got to go in and say, ‘We have this evidence of racial bias and race-related motivation, and that is one of the reasons that (Arbery) was killed,'” the former federal prosecutor said. “The question is: Does the fact that somebody may be a racist — can you say that is what led to this killing? And I think that’s a tougher burden on the government.”

Admissions made in withdrawn plea deal

At a hearing this month, Travis McMichael hoped to have most of the federal charges against him dropped in exchange for pleading guilty to interference with rights. He was ready to accept a 30-year sentence, so long as it was served in federal prison.

In offering to plead guilty, the 36-year-old told US District Judge Lisa Godbey Wood he willfully injured, intimidated and interfered with Arbery because he was enjoying a public street and, as Wood put it, “acted because of Mr. Arbery’s race or color.”

Wood scuttled the plea deal after hearing from Arbery’s family, whose legal team likened federal prison to a country club.

“Please listen to me,” Arbery’s mother, Wanda Cooper-Jones, told the judge. “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.”

Wood obliged Arbery’s mother, but don’t expect Travis McMichael’s plea offer to play into the federal trial. After Wood rejected the deal, Travis McMichael withdrew his plea, so the proposed agreement is likely inadmissible, Moore said.

“There are some very limited exceptions, but I don’t see them here,” he said, so federal prosecutors “will still bear the burden of proof on the racial motivation.”

In a June 2020 preliminary hearing in state court, Georgia Bureau of Investigation special agent Richard Dial testified there were “numerous times” before Arbery’s killing that Travis McMichael used racial slurs on social media and messaging services. He once wrote in an Instagram post unrelated to the killing that he wished someone had “blown that N-word’s head off,” and on another occasion messaged someone to say he loved his job because there “weren’t any N-words anywhere,” the agent told the court.

FBI special agent Skylar Barnes, during last week’s federal hearing, outlined for Wood evidence of Travis McMichael’s racial animus, including associating African Americans with criminality, wishing crimes to be committed against African Americans and referring to Black people as monkeys, savages and N-words. Wood cut off Barnes before he could elaborate, noting some evidence remained under seal until a jury is seated.

Bryan’s texts and social media, too, were rife with messages “that I personally found disturbing,” Dial testified in 2020. Asked by Bryan’s then-attorney, Kevin Gough, if the language he viewed was all that uncommon in the South, Dial replied, “I will tell you, sir, that there were terms that he used that I’ve never encountered before.”

Bryan, 52, once wrote from an airport that it was “great” there weren’t members of an unspecified racial demographic there, Dial testified. Additionally, a CBS reporter asked Gough in late 2020 if past remarks outlined in an investigative file — including multiple uses of the N-word and referring to a Martin Luther King Jr. Day celebration as a “monkey parade” — meant Bryan was racist.

Gough said they didn’t, and “Roddie Bryan doesn’t have a hateful bone in his body.” The lawyer wouldn’t use the N-word himself, he told CBS, “but I’m not Roddie Bryan.” The McMichaels’ original attorneys also denied their clients are racists.

The GBI declined to provide CNN its investigative file, citing the pending federal trial.

Before some court documents in the federal case were sealed, Bryan’s attorney late last year moved to exclude several text exchanges, including communications about MLK Day and texts “wherein Defendant Bryan suggests that a particular bicycle thief was likely black, opines that there are black people unnecessarily on disability, or shows disapproval of his adopted daughter dating an African American.”

Admitting the evidence, his attorney said in the motion, risks “rightfully” angering Black jurors and would preclude Bryan from getting a fair trial when prosecutors have no evidence Bryan has ever harmed or suggested harming a person of color.

Race needn’t be the sole motivator

The feds may have what they need to prove the McMichaels’ and Bryan’s intent, said Bell, the Indiana University law professor and author of “Hate Thy Neighbor: Move-In Violence and the Persistence of Racial Segregation in American Housing.”

“It’s harder if they’re connecting it to that particular (killing), but it’s not a big extrapolation. They’re saying this about individuals that fit Arbery’s profile,” Bell explained. “You just said you despise these people and then you attacked a person who’s jogging, who fits the profile. It’s not that big a leap.”

Motions to exclude the texts and social posts won’t likely succeed, she predicted, pointing to the US Supreme Court’s landmark 1993 ruling in Wisconsin v. Mitchell.

In that case, Todd Mitchell led a group of young Black men to attack a White teen, saying, “Do you all feel hyped up to move on some White people? … There goes a White boy; go get him.” They beat the White youngster, leaving him in a coma for four days. Found guilty at trial, Mitchell received extra prison time under Wisconsin’s hate crime statute.

Mitchell appealed, saying he was being punished for speech, a First Amendment violation, but when it got to the Supreme Court, justices ruled using past statements in establishing a criminal motive was allowed if it comported with evidentiary rules.

Bell acknowledges the Wisconsin case is stronger than the federal case against the McMichaels and Bryan, but she still believes the link can be drawn.

Barring evidence of the defendants using a racial slur during the chase or killing, the text and social posts can provide context for the crime, Moore said, and that may be sufficient because “race doesn’t have to be the sole motivator in a hate crimes case.”

The McMichaels and Bryan actually may have unwittingly laid the foundation of their federal defense at state trial, he said. Their attorneys claimed they chased Arbery not because he was Black but because they thought he had committed a crime trespassing at an under-construction home. Bryan joined the pursuit already in progress, his lawyer said.

If defense lawyers take that tack, expect federal prosecutors to resurrect elements of the state trial, including testimony indicating: Gregory McMichael told police he didn’t know if Arbery had committed a crime; White people visited the under-construction home without being confronted by the McMichaels; and Travis McMichael said Arbery wasn’t armed and never threatened him.

State prosecutor avoided race as a strategy

The myriad racial elements of the case might raise the question of why state prosecutors did not introduce evidence of racial animus during last year’s trial.

In addition to the GBI agent’s testimony, state prosecutors sought at one point to introduce evidence Travis McMichael posted what they dubbed a “racial highway video” on Facebook, his father’s Facebook post about a neo-Confederate group, the father and son’s posts about a White supremacist country singer and Bryan’s “racial messages extracted from cell phone,” according to a September 2020 court filing.

Dunikoski, the prosecutor, withdrew the motion herself, she said. It was an agonizing decision, and she and her team wondered if they might kick themselves later, she said, but it turned out to be a solid strategy.

For one, Georgia didn’t have a hate crime law at the time of Arbery’s killing. Dunikoski’s boss, Cobb County District Attorney Flynn Broady, also instructed the team to avoid making it a Black v. White case and to focus on the murder, she said.

Dunikoski worried, too, about unnecessarily alienating a juror or stirring any implicit biases. Hypothetically, if she had claimed the Confederate flag on Travis McMichael’s truck showed he was racist and one of the jurors had, say, a nephew with a Confederate flag on his own truck, it might have ostracized that juror if she didn’t believe her nephew was racist, the prosecutor said.

Most importantly, Dunikoski didn’t need the racially charged texts and social posts, she said. Georgia law does not require prosecutors to prove premeditation or motive in malice or felony murder cases. As she saw it, the video told the story.

“When we started brainstorming about it, we started actually going, ‘Do we need to do this? Is it necessary? Is it going to move the needle toward a guilty verdict?'” she recalled. “What we always said to each other was: ‘Everybody could be green, and this is still a homicide. This is not self-defense.’ So, why they did what they did became less important than rebutting their affirmative defenses.”

The federal government as ‘a balancing force’

In November, the prosecution’s strategy paid off when a jury of nine White women, two White men and one Black man delivered guilty verdicts on charges including murder. Unless they succeed on appeal, the men could die in prison, or at least spend the great majority of their remaining days behind bars.

In federal court, the hate crime and weapons charges carry sentences up to life in prison, while the attempted kidnapping count calls for a maximum of 20 years. Each count also carries fines of up to $250,000.

The federal trial, though, may serve a purpose far beyond these defendants. For one, the trial lets local and state governments know the feds are watching and they need to train law enforcement in investigating hate crimes and enforcing the laws, Bell said. They can’t just ignore these types of transgressions.

Wood’s rejection of Travis McMichael’s plea deal also tells victims they matter and lets prosecutors know they’d do well to keep a wronged family’s sentiments in mind when cutting deals that behoove the accused, the professor said.

Going back to the civil rights movement, Moore said, federal courts and agencies have served as an equalizer, “a balancing force,” whether over access to the polls, school integration or, more recently, the disparities in crack and cocaine sentencing.

That’s again true in the Arbery case, he said, noting the state attorney general asked the feds to investigate how the case was being handled weeks before the state grand jury handed down its murder indictment. There were also questions surrounding the initial stages of the case, including a weekslong delay in arresting the McMichaels and Bryan and the recusals of the first two state prosecutors — one of whom was indicted last year on charges of violating her oath of office and hindering law enforcement in this case.

While Moore and Bell concur that Dunikoski’s team was right not to take on the risky burden of unnecessarily injecting race into the state murder case, race must play an outsized role for federal prosecutors, they said.

“There are pockets (of the United States) still where you have courts and prosecutors, law enforcement agencies where sometimes the decisions and cases that come out of there seem to reveal ongoing prejudices or home-cooked deals,” Moore said. “The Department of Justice is supposed to cure those things.”

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CNN’s Angela Barajas, Pamela Kirkland, Kevin Conlon and Eric Levenson contributed to this report.