By KATE BRUMBACK and RUSS BYNUM (Associated Press)
ATLANTA (AP) — Lawyers for three white men who chased and killed Ahmaud Arbery in a Georgia neighborhood have requested a federal appeals court to invalidate their hate crime convictions. They argue that prosecutors used their history of racist comments as evidence without proving they targeted Arbery because he was Black.
“At the end of the day, this issue isn’t about the racism of these defendants,” A.J. Balbo, representing Greg McMichael, told a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta. “It’s about whether or not the government met its burden.”
Their arguments also went beyond the main issue of whether a racist intent led to the Feb. 23, 2020 pursuit that resulted in Arbery being shot dead. Defense attorneys raised legal technicalities, including their claim that prosecutors failed to prove Arbery was killed on a public road.
Federal prosecutors argued that the trial jury in 2022 heard enough evidence to find the trio guilty of hate crimes and attempted kidnapping. They said that the men’s prior racist views expressed in text messages and social media posts influenced their wrong assumption that Arbery was a fleeing criminal.
“The hate-fueled violence the defendants inflicted on Ahmaud is precisely the type of conduct that Congress targeted 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 after seeing 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 passed without arrests, until Bryan’s graphic video of the killing leaked online and a national outcry erupted over Arbery’s death. The Georgia Bureau of Investigation took over the case from local police and charges soon followed.
All three men were convicted of murder in a Georgia state court in late 2021, followed months later by the federal hate crimes trial.
In their oral arguments and legal briefs, lawyers for Greg McMichael and Bryan cited the prosecutors’ use of more than two dozen social media posts and text messages, as well as witness testimony, that showed all three men using racist slurs or otherwise disparaging Black people.
Bryan’s attorney, Pete Theodocion, called it “some of the ugliest, most repulsive evidence any of us have ever heard in a trial,” and explosive enough that prosecutors could sway a jury without proving a racist intent 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. Earlier, he had seen security camera footage showing Arbery entering a nearby home under construction.
Balbo argued that when Arbery ran past the McMichaels’ home in February 2020, Greg McMichael identified him from those videos based on his height, weight, tattoos, and manner of dress.
Balbo said that if the person had been a 60-year-old Black man, Greg McMichael would not have confronted him. He emphasized that race did not play a part in this incident.
One of the judges appeared doubtful. Judge Britt Grant, nominated to the appeals court by former President Donald Trump, expressed that the trial evidence of racist intent behind Arbery’s killing was significant.
The videos did not show Arbery stealing, and police did not find any stolen items or weapons on him.
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 when they might make a decision.
The defense raised legal technicalities, including Travis McMichael’s attorney, Amy Lee Copeland, arguing that prosecutors did not prove that the streets where Arbery was killed were public roads, as stated in the indictment used to charge the men.
Copeland mentioned records of a 1958 meeting of Glynn County commissioners in which they declined taking ownership of the streets from the developer of the subdivision. Prosecutors countered that service request records and trial testimony from a county official indicated that the streets had been maintained by the county government for many years.
Theodocion also claimed that using their pickup trucks to block Arbery’s escape did not constitute attempted kidnapping. He stated that the charge was inappropriate because the men were not seeking ransom or some other benefit, which is necessary to prove the charge as a federal crime.
Levine argued that the McMichaels and Bryan wanted to capture a Black man who they assumed was a criminal in their neighborhood.
The trial judge sentenced both McMichaels to life in prison for their hate crime convictions, along with 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, partly because he was not armed and preserved the cellphone video that became crucial evidence.
All three also received 20 years for attempted kidnapping, which will overlap with their hate crime sentences.
If the U.S. appeals court overturns any of their federal convictions, both McMichaels and Bryan would stay 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.
