Convicted of murder and sentenced to life in prison, the men who chased and killed Ahmaud Arbery already faced steep obstacles to finding unbiased jurors for their upcoming trial on federal hate crime charges.
Now, with jury selection scheduled to start Monday, there’s a new complication: Two of the defendants — the man who shot Arbery and his father — offered last week to plead guilty before a deal they had reached with prosecutors fell apart.
Travis and Greg McMichael ultimately decided against a plea bargain, but not before their willingness to cut a deal that would have included admissions of guilt was widely reported by news organizations. Legal experts said it’s another detail that could taint potential jurors who have followed the case in the news and on social media.
“This is a case where it’s hard to imagine there could be such a thing as more publicity,” said Don Samuel, an Atlanta defense attorney who’s not involved in the case. “It’s such a hopeless situation for them as far as publicity goes.”
The McMichaels armed themselves and chased the 25-year-old Arbery in a pickup truck on Feb. 23, 2020, after spotting him run past their home just outside the port city of Brunswick. A neighbor, William “Roddie” Bryan, joined the pursuit and recorded cellphone video of Travis McMichael blasting Arbery with a shotgun.
The McMichaels and Bryan were convicted of murder the day before Thanksgiving by a jury in Glynn County Superior Court, where they were sentenced to life in prison last month. All three also were indicted in a separate federal hate crimes case, which alleges that the deadly chase violated Arbery's civil rights and that he was targeted because he was Black.
Because of the intense public interest surrounding the case, the federal jury pool is being drawn from a broader area than typical in federal trials. U.S. District Court Judge Lisa Godbey Wood ordered that jury duty notices be mailed to roughly 1,000 people scattered across 43 Georgia counties. Some people summoned for jury service could have a four-hour drive to the courthouse.
The judge hasn’t said how long she expects it could take to seat a panel of 12 jurors plus four alternates. In the state’s murder trial, jury selection exceeded two weeks.
“I anticipate the jury selection process will be slow,” Wood said in court Monday. “I require that it be careful and methodical and thorough.”
Samuel said he thinks the judge ultimately will be able to find enough jurors who haven’t followed the case closely and don’t have hardened opinions about it.
“You’re going to have to find jurors who don’t read the news on a day-by-day basis,” he said.
Legal experts say it could be more difficult for prosecutors to prove Arbery was the victim of a hate crime than it was to convict his pursuers of murder.
“They’re going to have to show that they intended to injure or harm Ahmaud Arbery because of his race,” said Ed Tarver, an Augusta lawyer and former U.S. attorney who oversaw federal prosecutions in southern Georgia. “In any of these hate crime cases, I think the bar is extremely high. They’re very difficult to prove.”
Legal filings and pretrial testimony indicate federal prosecutors plan to use text messages and social media posts to show the defendants had expressed racist views before the shooting.
FBI agent Skyler Barnes said in court Monday that investigators reviewing Travis McMichael's cellphone and social media records found "frequent use of racial slurs, to include references to African-Americans as monkeys, savages and n---ers.”
The challenge for prosecutors will be to persuade jurors that such racist beliefs motivated the decisions to chase and shoot Arbery, said Michael J. Moore, an Atlanta lawyer and a former U.S. attorney for Georgia's middle district.
“A defendant may appear to be bigoted and say terrible, off-color things in text messages, but can you translate that to why he pulled the trigger on a shotgun?” Moore said. "That’s a very different level of proof.”
During a pretrial hearing in the state murder case on June 4, 2020, Georgia Bureau of Investigation Agent Richard Dial testified that Bryan told investigators he heard Travis McMichael utter a racist slur after shooting Arbery. Attorneys for Travis McMichael denied it.
Defense attorneys in the murder case argued the McMichaels were justified in chasing Arbery because they had reasonable suspicions that he had committed crimes in their neighborhood. Travis McMichael testified that he shot Arbery in self-defense as Arbery threw punches and grabbed for his gun.
The McMichaels had planned to plead guilty to a hate crime charge after prosecutors and defense attorneys agreed to propose a 30-year sentence that would include a request to transfer the McMichaels from Georgia’s state prison system to federal custody. Wood rejected the deal Monday, saying it would have locked her into a specific sentence. Arbery’s parents argued that conditions in federal prison wouldn’t be as harsh.
At the time Arbery was killed, Georgia was one of just four U.S. states without a hate crimes law. Though his death prompted Georgia lawmakers to move swiftly to pass additional penalties for crimes motivated by race, religion, sexual orientation or other factors, there would have been no hate crimes charges in Arbery's slaying if federal authorities hadn't pursued them.
“That to me shows the importance of having this federal legislation. It has really served to fill in gaps where you have them,” said Kami Chavis, a former federal prosecutor who is now a law professor at Wake Forest University in North Carolina.
Chavis said the decision to press the federal hate crimes case even after the McMichaels and Bryan were convicted of murder sent a message that "in our country you cannot kill or injure someone because of their status or their race.’
