Arbery Murder Trial Updates: Jury Adjourns and Will Resume Wednesday

How did such a jury get chosen?

Even as he approved the selection of jurors earlier this month, Judge Timothy R. Walmsley of Glynn County Superior Court, who is presiding in the trial, declared that there was an appearance of “intentional discrimination” at play.

But Judge Walmsley also said that defense lawyers had presented legitimate reasons, unrelated to race, to justify unseating eight Black potential jurors.

And that, the judge said, was enough for him to reject the prosecution’s effort to reseat them.

What may have seemed like convoluted logic to non-lawyers was actually the judge’s scrupulous adherence to a 35-year-old Supreme Court decision that was meant to remove racial bias from the jury selection process — but has come to be considered a failure by many legal scholars.

The guidelines established by that ruling, Batson v. Kentucky, were central to the intense legal fight that erupted in court over the issue. The argument raised fundamental questions about what it means to be a fair and impartial juror, particularly in a high-profile trial unfolding in a small community where nearly everyone has opinions about the case.

Defense lawyers told Judge Walmsley there were numerous reasons to unseat several Black candidates for the jury. One man, they said, had played high school football with Mr. Arbery. Another told lawyers that “this whole case is about racism.”

But the resulting makeup of the jury profoundly dismayed some local residents who already had concerns about whether the trial will be fair.

“This jury is like a black eye to those of us who have been here for generations, whose ancestors labored and toiled and set a foundation for this community,” said Delores Polite, a community activist and distant relative of Mr. Arbery.

More broadly, the racially lopsided jury, in a county that is about 27 percent Black and 64 percent white, underscores the enduring challenges that American courts face in applying what seems to be a simple constitutional principle: that equal justice “requires a criminal trial free of racial discrimination in the jury selection process,” as Supreme Court Justice Brett M. Kavanaugh put it in a ruling from 2019.

The small crowd outside the courthouse included friends and relatives of the Arbery family and the same local activists who have appeared regularly since the trial began nearly two weeks ago. The group, numbering a few dozen on Tuesday, was smaller than Monday’s crowd, which was made up largely of out-of-town protesters and members of the New Black Panther Party. Mr. Arbery’s family and their lawyers asked on Monday evening that people gathered outside the courthouse remain peaceful.

Supporters of the Arbery family said on Tuesday that they thought the prosecutor, Linda Dunikoski, had done a good job throughout the trial, but that the acquittal of Kyle Rittenhouse in Kenosha, Wis., last week made them nervous about how things would go in Brunswick.

Marcus Arbery, Ahmaud Arbery’s father, said that what he had seen in the courtroom was “devastating,” and that he felt confident that the jury would return a guilty verdict. Wanda Cooper-Jones, Ahmaud Arbery’s mother, said she thought Ms. Dunikoski’s closing arguments were “fantastic” and that the prosecutor had presented the evidence well.

“I do think that we will come back with a guilty verdict, and I want to leave with this: God has brought us this far, and he’s not going to fail us now,” Ms. Cooper-Jones said. “We will get justice for Ahmaud.”

Her lawyer, Lee Merritt, echoed her sentiments. “We’re confident that this jury will seriously consider all the evidence and come back with a verdict that is reflective of what actually happened, which is the brutal and unjustified murder of Ahmaud Arbery,” he said.

Their presence became a source of contention among the defense lawyers, who have argued that the civil rights figures could intimidate the jury. Kevin Gough, the lawyer for William Bryan, has been most vociferous, urging the judge to bar the Black pastors from the courtroom and calling multiple times for a mistrial.

“We don’t want any more Black pastors coming in here,” he said at one point.

The judge repeatedly declined to order the ministers away or to declare a mistrial.

Mr. Gough’s comments prompted Mr. Sharpton’s National Action Network to invite scores of Black pastors to Brunswick, Ga., last week to show support for the Arbery family and to protest Mr. Gough’s efforts. Some also expressed concern that the jury hearing the case is composed of nearly all white members.

On Thursday, scores of Black ministers gathered outside the Glynn County Courthouse.

“You don’t want us to be on the jury. You don’t want us in the courtroom. You want to take our power, but we are here today in one voice to say that you cannot take our power,” said L.K. Pendleton, the faith director for the New Georgia Project based in Atlanta.

Some pastors held signs that said “Black Pastors Matter.” A group of Mr. Arbery’s aunts wore shirts that said “It’s the Black Pastors for Me.”

The Rev. Cathy LaCount of the Stouts Chapel CME in Savannah said that Mr. Gough’s comments were a slap in the face to the Arbery family and to the faith community.

“It is important to support this family in their quest for justice, and no one can deny them the right to have support from any pastor,” she said.

The Rev. Christopher J. Pittman from First Bryan Baptist Church in Savannah said that the fight for civil rights and social justice cannot be separated from faith and the church community. This entire case and Mr. Gough’s comments, he said, were reminiscent of the rhetoric of the 1960s and earlier. “This takes me back in time,” he said. “We shouldn’t still be arguing about this.”

The indictment charges the three defendants — Gregory McMichael, Travis McMichael and William Bryan — both individually and as “parties concerned in the commission of a crime.” Under the law, if the jury finds that one of the men committed a felony, it can convict them all of that crime, on the basis that they were acting together.

This issue is especially important for Mr. Bryan, whose lawyer has tried to distance him from the other two defendants, arguing that Mr. Bryan was just a witness to events and had no hand in actually harming Ahmaud Arbery.

Does it matter what the men set out to do?

To convict on the top charge, malice murder, the jury would have to find that the men had a deliberate intention to kill, without considerable provocation. But the other murder charges in the indictment do not depend on whether the three men meant to kill Mr. Arbery.

Defense lawyers have argued that the men were attempting to make a citizen’s arrest, and killed Mr. Arbery in self-defense. The prosecution has argued that they had no justification for a citizen’s arrest and could not claim self-defense because they instigated the confrontation.

The lesser charges create four paths to felony murder.

The men are each accused of four other serious felonies besides murder. But each of those charges could also lead to a murder conviction.

Under Georgia law, causing a person’s death in the course of committing another felony is murder, “irrespective of malice” — in other words, regardless of whether the death was intentional or accidental.

So if the jurors find the men guilty of any of these crimes …

• Aggravated assault with a deadly weapon (the shotgun);

• Aggravated assault with something likely to cause serious bodily harm (pickup trucks);

• False imprisonment (the “citizen’s arrest”); or

• Attempted false imprisonment

… and then find that Mr. Arbery’s death was caused along the way, they could convict the men of felony murder as well, without having to find that they intended or tried to kill him.

On one count against Mr. Bryan, the jury can consider reduced charges.

The judge said in his instructions to the jury that on one count in the indictment — aggravated assault involving the pickup trucks — they could consider whether one of the defendants, Mr. Bryan, was instead guilty of a reduced charge of simple assault, reckless conduct or reckless driving.

Those are misdemeanors in Georgia, not felonies, so a conviction on one of the reduced charges would not expose Mr. Bryan to a felony murder charge in connection with that count.

Over roughly two hours on Tuesday, the prosecution reasserted its case against the three defendants — Travis McMichael, Gregory McMichael and William Bryan — and portrayed them as aggressive actors who took matters into their own hands in chasing, confronting and ultimately killing Mr. Arbery.

“This is what we get,” Ms. Dunikoski said, “driveway decisions and assumptions, right here.”

She argued that Gregory McMichael had tried to control the narrative at the crime scene, telling his son, “You had no choice.” Mr. McMichael also drove a truck away while a crime technician was still at the scene of the shooting. He also called Mr. Arbery “an asshole.”

“Malice, right there,” Ms. Dunikoski said of Mr. McMichael’s behavior. “That’s how you know, right there.”

She also repeated Mr. McMichael’s statement that Mr. Arbery was “trapped like a rat,” saying that it was an acknowledgment of false imprisonment.

Ms. Dunikoski challenged the claims by the defense that the men felt as though they were under threat and were responding to a crime. The evidence, she said, did not support that portrayal. A neighbor who called the authorities about Mr. Arbery’s presence dialed a nonemergency police number and not 911, she said, because he did not think Mr. Arbery’s presence constituted an emergency.

Instead, she said, the men had assumed the worst about Mr. Arbery and operated based on those assumptions, not facts.

“They chose to confront him,” Ms. Dunikoski said. “They didn’t need to. They didn’t have to.”

Mr. Arbery, she said, had no obligation to follow the men’s commands to stop. She asked jurors to look at the situation from Mr. Arbery’s perspective. If anyone could look at it as fearful and life-threatening, she said, it was Mr. Arbery and not the McMichaels.

“He was trying to get away from these strangers who were yelling at him — yelling at him, threatening to kill him,” Ms. Dunikoski said. “And then they killed him.”

During a rebuttal that was expected to last roughly two hours, Ms. Dunikoski sought to demolish the defense’s claims that the three men were attempting to make a justified citizen’s arrest and acted in self-defense.

She argued that the state law in effect at the time said that people could perform such an arrest only after witnessing a crime in their presence or when they had immediate knowledge that a crime was committed. It was knowledge, she added, that the three men — Travis McMichael, Gregory McMichael and William Bryan — did not have.

Instead, she said, they were basing their impression of Mr. Arbery on gossip and chatter on a community Facebook page, and the situation escalated because of their own sense of entitlement in believing that Mr. Arbery had to stop for them.

“There’s no fear, only anger,” Ms. Dunikoski said, referring to the fatal confrontation between Travis McMichael, who was armed with a shotgun, and Mr. Arbery, who was not armed. Referring to Mr. McMichael, she said, “Do you really believe he had no other choice than to use his shotgun?”

She also challenged the defense’s depiction of Mr. Bryan, who was described by his lawyer as “absolutely superfluous and irrelevant to the tragic death of Ahmaud Arbery.”

“Mr. Bryan played a substantial and necessary part,” Ms. Dunikoski said in her rebuttal. “He is responsible for the murder of Ahmaud Arbery.”

Georgia’s citizen’s arrest law was largely repealed last year in response to widespread outrage over the way it has figured in this case. But it was still on the books in February 2020 when Mr. Arbery was killed. And the two sides have been sparring over how it should be described to the jury.

Judge Timothy Walmsley gave Ms. Dunikoski room to offer her interpretation Tuesday morning, saying the jury would see the law for themselves in his jury instructions. But after numerous objections from the defense over Ms. Dunikoski’s remarks, the judge sent the jury out of the courtroom so the lawyers could hash out the issue before him.

Here is the language of the citizen’s arrest law that the two sides are fighting over:

A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.

The defense claims that one of the defendants, Travis McMichael, had seen Mr. Arbery in a house under construction in the defendants’ neighborhood 12 days before they confronted him, and that seeing him then was enough to constitute “immediate knowledge” of a felony — in this case, burglary.

The prosecution has repeatedly brushed aside that claim as far too tenuous and distant in time. Ms. Dunikoski has argued that none of the men had any knowledge that Mr. Arbery had committed any crime on the day they confronted him, let alone a felony —  and that for all the men knew, Mr. Arbery had done nothing more than perhaps trespass in the partly built house.

The defense requested a mistrial on Tuesday, claiming that Ms. Dunikoski had misstated the law in her rebuttal argument. But the judge did not grant it, and he brought the jury back and allowed Ms. Dunikoski to continue her rebuttal.

To explain what the lawyers were arguing about, she offered the jury the example of a shoplifter. A store owner could execute a citizen’s arrest if he saw the person steal that day, she said, but not for stealing on some earlier day.

He has appeared largely calm and patient throughout the trial, though twice he has rebuked the lawyers arguing before him.

The judge described statements by a defense lawyer, Kevin Gough, as “reprehensible” after Mr. Gough urged him to keep high-profile Black pastors out of the courtroom because Mr. Gough claimed their presence was intimidating to the jury. Specifically, Judge Walmsley cited Mr. Gough’s comparison of the Rev. Al Sharpton’s appearance in court with a scenario in which “a bunch of folks came in here dressed like Colonel Sanders with white masks.”

Judge Walmsley repeatedly rejected Mr. Gough’s requests to bar Black pastors, as well as calls from the defense lawyers for a mistrial.

The judge also chastised a prosecutor for asking a witness if she believed that someone who stole something deserved the death penalty. He called the question inflammatory, prejudicial and unnecessary, and instructed the jury to disregard the question.

The killing of Mr. Arbery, one of several cases that prompted racial-justice protests across the country in 2020, has brought significant national attention to Judge Walmsley’s courtroom. Even before the trial began, protesters had gathered, demanding justice for Mr. Arbery. And after Mr. Gough complained about the presence of Black pastors, scores of ministers convened outside the courthouse in protest.

Judge Walmsley himself drew attention by approving the seating of a nearly all-white jury, drawing criticism from some in the community who were already concerned about the fairness of the proceedings. Mr. Arbery was Black; the men accused in his death are white.

Judge Walmsley was appointed to the state’s Eastern Judicial Circuit Superior Court in 2012 by Gov. Nathan Deal. He previously worked as Chatham County magistrate and was a partner at a Savannah law firm, specializing in commercial and real estate litigation.

Travis and Gregory McMichael were also charged with using, carrying and brandishing a firearm. Travis McMichael is accused of shooting Mr. Arbery.

The men intimidated Mr. Arbery “because of Arbery’s race and color,” the eight-page federal indictment said. The McMichaels and Mr. Bryan are white; Mr. Arbery was Black.

Mr. Bryan told investigators that he heard Travis McMichael use a racial slur after shooting Mr. Arbery, fueling the notion that the killing was motivated by race. Mr. McMichael’s defense team has denied the claim.

The men did not face hate-crime charges at the state level because Georgia had no such law at the time of Mr. Arbery’s death. The state Supreme Court struck down a hate-crime statute in 2004 for being too vague, making Georgia one of the few states without such a statute.

But Mr. Arbery’s killing united Republican and Democratic lawmakers, leading them to pass a new hate-crime law months afterward.

Georgia’s new statute allows for extra penalties for people who commit crimes against others based on their race, gender, sexual orientation and other identities. Law enforcement officials are required to file reports of these kinds of crimes so the state can track them.

Hate-crime cases can be difficult to prosecute because of the need to prove that the motive is directly tied to a victim’s identity. Still, the application of the laws often provides reassurance to victims and their families because it acknowledges the distinct nature of those crimes.

“There’s a feeling it wasn’t just an ordinary crime, there was something particularly egregious about this offense, and hate-crime laws offer us a way of recognizing that and offer sort of an official way for our society to say these behaviors are particularly awful,” said Phyllis B. Gerstenfeld, a criminal justice professor at California State University, Stanislaus, with expertise in hate crimes.

The first test of Georgia’s law may be the trial of Robert Aaron Long, the man facing the death penalty for a shooting rampage at three spas in the Atlanta area in March. The use of the law in a case that has drawn national attention, however, does not mean its use will become widespread.

“Just because the law is seen as valid and has been used in a high-profile case or two, it still doesn’t mean that it’s going to necessarily have a lot of practical use,” Ms. Gerstenfeld said.

The three men face charges that include false imprisonment, aggravated assault, felony murder and malice murder. Prosecutors said the men had no justification to go after Mr. Arbery or to make a citizen’s arrest, which is what their lawyers argue they were attempting to perform.

“All three of these defendants made assumptions about what was going on that day,” Linda Dunikoski, the lead prosecutor, told the jury on Monday. “And they made their decision to attack Ahmaud Arbery in their driveways, because he was a Black man running down the street.”

The issue of race has hung over the case but had previously been largely absent from the trial.

Lawyers for the defendants argued that they had the legal justification to try to make a citizen’s arrest, saying that Travis McMichael, who fatally shot Mr. Arbery, and his father, Gregory McMichael, had suspected that he was involved in burglaries in their neighborhood of Satilla Shores. They challenged the depiction of Mr. Arbery as a jogger who was pursued because of his race and described him instead as a troubled young man who had no business skulking around homes in the neighborhood.

After prosecutors conclude their rebuttal, the judge will instruct the jurors before sending them to start deliberating.

The case now reaches a jury after twists and turns through the legal system that inspired protests and outrage, with activists and some in the community fearing that Mr. Arbery’s killing had been mishandled and neglected by the authorities.

Mr. Arbery, a 25-year-old unarmed Black man, was shot and killed on Feb. 23, 2020, after he was chased by three white men on the outskirts of Brunswick, Ga. Though the case initially drew little notice outside the community, it soon attracted national attention, especially after a video emerged that showed the fatal encounter.

The first authorities to handle the case were the Glynn County Police Department and the Brunswick District Attorney’s office. But the day after the shooting, the district attorney, Jackie L. Johnson, recused herself because one of the men involved, Gregory McMichael, had been a longtime investigator in her department. Ms. Johnson later lost her bid for re-election and was indicted in September 2021 over her initial handling of the case; she has denied any wrongdoing.

After Ms. Johnson’s recusal, the case was handed to Mr. Barnhill, who also recused himself, but not before sending the letter to the Georgia attorney general. Mr. Barnhill argued in the letter that the three men were justified in trailing Mr. Arbery because they believed he was a suspect in a burglary.

“It appears their intent was to stop and hold this criminal suspect until law enforcement arrived,” Mr. Barnhill wrote. “Under Georgia Law this is perfectly legal.”

When Mr. Barnhill bowed out in April 2020 because his son had worked for Ms. Johnson alongside Mr. McMichael, the case went to a third prosecutor, Tom Durden. Mr. Durden responded to growing anger and criticism by announcing that a grand jury would consider whether to charge the men and that the Georgia Bureau of Investigation would take over the investigation.

Soon after, the authorities said that Mr. McMichael and his son, Travis, had been arrested. (The third defendant, William Bryan, was charged later.)

Referring to the police and local prosecutors who did not initially arrest or charge anyone in Mr. Arbery’s death, Vic Reynolds, the director of the G.B.I., told reporters after arrests of the McMichaels, “I can’t answer what another agency did or didn’t see.”

But he added that once the case was in his bureau’s hands, “within 36 hours we had secured warrants for two individuals for felony murder — I think that speaks volumes.”

After that, the case changed prosecutors yet again. Mr. Durden stepped aside and the Georgia attorney general, Christopher M. Carr, appointed the district attorney’s office in Cobb County, in the Atlanta metropolitan area, to take over.

Ms. Brooks has attended the trial regularly, taking detailed notes and checking them for accuracy, and then going live on Facebook to relay what happened in court to people around the world.

Diane Arbery, another of Mr. Arbery’s aunts, has been outside the courthouse talking to supporters all day, every day. So has Carla Arbery, an aunt whose children were especially close to Mr. Arbery. Ruby Arbery, still another of Mr. Arbery’s aunts, has brought home-cooked meals for family members and supporters.

Mr. Arbery’s parents, Marcus Arbery and Wanda Cooper Jones, have attended every day of the trial, sometimes sitting with high-profile civil rights activists like the Rev. Al Sharpton and the Rev. Jesse Jackson.

Those who knew Ahmaud Arbery as a loving relative, devoted friend and star athlete have found the picture of Mr. Arbery painted by the defense difficult to hear. One lawyer, building an argument that the assailants had reason to believe Mr. Arbery was responsible for a string of neighborhood break-ins, described him as “an intruder” who was caught four times on video “plundering around” a house under construction in the neighborhood.

Mr. Arbery’s aunts and grandmother said that the day the medical examiner spoke was the hardest. The testimony left no doubt in their minds that Mr. Arbery died afraid and alone.

“Travis McMichael got up there and talked about fearing for his son,” Ms. Brooks said, referring to one of the defendants. “Maud was someone’s son. What about the son he took away from Wanda and Marcus? The son that we love that we will never see again, who will never go home again?”

The trial of Gregory McMichael, 65; his 35-year-old son, Travis McMichael; and their neighbor William Bryan, 52, began in early November, and lawyers are expected to make their closing statements on Monday. All three men face possible life sentences.

The slaying of Mr. Arbery was captured on video that was widely viewed by the public, helping to make it among the most high-profile cases with civil rights overtones in the United States. The trial has played out at the same time as the case in Kenosha, Wis., involving Kyle Rittenhouse, who last week was found not guilty of homicide and other charges after fatally shooting two men and wounding another amid protests and rioting.

Who was Ahmaud Arbery?

Mr. Arbery was a former high school football standout who was living with his mother outside the small city of Brunswick. He had spent a little time in college but seemed to be in a period of drift in his 20s, testing out various careers and working on his rapping skills. He also suffered from a mental illness that caused him to have auditory hallucinations.

Friends and family said he liked to stay in shape. He was an avid jogger who was often seen running in and around his neighborhood.

The issues

The defense has argued that the accused men — who spotted Mr. Arbery running through their community, pursued him in two trucks and then cornered him — were making a lawful citizen’s arrest. They have argued that Travis McMichael shot Mr. Arbery because Mr. Arbery attacked him.

The state has argued that the defendants chased Mr. Arbery based on flimsy assumptions about his presence in their suburban neighborhood of Satilla Shores. Travis McMichael testified last week that he shot Mr. Arbery after Mr. Arbery grabbed his gun; a prosecutor pointed out that in Mr. McMichael’s initial statement to the police he had said he could not remember if that had happened.

Before the trial began, prosecutors signaled that they intended to tell the jury that the defendants’ decisions were based on racial animus; but the jury ultimately heard no talk of race.

Crime in the neighborhood

The defendants and other neighbors have described Satilla Shores as a community on edge after a series of burglaries and property crime. Gregory McMichael said that when he saw Mr. Arbery running through the neighborhood, he thought he looked like a man suspected in several break-ins in the area.

Mr. Arbery had been spotted on security camera footage several times at a house under construction. No evidence was produced that he had ever taken any property from the site.

One law dismantled, another enacted

Mr. Arbery’s death led lawmakers in Atlanta to change the state law in two significant ways. First, they gutted a Civil War-era citizen’s arrest statute that allowed citizens to arrest one another under certain circumstances and when the police were not present. Second, lawmakers passed a hate crimes law, allowing for extra penalties for people who commit crimes against others based on their race, gender, sexual orientation or other identities. Law enforcement officials are required to file reports of these kinds of crimes so the state can track them.

The defendants have claimed they are not guilty based in part on the former citizen’s arrest law. They were not charged under the new hate crimes law, but all three were indicted under the federal hate crimes statute earlier this year. Their trial in that case is set for February.

Here are the charges in the order listed in the indictment:

Count 1

Malice murder

This crime is defined in Georgia law as causing a person’s death with deliberate intention, without considerable provocation, and “where all the circumstances of the killing show an abandoned and malignant heart.” It is punishable by death, or by life imprisonment with or without possibility of parole.

Counts 2, 3, 4 AND 5

Felony murder

This charge applies when a death is caused in the course of committing another felony, “irrespective of malice” — in other words, whether or not the killing was intentional and unprovoked.

The other felonies in this case are listed in Counts 6 through 9 of the indictment; one count of felony murder is linked to each. If prosecutors prove beyond a reasonable doubt that the defendants committed one or more of those crimes and also caused Mr. Arbery’s death in the process, the basis would be laid for a conviction for felony murder.

Like malice murder, felony murder is punishable by death, or by life imprisonment with or without possibility of parole.

Count 6

Aggravated assault

One way Georgia law defines this crime is as an assault using a deadly weapon. This count charges the three men with attacking Mr. Arbery with a 12-gauge shotgun. It is punishable by imprisonment of one to 20 years.

Count 7

Aggravated assault

Another way Georgia law defines this crime is as an assault using “any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” This count charges the defendants with using two pickup trucks to assault Mr. Arbery. It is punishable by imprisonment of one to 20 years.

Count 8

False imprisonment

This charge applies when a person without legal authority “arrests, confines, or detains” another person “in violation of the personal liberty” of that person. Specifically, the defendants are charged with using their pickup trucks to chase, confine and detain Mr. Arbery “without legal authority.”

False imprisonment is punishable by one to 10 years in prison.

Count 9

Criminal attempt to commit a felony

Georgia law defines criminal attempt as performing “any act which constitutes a substantial step” toward the intentional commission of a crime — in this case, the false imprisonment charged in Count 8. A defendant can be convicted either of completing a particular crime or of attempting it, but not both.

Because false imprisonment is a felony, attempting it is also a felony, punishable by half the attempted crime’s maximum sentence: in this case, one to five years in prison.