Opening Statements in the Arbery Trial

The trial of Georgia vs. Gregory McMichael, Travis McMichael, and William “Roddie” Bryan started on November 5th. The day before, there were more than the usual number of protesters at the courthouse. Ahmaud Arbery’s father, Marcus Arbery Sr., spoke to the press as protesters shouted, “No justice, no peace!” Mr. Arbery said, “I really am disappointed. ‘Cause you know, my son was killed racially. And instead, they’re trying to lie it isn’t racial. They got racial lawyers. They’re all racial. And now you got a jury like 1955. . . . Three white men that run a black kid and gun down in the street. . . . We not going for this! We not going for some 1955!”

Mr. Arbery is right about a few things: There is only black on the jury (see our account here), and none of the prosecutors is black.

Before the jury was brought in on Friday morning, Judge Walmsley ruled that the jury would hear about the Confederate flag on the license plate of Travis McMichael’s truck. It was on a vanity plate that showed the old Georgia state-flag that included the battle flag. The defense wanted to tell the jury about Ahmaud Arbery’s probation status because they say it was a reason why he would run, but the judge denied this motion. The judge also said the jury will see a gory officer body-cam video of Arbery as he was dying.

After the jurors were sworn in, the judge gave them several legal definitions that will help them determine if Arbery was committing a crime when he wandered around a house under construction, and whether the three white men who tried to detain him were making a lawful citizen’s arrest.

Burglary in 1st degree: Without authority, and with intent to commit a theft, that person enters or remains in the dwelling of someone else. “The dwelling” includes a house, building or structure intended to be used as a residence. It does not matter if the building was occupied, unoccupied or vacant.

Burglary intent to steal: You may infer intent to steal when the evidence shows an unlawful entry into the place of another where items of some value are present or kept inside, and when there is no other apparent motive for entry.

Criminal trespass: A person commits the offense when he knowingly and without authority (a) enters upon the land or premises of another person for an unlawful purpose. (b) enters upon the land or premises of another person after receiving prior notice from the owner or rightful occupant that entry is forbidden. (c) remains on the land after receiving notice that entry is forbidden.

Citizen’s arrest: 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 person may arrest him on reasonable or probable grounds of suspicion. In general, the phrases “in his presence” and “within his immediate knowledge” are synonymous, and a crime is committed in one’s presence if by the exercise of any of his senses, he has knowledge of its commission.

Prosecutor Linda Dunikowski began her opening statement by declaring, “We are here because of assumptions and driveway decisions. . . . The defendants did everything based on assumptions. That took a young man’s life.”

She introduced the defendants, emphasizing that they are not law enforcement officers. She showed an aerial photo of Satilla Shores, which marked the 1.8 mile path from Arbery’s home to the house under construction at 220 Satilla Drive. Larry and Amy English, the homeowners, had not posted any “No Trespassing” signs, nor had they put a fence around their property. There were no doors, and the garage was open. She pointed out the homicide location at 7 Burford St. and the McMichael house at 230 Satilla Drive.

Mr. English’s health will not permit him to come to court, but he gave a deposition. He said lots of “looky-loos” were on his property and he began to worry about liability, especially because he heard that children were going on his dock in the rear. He installed a security system with cameras. Nothing was stolen from the house in 2019 and 2020, but expensive items were stolen from his docked boat. He had been using his boat, so it was not always at Satilla Shores, and he wasn’t sure where the theft happened.

On October 24, at 10:19 p.m., Mr. English’s security system pinged him, and he saw Arbery on his dock. He called 911, but Arbery was gone by the time police arrived. Mr. English made a second 911 call that night when he saw a white couple on his property, but they also left before police arrived. Arbery was back at the house on November 18 at 6:53 p.m., and Mr. English made another 911 call. Arbery left before police arrived. Mr. English made a third fruitless 911 call when he saw Arbery on his property on December 17.

On January 1, 2020, Gregory McMichael’s handgun was stolen from his truck. Nearly six weeks later, on February 11, 2020, at 7:30 p.m., Travis McMichael went outside and saw Arbery. He recognized him, because Mr. English shared security video with neighbor Diego Perez, who showed it to many neighbors, including the McMichaels. Travis called 911. This time, police and several neighbors came outside and searched for Arbery, but they did not find him.

On February 23, 2020, at 1 p.m., Arbery came back to the construction site and looked around. Matthew Albenze, a neighbor who saw Mr. English’s security videos, recognized him and called the non-emergency police number. An officer was dispatched. Greg McMichael saw Arbery “hauling ass” down the street, as he put it to police. Miss Dunikoski pointed out that Greg McMichael did not see Arbery on Mr. English’s property. He was four houses down, working on his boat on his driveway. He went inside to get his revolver, and his son, Travis, got a shotgun. “Gregory McMichael assumed the worst,” the prosecutor said.

In a statement to police, Greg McMichael explained, “So I thought, well you know, he’s running from somebody. He’s just done something. You know, he might have hurt somebody or whatever, because this guy’s been out of that damn house over and over again. Got him on videos and everything.”

The armed father and son got in their truck and followed Arbery. Mr. Arbenze pointed in the direction Arbery took. Travis stopped his truck near Arbery and said, “Hey, just want to talk to you! Where are you running from? What are you doing?” Arbery did not reply and kept running.

William “Roddie” Bryan saw Arbery running and the truck following him. He made what Miss Dunkoski called a “driveway decision” to join in the chase. The McMichaels stopped, and Greg, who had been awkwardly riding on a child’s car seat in front, got out and got into the pickup bed. Arbery ran down Burford toward Roddie Bryan. Miss Dunikoski told the jury that Mr. Bryan tried to hit him with his truck and ran him into the ditch, and that this was false imprisonment and aggravated vehicle assault. “At this point in time, Mr. Arbery is under attack by all three of these men,” she said, adding that Mr. Bryan tried to hit Arbery four times with his truck, and he came close enough that police found Arbery’s palm print and T-shirt fibers on the vehicle.

Afterwards, Mr. Bryan gave a confused statement to the police that suggested he thought Arbery tried to get into his truck:

I can’t say for sure that he — he wasn’t on the door. I didn’t give him a chance to get to the door, but after I angled him off the side of the road, you know, and I kind of went on past him, because I didn’t hit him, wish I would have, might have took him out and not get him shot. But, you know, I probably got past him a little bit, and he come up on me, and I could see him in my mirror, and he was coming for the door. And I seen his hands on – right behind the door.

The McMichaels drove up Zellwood to try to cut Arbery off. The prosecutor called the defendants’ trucks “5,000-pound lethal weapons” and said Bryan “redirected” Arbery up Holmes Drive. She quoted Greg McMichael’s statement to police, saying that Arbery was “trapped like a rat.”

“What’s the big emergency?” Miss Dunikoski asked ironically, and then quoted Greg’s 911 call: “I’m out at Satilla Shores and there is a black man running down the street.”

She used a photo from the video of shadows under the truck to suggest that Travis was moving toward Arbery. She said the first gunshot was in front of the truck. The police-enhanced video shown in court doesn’t show much clearly, except for Travis and Arbery in a tug-of-war over Travis’s gun.

When the video of the shooting was played in court, Ahmaud Arbery’s mother, Wanda Cooper Jones, leaned in to her lawyer, Lee Merritt, covering her ears. Mr. Merritt put an arm around her shoulder. After court, she told the press: “I’ve avoided the video for the last 18 months, and I thought it was time to get familiar with what happened to Ahmaud in the last minutes of his life. . . . [T]hat’s the first time I saw the video in its entirety.”

Miss Dunikoski told the jury that no one used the words “citizen’s arrest” that day. Neither McMichael told the police they were trying to make an arrest for a specific crime. Greg McMichael told police he suspected Arbery was armed and he wanted to “stop the guy” so he could be arrested, but Greg did not know what Arbery would be arrested for. “ ‘Stop, we want to talk to you,’ ” is not an arrest,” the prosecutor said.

Miss Dunikoski wrapped up her statement, saying, “They didn’t simply follow him in their truck. All three sought to confront Mr. Arbery and took their guns to do it. All three tried to cut him off. All three used their trucks as lethal weapons.”

Bob Rubin, Travis McMichael’s lawyer, opened by saying, “This case is about duty and responsibility.” He told the jury Travis is a 35-year-old single father with a 5 year old son named Everett. He served in the Coast Guard from 2007–2016 as a boarding officer, a law-enforcement job that authorized him to make arrests, do investigations and searches, and use a weapon if necessary. He attended the Federal Law Enforcement Training Center (FLETC). He was trained to know what probable cause was, and was trained in use of force. He went through repetitive exercises intended to have him perform his duties from muscle memory. He later trained other boarding officers. At the time of the incident, Travis lived with his parents because his landlord had sold the apartment he had been renting.

Mr. Rubin told the jury, “The video that you watched . . . in the State’s opening statement doesn’t even begin to tell the story in this case. It’s like looking through that knothole in the fence and thinking you’re seeing the whole baseball field, when you really only see the outfield.”

In Satilla Shores, property crimes had gone up such that:

the neighborhood was on edge, so much so that behaviors began to change. . . . Some children were not allowed to play outside after dark. Residents installed home surveillance cameras to catch the thieves that were taking their property. And neighbors in Satilla Shores felt a duty and responsibility to each other to post on the neighborhood pages, Facebook and Next Door, about the crime that was happening.

On these sites, residents reported feeling “nervous” and “violated.”

Mr. English had valuables on his property: boats and a camper. He saw Arbery on his security cameras four times. There were no lights in the house, so infrared camera captured Arbery wandering around inside in the dark. Mr. Rubin told jury that Mr. English said he didn’t mind curiosity seekers coming to his house during the day, but that “there is no legitimate reason why this man should be on the property at night.”

Mr. English noticed that a satellite system, cooler, and microphone system were missing from his boat. From early November through February, he told people that they were stolen from his boat docked behind his new house, but he changed his story after the McMichaels were arrested, and said he wasn’t sure where the boat was when the articles were stolen.

On November 18, a week and a half after the theft of the boat equipment, Mr. English saw a suspicious white couple on one his security cameras, but they were gone when police came. He decided to move his boat from Satilla Shores because it wasn’t safe. That night he saw Arbery on his security camera again, looking at smaller boats he had in his unfinished garage. He described Arbery’s actions to police as “plundering around.”

Mr. English was frustrated that every time he called the police, Arbery was gone before the cops could question him. In a text conversation, a neighbor two houses down, Diego Perez, offered to respond if strangers were on Mr. English’s property again. Mr. English gave Mr. Perez his permission and thanked him. “I may be able to intercept them or pen them up for the police,” Mr. Perez wrote. “When seconds count, the police are minutes away.”

A police officer canvased the neighborhood using stills from Mr. English’s video, but no one could identify the black man. “He is, at this point, a scary mystery,” Mr. Rubin told the jury. A nighttime video from December 17 showed Arbery coming out of the house, looking around, and then running. “The question remains: Was he out for a jog, 10 o’clock at night, December 17th? Or was he doing something else? And we’ll never know, but it sure does look suspicious.”

Mr. Rubin said the prosecution got some facts wrong. On February 11, 2020, Arbery’s fourth time in the house, Travis McMichael called the police. Travis went out at 7:30, after dark, to fill his gas tank. He saw a man in the shadows as he drove up Satilla Drive, and the man hid behind a red porta potty in front of Mr. English’s property. Travis pointed his headlights at the porta potty and got out of his car to ask the man why he was there. The man stepped out of hiding and reached into his waist, as though reaching for a gun. Travis was fearful and got back into his car, went home, and called 911. Part of the 911 call was played in court: “When I turned around and saw him and backed up, he reached into his pocket and ran into the house. . . . So, I don’t know if he’s armed or not, but he looked like he was acting like he was. So, you know, be mindful of that.”

In Mr. Rubin’s words, Arbery still had “the audacity, the brazenness” to go into the English house, knowing that someone had seen him. Greg and Travis McMichael returned to the house, armed. Diego Perez also went, armed, “because it was their duty to protect each other.”

An officer arrived and thanked them for their help. Mr. Rubin told the jury the officer did not tell them to put their guns away, or to go home, nor did he tell them that they were not allowed to detain the suspicious man if they found him. “It is a citizen’s job to help the police, and the law authorizes that,” Mr. Rubin said.

Mr. Rubin therefore explained that the first time Travis saw Arbery face-to-face, he knew that Arbery had no good reason to be there. He knew that Mr. English said valuables had been stolen. “From his ten years in the Coast Guard, he has probable cause to think that a burglary has occurred,” Mr. Rubin said. He explained that the definition of burglary says there must be “intent to commit a felony or theft,” emphasizing the word “intent,” because probable cause can exist even if nothing had been stolen.

On February 23, Travis was in his living room with his son and Greg was out front, working his boat. Arbery walked up to the incomplete house, which now had a roof, walls, and windows, but no doors. He stood on the front lawn, looked around, and went inside. Mr. Albenze was outside working on a fallen tree in his yard. He recognized Arbery from the videos, so he called 911. He saw Arbery through the windows of the unfinished house and they made eye contact, then Arbery sprinted out of the house. “He is not jogging,” the defense lawyer declared, “He is running away.”

Greg saw Arbery run past the McMichael property, and Greg ran inside and told Travis, “The guy is running down the street!”

Mr. Rubin pointed out that they were correct that Arbery was the man in the security video. They brought their guns because they thought he might be armed. Mr. Albenze motioned in the direction in which Arbery ran. They followed him, with the intention of detaining him for the police, which the law allowed: “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.”

At first contact, Travis said, “I want to talk to you.” Arbery looked at Travis and ran the other way. Travis backed his truck up, continuing to try to talk to Arbery, but Arbery bolted. At that point, Arbery could see no guns. Further down Burford, Travis and Greg shouted to Arbery to stop, saying that the police have been called.

Travis saw Arbery trying to get into a black Silverado. He was afraid Arbery was armed and would try to carjack the truck. He passed Arbery at slow speed and stopped at an intersection, because he thought he would have the best view from there. He wanted to be able to tell the police which way Arbery went. He got out of his car and saw Arbery coming toward him. Travis yelled, “Stop.” He dialed 911 and handed his father the phone. The defense said, “Before the first shot is fired, they call the police. That is not evidence of an intent to murder.”

Travis’s training taught him to show a weapon to deescalate violence, so he took his gun out and pointed it at Arbery, hoping Arbery would stop. At that point, Arbery had a clear path ahead of him, so he could have run away from the man with the gun. If Travis had wanted to kill Arbery, he had a clear shot, Arbery running toward him.

Arbery went around the truck, and Travis couldn’t see him. He went to the front of the truck to see which way Arbery went, and he was right there, grabbing the gun. The Coast Guard had taught Travis, “Never lose your weapon,” so Travis fought to keep it. The phone video Mr. Bryan took from his truck shows Arbery hitting Travis’s head and neck. According to the defense, Travis fired in self-defense.

When the police arrived, Travis was distraught. He fully cooperated and provided a written statement. The defense closed by saying that the law shows Travis killed Arbery in self-defense. “What we’re asking you to do is hard,” Mr. Rubin said, “and it may be unpopular, but we’re asking you to recognize your responsibility as jurors, being open to the facts and putting aside emotion and listening to the law, and applying that. And doing your duty because we think, they only right verdict is not guilty on each and every count in this indictment.”

Frank Houge, Greg McMichael’s defense lawyer, gave a similar but shorter account. Roddie Bryan’s lawyer, Kevin Gough, reserved his opening until the prosecution rests.

The first witness called to the stand was Officer William Duggan of the Glynn County Police Department. On February 23, 2020, he was working at an approved off-duty job at a church, which meant he was in uniform. On his way home, he heard a report on his radio of shots fired and a person down. He thought he was closer than any on-duty officer, so he answered the call. An officer was taking pictures of the scene when he arrived. Mr. Duggan saw a black man lying on the ground and some other people, but he saw no weapons.

Officer Duggan’s graphic body cam footage was played in court. Judge Walmsley warned that anyone who might react emotionally should leave. The footage showed Arbery face down on the street, with a lot of blood on his upper body and some blood by his legs. Officer Duggan’s voice can be heard saying, “We’re gonna try to do something for him.” After turning Arbery over and administering aid for a few minutes, the officer said, “There’s nothing I can do for this gentleman.” He told the court he decided to stop trying to revive Arbery because of the amount of blood loss, the deep wound in his chest, and the lack of a rise and fall in his chest. When other officers arrived, he told them that Arbery had stopped breathing.

A few dashcam videos from Officer Duggan’s car were played. In one of them, Travis McMichael is pacing back and forth while the police try to revive Arbery. Greg McMichael went into the street and watched Officer Duggan and Arbery from several feet away.

When Officer Duggan saw Travis McMichael sitting alone, covered in Arbery’s blood, he thought he might be wounded, so he asked Travis if he was OK. Travis replied, “No, I’m not OK, I just f***ed somebody up.”

Under cross examination, Jason Schiff, who represents Travis McMichael, asked Officer Duggan about his report. He had written that Travis was “very upset.” He likened Travis’s emotional state to someone who has just hit a child with a car.

The trial resumes today.