The three white defendants face separate federal charges in the killing of the unarmed Black jogger. Now the conversation about race’s role in the crime begins.
Twenty-five-year-old Ahmaud Arbery was Black, unarmed, and out for a run in a Georgia neighborhood near where he lived when three white men chased him down, and accosted, assaulted, and shot him dead nearly two years ago. Whether that all happened because the victim was Black, well, that’s something a lot of people feel they already know.
The effects of racism are often more visible than racist intent. Perhaps that is one reason the prosecutors dodged the topic of racial motives almost entirely in the state murder trial of Travis McMichael, now 36; his father, Gregory, 66; and William “Roddie” Bryan, 52 — the men who carried out what has been labeled a modern-day lynching in broad daylight. Each was convicted in November of an array of charges related to Arbery’s fatal shooting that day, including malice murder, felony murder, and false imprisonment. In January, all received life sentences in Georgia state prison, with the McMichaels having no chance at parole.
Racist intent is what the US government will now attempt to prove in federal court in a separate, second trial against the men that begins Monday with jury selection; this time, the three defendants will face federal charges alleging hate crimes, attempted kidnapping, and two firearms offenses.
The difference between the Georgia murder trial and the federal hate crimes trial matters, particularly since neither race nor racism was raised as a factor by the prosecution in the murder trial, save for a mention in district attorney Linda Dunikoski’s closing statement. Howard Law School professor Justin Hansford said that amounted to a “whitewashing of this trial,” telling Vox after the verdict that the tactic played to those afraid to talk about race.
The federal hate crimes charges make such avoidance impossible.
If the murderers have already been convicted, why will there be another trial?
Federal hate crime prosecutions, for those victimized, can offer not only a promise of additional punishment for offenders but also an acknowledgment of the role bigotry played in a crime. That can be a powerful thing.
The defendants are also all pursuing appeals of the life sentences they received in their Georgia trial. (While many states have their own hate crime laws, Georgia did not have one at the time of Arbery’s death.) If they are successful, whatever federal sentences they receive would not be redundant.
Federal prosecutors thought they’d sealed a plea deal for two of the defendants, the McMichaels, to avoid having to try the hate crimes case at all.
The terms of the deal would have required both of the McMichaels to plead guilty to one charge of the government’s multi-count indictment: the part alleging that it was “because of Arbery’s race and color” that they interfered with Arbery’s right to enjoy the use of the public road on which he was jogging.
Then, late last month, US District Court Judge Lisa Godbey Wood took the rare step of refusing a plea deal struck by the US Department of Justice. Because that proposed deal has gone away, so have their admissions of guilt.
According to the Associated Press, Wood rejected the government’s plea deal because it locked her into adding 30 years of prison time (atop the McMichaels’ existing life-without-parole sentences), and she felt that the Arbery family should have a say at the sentencing in whatever punishment is given.
Arbery’s family, which had previously objected to any plea deal being struck, disagreed with a provision allowing Travis McMichael to transfer immediately from state prison to federal custody — where, they argued, conditions wouldn’t be as tough for him or his father, were he to join him. “Please listen to me,” Wanda Cooper-Jones, who is Arbery’s mother, told the judge, per AP. “Granting these men their preferred choice of confinement would defeat me. It gives them one last chance to spit in my face.”
What will “justice” really look like in this case?
That hate crime prosecutions are uncommon, and grew even more so during the Trump administration, matters.
The Justice Department data is somewhat surprising. There were 647 “hate crime matters,” as they were termed, investigated by US attorneys’ offices between 2005 and 2009. Fewer reports — 597 — were investigated between 2015 and 2019, marking a decrease of 8 percent. In total, however, of nearly 1,900 suspects investigated between 2005 and 2019, 82 percent were not prosecuted. The overwhelming majority of those cases were not pursued for lack of evidence.
The rate of convictions increased by 11 percent during the latter period, and about 85 percent of defendants convicted of a hate crime were sentenced to prison, with an average term of more than 7.5 years.
If convicted in their federal trial, Bryan and the McMichaels are likely looking at considerably more time than 7.5 years; it could explain their willingness to plead guilty to committing crimes against Arbery because he was Black in exchange for 30 years’ imprisonment.
The offer and acceptance of the deal may be a strong indicator of the strength of the government’s case, and thus, for the viability of hate crime laws to administer criminal punishment and accountability. It sounds like a reason to argue that the system works.
Scott Hechinger, a former public defender, has a different perspective. “To me, the trials underscore how ill-equipped the criminal legal system, process, and punishment is to achieve accountability and healing,” said Hechinger, who is now the executive director of Zealous, a national advocacy and education initiative that uses media and the arts to combat systemic injustice. “Ahmaud Arbery’s killers were sentenced to life without the possibility of ever being released. Sentenced to death in prison. Yet still, his killers remain unrepentant and indignant. Meanwhile, even worse: Arbery’s family remains unwhole, unhealed, traumatized.
“I hope that this second trial, which may result in a verdict that their crimes were actually motivated by racial animus, brings some closure to the family,” Hechinger added. “I fear that it won’t. I fear that the worst possible outcome may be new expansion and harsher application of federal criminal laws and sentences that we know from experience, always disproportionately get enforced against Black and brown people and people of lower socioeconomic statuses.”
A guilty verdict and additional prison time may help give the Arbery family some peace, and that is significant. The more central question of this federal trial, amid continuing debates about the effectiveness of hate crime laws, is whether such laws have a deterring effect on racist violence. (Research suggests they don’t.)
The challenges of proving racism inside a courtroom
If the three men are acquitted of these hate crimes charges, meaning that a federal jury rules that they didn’t violate Arbery’s civil rights by chasing him down and killing him with a shotgun at close range, what is a hate crime prosecution supposed to prove? And who is it even protecting?
Bryan Adamson, a professor of the First Amendment and civil rights at the Case Western Reserve University School of Law, noted that a second trial can be necessary when the deprivation of someone’s civil rights results in death.
Adamson told Vox that federal prosecutors will have a much different hill to climb than their counterparts in the state’s trial. However, the burden of proof is, in a sense, also on the defense this time around.
“Prosecutors are going to have to demonstrate, by direct or by circumstantial evidence, that the defendants were motivated by the race of Ahmaud. That brings in some nuances and issues regarding proving motivation, which can be a challenge,” Adamson said. “The prosecution has to put it front and center, but the defense then has to attempt to present a case that shows that there was anything else but race that motivated them to do what they did.”
Racial bias may not be difficult to prove, if history has any role to play. Bryan and the McMichaels claimed in state court that they were attempting a citizen’s arrest for a series of alleged burglaries for which they suspected Arbery, though they had no evidence. They argued their encounter was legal based on a Georgia code, since repealed, that dated back to 1863 — a law that “was basically a catching-fleeing-slave law,” Cornell University criminal law expert Joseph Margulies told NPR in October. Even the excuse that the men hoped would absolve them was stained by racism.
Adamson thinks the defendants may try recycling elements of that failed criminal defense: They have argued that they were concerned about the crime in their neighborhood and the safety of property in the area. This is because many of the defense’s efforts leading up to this hate crimes trial, Adamson said, have been directed toward keeping evidence out of the case — including testimony from Bryan that Travis McMichael uttered a racial slur after fatally shooting Arbery, as well as racially offensive texts allegedly sent from Bryan’s phone. No ruling as to their admissibility in court has been made.
Whether or not it’s proven that the defendants used racial slurs in the past or during the murder itself, proving the violation of Ahmaud Arbery’s civil rights shouldn’t rely on someone using the “n-word” in his presence as he lay bleeding to death. The racism isn’t just about what they said.
Will a jury determine that the act of chasing Arbery down and shooting him dead with a shotgun constitutes an interference with his civil rights?
If they don’t, then what do we as a country call that, exactly?