Defense tries to convince judge to allow evidence of Ahmaud Arbery’s past at trial, but state pushes back

During first day of two-day hearing in state murder case, judge made no decision on evidence

During first day of two-day hearing in state murder case, judge made no decision on evidence

BRUNSWICK, Ga. – The defense for three men charged in the 2020 killing of Ahmaud Arbery was in court Wednesday, trying to convince a judge to allow evidence of Arbery’s past run-ins with law enforcement and his mental health records to be brought up at trial in October.

State prosecutors pushed back, and the judge made no decision on either issue on the first day of a two-day hearing.

Video of the fatal shooting of Arbery, 25, sparked nationwide protests last year when the clip was leaked to a radio station in Brunswick. The video showed Gregory McMichael, 64, and his son, 34-year-old Travis McMichael, chasing Arbery through the Satilla Shores neighborhood and then Travis McMichael shooting Arbery three times with a shotgun. The cellphone video was recorded by a neighbor, William “Roddie” Bryan.

In Brunswick, Superior Court Judge Timothy Walmsley will hear 12 pretrial motions during the two-day hearing in the state murder case. Walmsley must decide whether the trial jury should be allowed to hear unflattering evidence of Arbery’s prior run-ins with law enforcement as well as racist text messages and social media posts made or shared by the men who chased and killed him. But Walmsley said Wednesday that he will not make a decision this week on whether to allow evidence of Arbery’s past acts to trial. Walmsley asked defense attorneys to provide specific details as to why the evidence is relevant in 20 days. State prosecutors would also have 20 days to respond.

On Wednesday, Jason Sheffield, defense attorney for Travis McMichael, said Arbery had a “pattern of conduct of behavior that included theft crimes or attempted burglary crimes,” and when confronted, “his response to that is to get angry and aggressive and physically and verbally.”

Linda Dunikoski, the lead prosecutor for the state’s case, argued Arbery’s past actions are irrelevant to the case against the McMichaels and Bryan because Arbery was a stranger to the men when they began chasing him in their trucks down the public street with their guns.

“If you’re going to take the law into your own hands, you’d better know what the law is. They chose to take the law into their own hands,” said Dunikoski. “The primary aggression took place when Greg Michael said, there goes that guy walking down the street, let’s grab our guns and go after him and detain him. That’s when the primary aggression took place.”

The defense called up witnesses to testify to past acts by Arbery, including a time when Arbery was chased after bringing a gun to a high school basketball game in December 2013, an instance in 2017 when officers said he tried to steal a television from Walmart and an instance when Arbery was issued a trespass warning in Burke County.

Defense attorneys also tried to convince the judge to allow evidence of Arbery’s mental health diagnosis from 2018. Both the state and defense agreed records show two nurses, specifically a registered nurse and nurse practitioner at Gateway Behavioral Center, diagnosed Arbery. But the state took issue with the quality of that diagnosis.

One nurse testified she took online Relias training courses before conducting mental health evaluations at the behavioral center.

Walmsley said he was worried about putting Arbery’s personal medical evaluations into the record in this case without more information on how it’s relevant to the murder case. Walmsley said he will address the issue again, including witnesses, on Thursday.

The defense for Travis McMichael also questioned multiple officers who previously interacted with Arbery about his mental health, including a Burke County officer who testified he gave him a trespassing warning in 2018.

The chief of the Glynn County schools police, who said he knew Greg McMichael, testified he and other officers chased Arbery after stopping him as he walked into a high school basketball game in 2013 with a gun on his waistband.

Dunikoski pointed out, along with the officers who testified, that all of the officers were sworn law enforcement officers in uniform and in marked cars during their interactions with Arbery, unlike the McMichaels and Bryan during their interaction in February 2020.

Court recessed for the day shortly after 5:30 p.m. Wednesday and will resume at 10 a.m. Thursday.

“Everyone is entitled to a defense -- and if their decision which is typical standard to attack the character of the victims other than to somehow justify the actions of these men -- I don’t think of course Ahmaud’s mental state or some issue he may have had in high school or something in the past impacted these men’s decision to chase him down the road without speaking to him and gun him down,” said Lee Merrit, attorney for the family estate.

Ahmaud Arbery

All three defendants have been jailed without bond since their arrests on state murder charges. They initially remained free for more than two months after Arbery was killed, but were swiftly charged after the video became public and the Georgia Bureau of Investigation took over the case from local police.

Federal case against defendants

The McMichaels and Bryan on Tuesday pleaded not guilty to federal hate crime charges.

Wearing white masks and orange jail uniforms, all three defendants confirmed their pleas to U.S. Magistrate Judge Benjamin Cheesbro.

It was the first time members of Arbery’s family sat in the same courtroom as the defendants, who during prior court hearings appeared by video conference from jail because of coronavirus precautions.

“Emotions were everywhere. There was a moment where I wanted to break down, but I remain strong. It’s hard being in the room with people that you know have taken your loved ones from you,” said Thea Brooks, Arbery’s cousin.

William “Roddie” Bryan (inset) and Travis McMichael and his father, Greg McMichael, plead not guilty during a federal hearing in Brunswick on Tuesday. (Courtroom sketches by Steve Bridges)

The federal grand jury indictment of the three men alleges they “used force and threat of force” to violate Arbery’s rights to use a public street “because of his race” when they chased him in their trucks through the neighborhood in Glynn County.

“You can see all the facts we know. We all see in the video line up directly with requirements that we think should end in a guilty verdict,” Merritt said.

Motions filed in the federal case point to the enormous amount of records the federal prosecutors used to build this case and will now have to hand over to the appointed defense teams for the three defendants. It includes records of more than 180 federal grand jury subpoenas and search warrants and recordings of hundreds of witness interviews and jail calls. In all, it is the rough equivalent of 1,300 filing cabinets of records.

Federal prosecutors have filed a protective order to prevent any disclosure of this material by the attorneys and prevent personal information from being shared.

On Monday, Georgia Gov. Brian Kemp signed a bill repealing the state’s Civil War-era citizen’s arrest law -- a law that was cited by Waycross prosecutor George Barnhill in a letter explaining why the suspects did not initially face arrest.

The Associated Press contributed to this report.

About the Authors:

Kelly Wiley, an award-winning investigative reporter, joined the News4Jax I-Team in June 2019.

Ashley Harding joined the Channel 4 news team in March 2013. She reports for and anchors The Morning Show.