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Attorneys debate nuances of legal instructions judge plans to give to jury in Arbery death trial

Much of the debate dealt with how the judge will describe the limitations on making a citizen’s arrest

Closing Arguments for the trial of the men accused of murdering Ahmaud Arbery begin Monday. In court Friday, attorneys argued what charges will go before the jury.

BRUNSWICK, Ga. – With closing arguments set for Monday in the trial of the three men charged in the killing of Ahmaud Arbery, prosecutors and defense attorneys spent Friday debating nuances of the legal instructions the judge plans to give to the jury before deliberations.

In court Friday, the defense attorney who caused an outcry by saying Black pastors should be barred from the trial declared that a courthouse rally supporting the slain Black man’s family was comparable to a “public lynching” of the three white defendants.

“This case has been infected by things that have nothing to do with the guilt or innocence of these defendants,” attorney Kevin Gough told the judge, arguing that civil rights activists are trying to influence the disproportionately white jury.

Gough renewed a request for a mistrial the day after the Rev. Al Sharpton, the Rev. Jesse Jackson and Martin Luther King III joined hundreds of pastors, most of them Black, praying and rallying at the steps of the Glynn County courthouse. The event was organized after Gough last week objected to Sharpton sitting in the back row of the courtroom with Arbery’s parents.

“Third parties are influencing this case,” Gough said. “They’ve been doing it from the gallery in this courtroom. They’ve been doing it outside. This is what a public lynching looks like in the 21st century.”

He told the judge his client’s right to a fair trial was being violated by a “left woke mob.”

“I don’t recall any disruption in the courtroom itself,” the judge said of Thursday’s rally, which coincided with defense testimony.

Superior Court Judge Timothy Walmsley dismissed the mistrial motion with little discussion.

“I don’t recall any disruption in the courtroom itself,” the judge said of Thursday’s rally, which coincided with defense testimony.

Gough is the lead attorney for William “Roddie” Bryan, who joined father and son Greg and Travis McMichael in pursuing Arbery in pickup trucks after spotting the 25-year-old man running in their coastal Georgia neighborhood on Feb. 23, 2020. Bryan took cellphone video of Travis McMichael shooting Arbery as he threw punches and grabbed for the shotgun.

Arbery’s killing later became part of the broader reckoning on racial injustice in the criminal legal system after a string of fatal encounters between Black people and police.

Gough has repeatedly raised concerns about outside activists seeking to influence the case. He made the lynching remark after prosecutor Linda Dunikoski accused Gough of intentionally provoking outrage among Black pastors and civil rights activists.

“They are responding to what he strategically, knowingly, intelligently did so that there would be a response so that he could then complain of it,” Dunikoski said. “That is good lawyering right there. Because now he’s motioned for a mistrial based on something that he caused.”

Arbery’s mother, Wanda Cooper-Jones, called Gough’s latest comments “ridiculous.”

“He’s done things repeatedly that just surprise me that he would say,” she told reporters outside the courthouse. “Very surprising, but not unexpected I would say.”

RELATED: Defense attorney in Arbery death trial denies report of plea deal request | COMPLETE COVERAGE: The Ahmaud Arbery case

On Friday, Gough soundly denied a report Friday he had asked prosecutors for a plea deal for his client. A CNN report cited attorney Lee Merritt, who is representing Arbery’s mother, saying Merritt told the news outlet that Gough had requested the deal. CNN said the district attorney’s office declined to comment about being approached about a plea deal.

News4Jax asked Gough about the report.

“That’s b*******. Denied, denied, denied. I don’t know what y’all are talking about. You go ask whoever your source is,” Gough said to the gaggle of reporters as he entered the Glynn County Courthouse on Friday.

Ahead of closing arguments scheduled for Monday, prosecutors and defense attorneys argued Friday what the judge should charge the jury with.

Much of the debate dealt with how the judge will describe the limitations on making a citizen’s arrest. Defense attorneys say Georgia law authorized the McMichaels and Bryan to detain Arbery for police because they had valid reason to suspect he was a burglar. Prosecutors say there’s no evidence that Arbery had committed any crimes in the neighborhood.

Defense attorneys objected when the judge said he would instruct the jury that “a private citizen’s warrantless arrest must occur immediately after the perpetration of the offense, or in the case of a felony during escape.”

Robert Rubin, an attorney for Travis McMichael, said the proposed language would make it virtually impossible for a jury to find the defendants had probable cause to detain Arbery based on suspicion he’d committed prior burglaries in same home under construction he was seen running from before his death.

“We have built this whole case around the probable cause ... that Travis McMichael and Greg McMichael had on Feb. 23 for events that happened previously,” Rubin said. “And you are gutting all of it.”

Travis McMichael testified this week that he had seen security camera videos of Arbery inside the unfinished home and that he spotted Arbery “creeping” outside of it 12 days before the shooting. None of the five videos of Arbery inside the home showed him stealing. The owner said he installed cameras after items were taken from a boat he kept in an open garage.

Walmsley said he would consider changes if attorneys could support them citing other cases.


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