Closing arguments in the Arbery case, and now the jury is deliberating
I previously knew only the bare bones of the Arbery case and hadn’t followed it at all closely. But here’s what Andrew Branca has to say at Legal Insurrection about the closing arguments (also please read this from Branca). In sum, he thinks the McMichaels and the third defendant will be found not guilty.
I have no idea what will happen. But I do know – as Branca points out – that these highly politicized cases have certain similarities although the fact situations, and most importantly the defendants, are very different.
They each rest on mendacious pretrial publicity in the MSM. For Zimmerman, it was primarily (among many other things) the idea that he had targeted Martin due merely to racism. For Darren Wilson, it was the famous “hands up, don’t shoot.” For Derek Chauvin, it was the idea that Floyd only complained of being unable to breathe when Chauvin had his knee on his neck (and that the hold Chauvin used was not approved by the Minneapolis police department when it actually was), for Kyle Rittenhouse it was the fictitious “crossing state lines with an illegal gun in order to kill demonstrators,” and for the McMichaels (the white killers of the black Arbery) it was the idea that they were racists pursuing an innocent jogger because he was black when in fact there is zero evidence that he was a jogger and a lot indicating he was a burglar.
These are the hooks whereby the public becomes inflamed and juries tainted, and also the reason that even an acquittal doesn’t dissuade a lot of people from thinking the defendants really were guilty.
In this case, apparently there also was the now-familiar pattern of a prosecutor lying about the law in closing arguments. For example:
Specifically, Dunikoski was talking to the jury about the concept of beyond a reasonable doubt, clearly attempting to minimize the threshold of that burden in the minds of the jury, stating:
“It’s just beyond a reasonable doubt. In other words, do you think they committed the crime? If you go, OK, yeah, I think they committed the crimes, you’re good. That’s all you need.”
As you might expect, this led to a fair-sized eruption on the part of the defense teams.
What Dunikoski was describing in plain English to the jury was not the concept of beyond a reasonable doubt, but rather the threshold of a mere preponderance (majority) of the evidence.
Preponderance of the evidence is the standard applied in civil court—is it more likely than not that someone has been proven liable for some harm. It is utterly different and enormously lower legal standard than beyond a reasonable doubt—guilt had been proven to such a degree that it has removed any reasonable doubt on the question…
This conduct was not a mistake—it was a deliberate attempt to convince the jurors to convict on a lower threshold than what the US Constitution demands—and she knew so when she did it.
Andrew Branca thinks this smacks of desperation on the part of the prosecution. I guess we’ll see.
Another parallel:
[ADA] Dunikoski also made the “harmless, unarmed victim” argument with respect to Arbery that ADA Binger had made with respect to Joseph Rosenbaum in the Rittenhouse trial—he was unarmed, he had no weapons, can’t have been a deadly force threat.
Just as with Rosenbaum, however, Arbery was not unarmed. Arbery was armed with fists, and he was seeking to arm himself with a shotgun—Travis McMichael’s shotgun. Just as Joseph Rosenbaum had been doing with respect to Kyle Rittenhouse’s rifle.
The very same grotesque and fatal injuries that Arbery ended up suffering while fighting for control of that shotgun are what Travis had every reason to believe would be inflicted on himself and his father if Arbery seized control of that weapon. That’s an imminent deadly force threat every day of the week and twice on Sunday.
As I said, I don’t know enough about the case and the law to have an informed opinion about what will happen or even about what should happen. But relying on Branca, I’d say that it doesn’t appear that the state has made its case beyond a reasonable doubt.
Despite the ludicrous narrative that Arberry was simply an innocent jogger curious about construction sites, one wonders whether the members of the jury may well be feeling considerable pressure to reach a verdict in this case more palatable to the upholders of “wokeness”, nor are the defendants nearly so sympathetic as young Kyle. I would wager against a verdict of “not guilty” while predicting massive unrest and considerable violence should this indeed be the jury’s decision.
Robert Barnes (in comments on the Rittenhouse case) has said that in the age of social media, it’s probably not possible to randomly get an impartial jury. Hence doing your homework on the jury pool before trial, and doing a rigorous voir dire is as important (if not more so) than anything else. May not be possible to get a impartial jury in the deep blue cities anyway (e.g. Minneapolis) but should still be possible outside them. He thinks this is something these otherwise sound older judges and attorneys haven’t caught up with.
Based on some reading before the trial, I thought the prosecution had a strong case. It seems the men who saw Arbery jogging did not have any direct information that day that Arbery had committed a crime — that day. As I understand it, that’s what would be required to trigger the citizen’s arrest law which was in effect at the time. If they had seen him carrying something away from the construction site, that would have been different; but they didn’t, nor did they even see him at the construction site. This means that in loading up their guns and following the jogger, cornering him, and threatening him with their guns, they were the instigators and the aggressors, which should invalidate their claim of self-defense.
But I didn’t follow the trial, so I don’t know what the jury saw and heard.
They will be convicted.
SHIREHOME:
I don’t think the third defendant will be convicted. But the others might be. Perhaps a hung jury though.
This tragedy didn’t happen in a vacuum. Branca recounts how the neighborhood had become crime infested. How the people became more alert and attentive to strangers in the neighborhood. How the police seemed unable to protect them or at least provide any deterrence. Like most Americans, the neighborhood became pro-active. Surveillance cameras, taking down strange license plates, calls to 9/11, and confronting intruders became the way to fight back.
If you are an innocent jogger and are confronted by armed men who think you might be a burglar, what would you do? Run? Attack and try to disarm one of the men? Or would you wait peaceably until the police arrive and your innocence could be established?
In many ways this case is similar to many police shootings where the perp resists arrest, and is shot during the scuffle. What would Arberry have done with the gun had he successfully grabbed it from McMichael? No one knows for sure, but I doubt he would have held the three men at gun point until the police arrived.
That Arberry had been photographed in the home several times, that he had been warned by police to quit going there, and that he became desperate to escape when confronted were all indications of guilt. Had he quietly waited for the police to arrive, he would be alive. I doubt he would have been arrested, as he had no stolen goods on him. Yet, he felt a need to escape. It happens all too frequently.
Do neighborhoods have a right to protect themselves from burglars and other criminals? Apparently, some, mostly Democrats, don’t think so. Citizens pay taxes to the government for police protection and then don’t get it. Witness the invasion burglaries that are now occurring in many cities. The Democrat mayors and governors won’t act to deter and punish such crime. Private security, gun sales, and ammo sales are going to boom until law and order becomes the norm again.
This court case has national importance, IMO.
@JJ:
Anarcho-Tyranny is a feature, not a bug to those who rule over you. It’s the worst of both worlds and unsustainable.
I’ve lived in places which are a mite anarchic, but justice is local and swift. Pick a pocket in the poorer parts of Jakarta and you get a can of gasoline over your head and a Bic lighter flicked. No DoJ will come to hit any in the mob with Civil Rights Violations. In China, I think it’s fair to say that Three Strikes and You’re Out and making useful contribution to society with your kidneys, corneas, etc.
In general, the punters are happy with either of the above depending their culture and history.
But Anarcho-Tyranny. That’s something new. Can’t see it standing for too long.
I will read Branca. The last I saw of this trial was Friday, when the judge was ready to make a directed verdict of guilty. The issue had to do with the law allowing for citizens arrest, which includes knowledge of the crime. As Kate notes, they didn’t know of a crime at the moment they stopped him. There are two paragraphs, the first paragraph mentions the knowledge of a crime and the second paragraph allows for an arrest in the commission of a felony if the perpetrator attempts to flee but is silent about knowledge. The defense decided only the second paragraph mattered and the judge read that the second was an escalation of the first. They must have convinced the judge otherwise since the directed verdict wasn’t rendered.
Here’s a positive development. People are adapting to events. In an anarcho-tyrannical dispensation, locals had best create their own Order:
Armed Citizens doing traffic control at a Parade in Lansing MI. It’s good to be a Citizen and not a Subject when the Government won’t do its job.
https://media.gab.com/system/media_attachments/files/091/317/920/original/9ee00b9253ddcca6.mp4
Roderick Scott was acquitted in a similar situation, goin from a place of safety to a place of danger on a matter of property where he was forced to shoot to defend himself. In addition, NY is a duty to retreat state and so it was far more egregious than either Zimmerman or the Arbery case.
Branca missed some of the trial. Guilty verdict for all 3 is highly likely.
I’m with JE on this — While I don’t think they had the right to accost Arbery in the manner suggested, Arbery is guilty of the one thing blacks seem to be perennially guilty of: Being beyond stupid and fighting an armed person when they did not have to.
They called the cops, apparently he knew they called the cops, so, it’s not like they were going to “get medaeval on his ass” or anything. Don’t fight, wait for the cops, and get in front of a judge and deal with it, not by fighting armed people.
Play stupid games, win stupid prizes.
I’m not sure I would convict them of murder, especially “malice murder”. Manslaughter, I’d have done in a moment — they created the situation and it got out of their control. Having one person keep off at a distance with the shotgun, perhaps, while others accosted him might have been “suitable” (though the key fact is they don’t have the right to claim self-defense under GA law, according to a ruling by the judge, as I understand it, as they had no right to attempt a citizen’s arrest).
I have a major issue, however, with the notion of them intending him harm either maliciously or beforehand. They thought he was the guy breaking in, and they sought to detain him so the cops would arrest him (as I understand, not having followed the case that closely — I’m open to argument). That they did not have the right under GA law is not really the point, as to either malice or intent.
So by charging them with the two worst types of murder charges, the prosecution overstepped their case, by all signs. Which may, indeed, have been the intention.
If they win, they win. If they lose, it just cements the notion of “no justice” in the minds of black people, and leads likely to another round of violence across the country. And that helps with the whole notion of tearing the nation apart.
As a confirmed Miss Marple fan, I think the toenail evidence is conclusive – Arbery was not a jogger.
Or at least not a regularly active one.
Branca in the Monday post:
Goes to show that expertise in one area is not expertise in another, and why you have a team.
I got it immediately, and I am not even a jogger, but I read topics outside of the law of self defense.
His commenters got it (the longest of the remarks).
Or explained it better.
Maybe he had just taken up jogging that week, and hadn’t yet experienced the nail situation.
BTW, the Media is taking it seriously, as a commenter on Tuesday noted.
https://www.youtube.com/watch?v=8eJ5E_-GUGY
In kinder circles than the ones I frequent, ‘Jogger’ is now on a par with ‘OK Brandon’… Not the way I’d say it, but a sign that some milquetoasts are beginning to learn.
True about the toenails. I’m a casual runner – 3miles, 3x week – and I have to cut mine every two weeks or they will poke a hole in my shoes and cause ingrowing nails. But when I skated regularly, I clipped them every week. Those skate boots are really unforgiving!
It seemed obvious to me from the outset of this case that the defendants had no right to confront this guy with guns drawn. Who wouldn’t have felt threatened by that? At the time they confronted him, Arbery was on a public way, minding his own business, and neither committing a crime nor presenting any kind of physical threat. Even if he had committed some property crime in the recent past, he would have been more than justified in assuming that the defendants meant to harm him, because, in our society, we don’t generally have private citizens going out into the streets in small packs, guns drawn, confronting people based on suspicion of prior crimes they may have committed. It was the defendants who created this situation by imagining this was the old west and they were going to rustle up some bad guy.
Also, to the person who commented above about a directed verdict of guilty, there is no such thing. It would violate right of trial by jury.
This trial will no doubt go into judicial history as the first time the “toenail defense” was ever deployed.
(Haven’t really been following this particular trial—did they call any “expert” toenail witnesses? e.g., podiatrists or real runners?)
The whole thing seems like a total stretch.
Makes one wonder whether the bunion defense, corn defense, blister defense or bone-spur defense are now inevitable….
Folks, go on youtube and watch Nate the Lawyer’s coverage of the case. He livestreamed a lot of it. I saw the cross examination of McMichael by the prosecutor and she tore him apart. Made him look like a liar trying to talk his way out.
Jonathan Turley I think does not have the experience that Branca does in criminal defense law. FWIW, his opinion is that the ruling from the bench on the legitimacy of attempting to effect a citizens’ arrest has crippled the defense’s case.
My gut tells me that there’s quite a bit of overkill in this prosecution, especially in indicting the man following along filming.
The smart money says Arbery’s jogging was a cover and that, in general, he was an impetuous and unscrupulous person who belonged in prison until he aged out of seeking to steal from people. The trouble is, being a generically suspicious person is insufficient to trigger a franchise to make a citizen’s arrest, and without that, your self-defense claim evaporates. (The McMichaels and their co-defendant are vastly more sympathetic characters than the train-wrecks who attacked KR).
The shooter guilty on all counts. The other 2 guilty of lesser charges but at least felony murder. The jury was quite selective.
I don’t know Georgia law, and didn’t listen to the evidence, but in general this seems like a correct verdict. They created the situation in which a man died, and lost their right to self-defense.
Arbery may not have been a stellar character, and had at least a minor criminal record, but it would not surprise me if he thought he was about to be lynched.
Steve Binger is dumb – but this Georgia defense attorney tried to win a case based on unkempt toenails! Really?
Leclerc
Long, unkemp toenails means he’s not a jogger. Lots of runners have posted on the subject. Used to be a grunt…and then a runner for the next fifteen or twenty years. Watching the toenails is a big deal. Medics had a field solution for ingrown toenails involving a match book. But that was when rations included cigarettes and so I don’t know what’s up now.
That said, cornering somebody without actual knowledge of an actual crime makes a subsequent self-defense argument tricky. It depends sometimes on local law. And citizen carry says you never do that over property.
That said, if Arberry had waited for the cops to come and sort this out, he’d likely be back doing minor theft in the neighborhood and the McMichaels would have a note in the–likely unofficial–file as being too eager by half.
The other 2 guilty of lesser charges but at least felony murder.
‘Felony murder’ is not a lesser charge in New York. What are the options in Georgia?
it would not surprise me if he thought he was about to be lynched.
If he did, he was an idiot.
Richard Aubrey – thanks for the unsolicited tutorial on jogging/toenails.
Just wondering: How about these Ethiopian and Kenyan runners who win 95% of the world-class marathons? Are meticulous pedicures the secret of their success?
Instant jury verdict of Guilty. This was to be expected as the shootee was black. Didn’t matter he was a burglar. I wonder if they took enough time to elect a foreman?
Instant jury verdict of Guilty.
News reports had it that they deliberated for six hours yesterday and about four hours today.
Since the three defendants were not in the process of an intentional homicide, rape, assault, robbery or burglary, the application of the felony murder rule strikes me as draconian. I suppose you could argue they intended to kidnap him, but that’s debatable.
I checked the New York Penal Law. In New York, the definition of felony murder does include attempted kidnapping as an underlying crime which can trigger the provision. What they appear to have been attempting (under an uncharitable reading) was something which is called ‘unlawful imprisonment’ in New York law. That does not fall under the definition of felony murder. I’m wondering if Georgia has a fuzzier definition of kidnapping.
Art Deco:
Go to the LI link at the beginning of today’s post of mine on the verdict, and you’ll see a description of Georgia’s laws.
FWIW, I cited the toenail episode as a hint for investigation, not litigation, and only into Arbery’s defenders’ claims that he was “just a jogger.”
In fact, I agree with The Young Turks on this one: the lawyer’s comment was snide and unnecessary. It did not add to the defense’s case, and may have irritated the jurors. I don’t think it was racism (that’s just knee-jerk calumny these days), but her tone of scorn WAS bigoted in a social class sort of way.
Should have been omitted.
However, I doubt it was the make-or-break moment of the trial verdict.
Go to the LI link at the beginning of today’s post of mine on the verdict, and you’ll see a description of Georgia’s laws.
From Branca’s description, the felony murder charge for the 3d defendant sounds particularly absurd.
Branca suffers from the carpenter fallacy – not every situation is self defense.
The defendants killed a petty criminal feloniously. Just as much a crime as killing a boy scout.