Can There Be Justice for ‘Racists’?

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The three white men convicted of murdering Ahmaud Arbery filed appeals on March 3, 2023. The men are trying to overturn only their convictions — and life sentences — for federal hate crimes, not the life sentences they received for murder under state law. Ironically, they are appealing the very same judge who forced them to go to trial in federal court and who handed down longer-than-life sentences.

Lawyer A.J. Balbo wrote the appeal for Gregory McMichael, the retired law enforcement official who decided to chase Arbery after recognizing the 25-year-old black man as a trespasser who had been caught on a neighbor’s home-security camera many times. Mr. McMichael was standing in the back of a truck and was on the phone with 911 when his son, Travis McMichael, fatally shot Arbery.

The appeal says the prosecution charged Greg McMichael with:

Interference of Rights: “for allegedly using force and threats of force to intimidate and interfere with Mr. Arbery because he was on a public street and because of his race.”

Attempted Kidnapping: “for allegedly attempting to seize or confine Mr. Arbery and hold him for reward or benefit.”

A Firearms Offense: for “carrying, using or brandishing a firearm in connection with . . . the interference of rights.”

The appeal includes a summary of the incident, explaining that “Mr. Arbery inexplicably turned toward Travis McMichael” who “fired the shotgun three times, killing Mr. Arbery.” The summary does not mention that Arbery had grabbed Travis’s gun and that the two men were fighting for control of the weapon when Travis pulled the trigger.

The appeal points out that “despite three decades in law enforcement, no evidence was presented at trial showing that Greg McMichael had ever been the subject of any formal complaint involving excessive force or racially insensitive conduct.”

A police officer — who responded to calls about a trespasser on a property near the McMichael’s home — had shown the home security footage to both Greg and Travis, and the appeal mentions that while they discussed how to identify the trespasser, Greg “never uttered any racial epithet about Mr. Arbery or expressed any racial animus.”

The argument against the Interference-of-Rights conviction is that “the Government failed to present sufficient evidence that Gregory McMichael acted because of Mr. Arbery’s race, and because Mr. Arbery was using a public facility.”

The Government had to prove that the offense would not have occurred “but-for” the fact that Arbery was black. Mr. Balbo argues that race was not “the straw that broke the camel’s back” in Greg’s decision to pursue Arbery. The appeal states that Greg knew Arbery had entered his neighbor’s property four times without permission. “Arbery’s race was only relevant because it matched the race of the man on the home security footage . . . [and] had Gregory McMichael seen a black female running past his house on that fateful day . . . he would not have left his driveway.”

The Government also had to prove that Greg McMichael “acted ‘because of’ Mr. Arbery’s enjoyment of a public facility.” In this case, the “public facility” was the road Arbery ran on. The appeal argues that Greg would have pursued Arbery even if he had run across people’s front lawns rather than staying on the road. It also mentions that the Government provided no evidence that Greg “ever expressed an opinion that people of color should not be permitted to use public facilities, including the streets of his neighborhood.” A witness in the trial testified that Greg had rented a home to African Americans. If he would let them live on property he owned, why wouldn’t he let them use a public street?

Mr. Balbo acknowledges that the same witness testified that Greg referred to a black tenant as a “walrus,” and that after the tenant failed to pay the rent, Greg turned off her air conditioning. Later, he said, “You should have seen how fast her big fat black ass came with the rent check.” The appeal states the comments “paint Gregory McMichael in a negative light,” but don’t prove he believed black people should not use public streets. The appeal also tries to show that Greg demonstrated the least bias against blacks of the three defendants, noting that unlike his son and William Bryan (who recorded the video of the incident), Greg never “uttered the ‘n-word’ or other racial epithets.”

The appeal also states that the prosecution failed to prove that Greg “associated African Americans with criminality.”

The appeal concedes that Greg reacted to the death of civil rights activist Julian Bond by saying, “all these [B]lacks are nothing but trouble; I wish they would all die.” Mr. Balbo countered that this was five years before the incident with Arbery. The capital letter B is in brackets in the appeal. Greg McMichael must have written a lowercase B, and his lawyer made the change.

Arguing against the Attempted Kidnapping charge, Greg’s lawyer wrote that the Government failed to prove that the truck the McMichaels used to follow Arbery was being used as an “instrument of interstate commerce.” The appeal states that the truck was used as “nothing more than a makeshift barricade.” Another argument is that the government failed to prove Greg attempted to kidnap Arbery for “ransom or reward or otherwise.” The prosecution had made a case that a feeling of vigilantism is its own reward.

Greg McMichael’s appeal also argues that the residential streets where this event took place were not even a “public facility,” as the law requires for an Interference-With-Rights conviction.

Lawyer Amy Lee Copeland made the same argument at length in her appeal for Greg’s son, Travis McMichael. In her 81-page brief, she cited documents from 1958, when the developers who built the neighborhood tried officially to turn over the streets to Glynn County, a process known as “dedication.” Minutes from a Glynn County Commission meeting held 65 years ago show that Glynn County did not accept responsibility for the streets. Nor did the Government introduce evidence during the trial proving that Glynn County accepted dedication at a later date. Instead, the Government cited “service tickets” to show that the county had done maintenance in the neighborhood, such as mosquito control, storm-debris cleanup and drainage.

The appeal is filled with case law intended to prove that the streets were not public, even though the county did maintenance. Miss Copeland wrote, “While the county expressly rejected the offered dedication of the streets of Satilla Shores, it accepted the ‘elevation and drainage of the area involved.’ . . . A county can accept part of a dedication and reject another part.” There was evidence at trial that the developer paved the streets, but none to show that the county had since repaved them.

Travis’s lawyer also said that the court “abused its discretion” when it allowed the prosecution to use as evidence Facebook posts of Satilla Shores residents discussing “privatizing the streets.” The posts were meant to prove that the streets were public, but Miss Copeland pointed out that the social media posts were hearsay, and “offered legal advice that the unidentified neighbors were not competent to give.”

The appeal says nothing about Travis McMichael’s reportedly frequent use of racial slurs or any views he may have had about blacks. It refers to racial hatred only in connection with a precedent Miss Copeland cites about a clash between black marchers and members of the Ku Klux Klan during a parade, but this was only to support her argument that the Satilla Shores streets are not a public facility.

Miss Copeland also capitalizes “black” but leaves “white” in lowercase. The Associated Press adopted this style because “capitalizing the term [white] could pull white people more fully into issues and discussions of race and equality.” Presumably, that would not be desirable. Now many journalists follow this rule, and apparently lawyers writing briefs in federal cases also use deferential capitalization.

Although not mentioned in his father’s appeal, Travis’s appeal does note that “Arbery tried to grab Travis’ shotgun; there was a struggle; and Travis shot and killed Arbery, delivering wounds consistent with grabbing a shotgun.” The second D.A. to work on this case (the first recused herself because she knew Greg McMichael) decided not to prosecute because he thought Travis’ actions were “justifiable homicide.” It was not until William Bryan’s video was released and public pressure began to mount that the three men were charged.

The appeal also asserts that “the government did not prove that the truck was being used as an instrumentality of interstate commerce in the commission of a crime.” She argued that when the truck was used to block Arbery’s path, it was parked and there was no one behind the wheel.

William Bryan’s appeal, written by attorney J. Pete Theodocion, summarizes the incident, saying that Mr. Bryan, a 50-year-old small-engine repairman, was doing work on his porch when he saw Arbery being chased by a truck he recognized from his neighborhood. He heard one of the McMichaels yelling for Arbery to stop running, but Arbery continued. “Feeling like Arbery may have committed a crime to warrant such a chase, Bryan got into his truck unarmed and joined in the pursuit. . . . During the chase, Bryan at one point blocked Arbery’s path, forcing him briefly off the road.” Later, Mr. Bryan’s truck was directly behind Arbery, but he did not accelerate or try to hit him. Arbery made contact with the truck at one point, leaving a palm print on it, “after making a punching motion at the vehicle.” Mr. Bryan temporarily lost contact with Arbery, but later approached him from the rear as Arbery was confronted by the McMichaels. He captured on video Travis McMichael fatally shooting Arbery, and he turned the video over to police at the scene.

The appeal states that “years of telephone and internet activity [by Mr. Bryan] were reviewed and analyzed.” Mr. Bryan voluntarily turned over his phone and passwords. The analysis was performed by Amy Vaughan, an intelligence analyst for the FBI Counterterrorism Division. Miss Vaughan testified at trial that Mr. Bryan had “general racial animus against African Americans” and “associated African Americans with criminality.”

Mr. Bryan did not approve of his daughter dating a black man. In February 2020, he sent a text to his sister, telling her that his daughter “has her a ni**er now.” He later joked with his ex-wife that the boyfriend would “fit right in with the monkeys.” When the ex-wife sent him a screenshot of the young couple months later, Mr. Bryan replied, “Like I said she don’t give a fuck about herself why should we” and “I don’t see any way anything good can come to her with the life she is leading.”

In 2019 and 2020, Mr. Bryan referred to Martin Luther King Jr. Day as “Bootlip Day,” and described the celebration as a “monkey parade.” He complained that he “worked like a ni**er today” so “all the ni**ers can take off.” He also referred to blacks as “boots.” He said of a young woman that she was “still without the one ni**er but probably has another ni**er!”

Mr. Bryan’s lawyer argues that, in spite of these words, “there was no evidence presented at trial that prior to February 23, 2020, Bryan had ever done harm to an African American or any minority. . . . No evidence was presented that Bryan had ever a contentious moment with a black individual throughout his lifetime.”

To prove Mr. Bryan associated blacks with criminality, Miss Vaughan provided a 2016 Facebook post mentioning that a stolen bicycle had been recovered and a suspect was caught, and Mr. Bryan commented, “What kind of fine upstanding citizen was it? My money still on bootlip.” The appeal does not mention whether the culprit was black.

In May 2019, a friend texted Mr. Bryan that his wife had medical expenses she could not pay, and Mr. Bryan responded, “If you were black you would not pay for it!” He recommended that his friend “try and get her on disability like the ni**ers that don’t need it.”

Mr. Theodocion argued in the appeal that “There was no evidence presented that Mr. Bryan intended to deprive Arbery of his right to use a public roadway, and none that he acted with conscious intent because of Arbery’s race or color.” He also wrote that no evidence was presented to prove Mr. Bryan had anything to gain by kidnapping Arbery. “When explosively prejudicial evidence of racism is introduced,” Mr. Theodocion wrote — Mr. Bryan’s words were apparently “explosively prejudicial” — “verdicts not supported by sufficient evidence can be a natural consequence, and Bryan asks this Court to overturn what are two plainly improper and unsupported verdicts.”

Mr. Theodocion wrote that evidence of racial bias is usually strictly forbidden in trials as evidence of a defendant’s character, and he cited a case that declared such “unfair prejudice” lures the jury into declaring guilt “on a ground different from proof specific to the offense charged.” He mentioned that three of the jurors were black and one was Hispanic, and said that they “were asked to judge Bryan’s fate” after hearing about “expressions of racism” from the McMichaels and after seeing Mr. Bryan’s “own usage of foul and ugly racist terms.” He went on to explain: “Bryan’s use of the word ‘ni**er’ (on seven occasions), ‘bootlip’ (twice) and ‘monkey’ (twice) over at least a five-year span, while nothing to be proud of, fall far short of evidence from which a jury could determine he acted ‘because of race’ when he joined the pursuit of Ahmad [sic] Arbery.”

The lawyer compared William Bryan to Travis McMichael, claiming that Travis was “obsessed with African Americans” while Mr. Bryan was not. Unlike Travis, Mr. Bryan had “never called for violence against African Americans or any minority.” Mr. Bryan’s texts and social media showed that he “used the ‘n word’ barely once a year.”

Mr. Theodocion added, “The Government presented no evidence that Bryan possessed or shared any racist literature, no evidence that he approved of any movements related to White Nationalism . . . and no evidence that he had ever been rude, mean or harmful to an African American at any point in his life.”

The prosecution had argued in its opening statement that Bryan, “immediately assumed that the black guy . . . had to be a criminal and that the people chasing him . . . had to be the good guys.” The prosecution added that “in his mind Bryan was doing the right thing — aiding in . . . capturing a possible criminal,” but he committed a crime because he joined the pursuit “due to a subconscious determination” that the McMichaels had noble intentions.

The appeal states that the prosecution acknowledged during the trial that it “was in possession of no evidence Bryan consciously intended to harm Arbery because of his race,” but “the Government repeatedly assured the jury such evidence was not necessary, and that it was Bryan’s subconscious decision-making that led to his actions.”

“There is simply not sufficient evidence,” says the appeal, “to suggest Bryan would have acted any differently on the day in question had Arbery been white, Hispanic, Asian or other. Every crime committed against an African American is not a hate crime. Every crime committed against an African American by a man who has used racist language in the past is not a hate crime.”

The appeal explains that Arbery never called out for help or gave any signs that he was the victim of an unprovoked attack, and that Mr. Bryan did not arm himself or attempt to strike Arbery with his vehicle. He had only “attempted to get close enough to . . . capture the young man’s face on video to aid in possible identification if needed at a later time.”

Like the appeal for Greg McMichael, Mr. Bryan’s lawyer argued that he shouldn’t be guilty of Interference with Rights because there is no proof that he would not have followed and recorded video had Arbery run through private yards instead of staying on the paved road. “The Government has argued that this crime could not have occurred exactly the same had Arbery not been on the roadway, but that is not the same as the crime occurring because of such. At no point did the Government even attempt to suggest that the Defendants were motivated by a desire to prohibit usage of Satilla Shores Drive or any roadway to Arbery.”

The appeal concludes: “Bryan never sought to prevent Arbery specifically from enjoying the roads of the Satilla Shores neighborhood, just as he’d never accosted any of the surely numerous African Americans who had made use of those roads in the past.”

Recall that BLM shut down highways to protest in many cities during 2020, depriving hundreds if not thousands of people of their right to use public roadways, yet no one was charged with federal Hate Crimes. What would their emails and texts reveal about their attitudes towards whites?

This appeal will go before Judge Lisa Godbey Wood, of the federal Southern District of Georgia. She is a white woman appointed by George W. Bush in 2007, after serving three years as US Attorney for the Southern District of Georgia. Judge Wood has already ruled in this case. Last year, she rejected a plea deal the McMichaels had reached with prosecutors in the federal case to accept sentences of 30 years. Why? The New York Times:

In court, the Arbery family objected to the deal at least in part because it would have allowed the McMichaels to serve time in federal prison, which is generally regarded as having better, safer conditions than state prisons. This may be especially true in Georgia, where last fall the Justice Department began an investigation of state prisons, citing a high rate of murder and assault.

Arbery’s mother, Wanda Cooper-Jones said, “I fought so hard to get these guys in the state prison,” she said. “I told them [prosecutors] very, very adamantly that I wanted them to go to state prison and do their time. . . . Then I got up this morning and found out they had accepted this ridiculous plea.” Arbery’s father, Marcus Arbery, said he was “mad as hell” because the plea would have meant 30 years in federal rather than state prison. “We want 100 percent justice,” he said, “not no half justice.”

It is very unusual for a judge to reject a plea deal, but the three men had to go to trial. The defense pointed out that publicity about the rejected deal — which required a guilty plea — could prejudice a jury against the defendants. The jury found all three guilty after deliberating just over three hours. Members of Arbery’s family walked out of the courthouse, arms raised in triumph.

Before sentencing, Amy Copeland, who filed the most recent appeal for Travis McMichael, asked the judge to send her client to federal prison, noting that he had received more than 800 death threats. Some said prisoners are “waiting for him” after his photos circulated via “contraband” social media throughout the heavily-black Georgia state-prison system. Greg McMichael made a similar plea. All three men have been in protective custody since their arrest in May 2020.

Judge Wood then sentenced Travis and Gregory McMichael to second life terms on the federal charges, and for good measure, she added 10 more years to Travis’s sentence and seven more to Greg’s. She sentenced William Bryan to 35 years. Arbery’s mother was present and pronounced herself “very thankful” for the sentence. Travis McMichael’s lawyer Miss Copeland urged again that her client be moved to a federal prison, where he would be safe. “I am concerned, your honor, that my client effectively faces a back door death penalty,” she said, adding that “retribution and revenge” should not be sentencing goals, even for a defendant who is “publicly reviled.” Arbery’s father said he didn’t want the McMichaels in federal prison because they deserved to “rot” in state prison.

Judge Wood will now decide whether to overturn three convictions reached in her own courtroom — convictions that turn on whether Arbery was shot because of his race. When she handed down the sentences, she said, “Ahmaud Arbery will be forever 25. And what happened, a jury found, happened because he’s black.”

Ahmaud Arbery is no longer in the headlines, and some of the national passion about his case may have died down. Still, what judge, especially one who has ruled consistently — some might even say cruelly — against the appellants, will overturn the convictions of “racists,” even if they will die in prison on state charges anyway?