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STATE PROSECUTORS MOSTLY AVOIDED RACE IN TRYING AHMAUD ARBERY'S KILLERS. FEDS
WON'T HAVE THAT OPTION AS HATE CRIMES TRIAL BEGINS TODAY WITH JURY SELECTION

By Eliott C. McLaughlin, CNN



Updated 1958 GMT (0358 HKT) February 7, 2022


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See moment Ahmaud Arbery's killers sentenced to life in prison 03:09

(CNN)Georgia prosecutors proved Ahmaud Arbery's killers guilty of murder. Now,
lawyers for the federal government will try to prove they chased down the
25-year-old jogger because he was Black.

That case may be tougher to make.
Jury selection in the federal hate crimes trial for the three White men begins
Monday in Brunswick, Georgia, with prosecutors aiming to prove they pursued and
tried to kidnap Arbery because of his race, resulting in his death.
On the line for the defendants -- already serving life sentences on state murder
convictions -- are steep fines and more decades behind bars. But for some
observers, the stakes reach far beyond the men on trial.
For Black residents of Ahmaud Arbery's hometown, trust in the justice system is
on trial right alongside his accused killers
"It sends a message to every Black person everywhere that you can't hunt people
down who are legitimately in a place just because you're afraid. Doing that is
racist, and we will punish it," said hate crimes expert and Indiana University
law professor Jeannine Bell. "It's not just that it is racist; the government
cares about that."
Read More
To secure a conviction on federal interference with rights -- a hate crime --
prosecutors must prove the men acted out of racial animus. Travis McMichael, his
father Gregory McMichael and their neighbor, William "Roddie" Bryan, also face
attempted kidnapping counts, and the McMichaels each face a weapons charge. The
McMichaels' attorneys declined to comment for this story.
Bryan's counsel, Pete Theodocion, could not speak about the specifics, he said,
but expected his team would do its best to earn an acquittal. "It will be a much
different trial than was the state case, and we are hoping for the best," he
wrote in a Thursday email.
All three have pleaded not guilty.
In the state case against the men, the key piece of evidence was a video,
released by the defendants, showing them chasing Arbery in February 2020 through
their neighborhood as he tried to elude them. Before delivering guilty verdicts,
jurors watched the footage: Travis McMichael -- his armed father in the truck
bed and Bryan in another truck -- exits his vehicle with a shotgun and fatally
shoots Arbery after a brief struggle.
The prosecutor in the case, Linda Dunikoski, believed the video would be enough
to prove murder and other state charges without getting into race or the men's
motivation, she told CNN.
Evidence in the federal case, experts say, isn't so straightforward.
Though the judge has sealed several evidentiary motions, the murder
investigation and previous court proceedings reveal the men sent racially
charged texts and social media postings unrelated to Arbery. Confederate imagery
on Travis McMichael's truck and Bryan's allegation to police, per a state
investigator, that he heard Travis utter a slur after shooting Arbery might also
come into play. Attorneys representing Travis McMichael in the state trial have
suggested Bryan made up the slur.


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'This is America': Residents in Brunswick, GA, react to Ahmaud Arbery case 00:54
If the judge admits the evidence, will it be enough to meet the burden of a hate
crime? Tough to tell, said Michael Moore, the ex-US attorney for the Middle
District of Georgia. The texts and social media made public contain "very
unsavory and just disgusting commentary," he said, but that alone will not
suffice.
It's like someone who cheats at cards, Moore said: Proving she or he cheats
might speak to their propensities and demonstrate they have the character of a
thief, but does it mean they robbed a particular bank on a certain day?
"They've got to go in and say, 'We have this evidence of racial bias and
race-related motivation, and that is one of the reasons that (Arbery) was
killed,'" the former federal prosecutor said. "The question is: Does the fact
that somebody may be a racist -- can you say that is what led to this killing?
And I think that's a tougher burden on the government."


ADMISSIONS MADE IN WITHDRAWN PLEA DEAL

In a hearing last week, Travis McMichael hoped to have most of the federal
charges against him dropped in exchange for pleading guilty to interference with
rights. He was ready to accept a 30-year sentence, so long as it was served in
federal prison.
In offering to plead guilty, the 36-year-old told US District Judge Lisa Godbey
Wood he willfully injured, intimidated and interfered with Arbery because he was
enjoying a public street and, as Wood put it, "acted because of Mr. Arbery's
race or color."
Wood scuttled the plea deal after hearing from Arbery's family, whose legal team
likened federal prison to a country club.
"Please listen to me," Arbery's mother, Wanda Cooper-Jones, told the judge.
"Granting these men their preferred conditions of confinement would defeat me.
It gives them one last chance to spit in my face after murdering my son."


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Man accused of killing Ahmaud Arbery takes the stand in his trial 02:55
Wood obliged Arbery's mother, but don't expect Travis McMichael's plea offer to
play into the federal trial. After Wood rejected the deal, Travis McMichael
withdrew his plea, so the proposed agreement is likely inadmissible, Moore said.
"There are some very limited exceptions, but I don't see them here," he said, so
federal prosecutors "will still bear the burden of proof on the racial
motivation."
In a June 2020 preliminary hearing in state court, Georgia Bureau of
Investigation special agent Richard Dial testified there were "numerous times"
before Arbery's killing that Travis McMichael used racial slurs on social media
and messaging services. He once wrote in an Instagram post unrelated to the
killing that he wished someone had "blown that N-word's head off," and on
another occasion messaged someone to say he loved his job because there "weren't
any N-words anywhere," the agent told the court.
FBI special agent Skylar Barnes, during last week's federal hearing, outlined
for Wood evidence of Travis McMichael's racial animus, including associating
African Americans with criminality, wishing crimes to be committed against
African Americans and referring to Black people as monkeys, savages and N-words.
Wood cut off Barnes before he could elaborate, noting some evidence remained
under seal until a jury is seated.
Bryan's texts and social media, too, were rife with messages "that I personally
found disturbing," Dial testified in 2020. Asked by Bryan's then-attorney, Kevin
Gough, if the language he viewed was all that uncommon in the South, Dial
replied, "I will tell you, sir, that there were terms that he used that I've
never encountered before."


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Analysis: The factor that ultimately led to Arbery judge's decision 01:40
Bryan, 52, once wrote from an airport that it was "great" there weren't members
of an unspecified racial demographic there, Dial testified. Additionally, a CBS
reporter asked Gough in late 2020 if past remarks outlined in an investigative
file -- including multiple uses of the N-word and referring to a Martin Luther
King Jr. Day celebration as a "monkey parade" -- meant Bryan was racist.
Gough said they didn't, and "Roddie Bryan doesn't have a hateful bone in his
body." The lawyer wouldn't use the N-word himself, he told CBS, "but I'm not
Roddie Bryan." The McMichaels' original attorneys also denied their clients are
racists.
The GBI declined to provide CNN its investigative file, citing the pending
federal trial.
Before some court documents in the federal case were sealed, Bryan's attorney
late last year moved to exclude several text exchanges, including communications
about MLK Day and texts "wherein Defendant Bryan suggests that a particular
bicycle thief was likely black, opines that there are black people unnecessarily
on disability, or shows disapproval of his adopted daughter dating an African
American."
Admitting the evidence, his attorney said in the motion risks "rightfully"
angering Black jurors and would preclude Bryan from getting a fair trial when
prosecutors have no evidence Bryan has ever harmed or suggested harming a person
of color.


RACE NEEDN'T BE THE SOLE MOTIVATOR

The feds may have what they need to prove the McMichaels' and Bryan's intent,
said Bell, the Indiana University law professor and author of "Hate Thy
Neighbor: Move-In Violence and the Persistence of Racial Segregation in American
Housing."
"It's harder if they're connecting it to that particular (killing), but it's not
a big extrapolation. They're saying this about individuals that fit Arbery's
profile," Bell explained. "You just said you despise these people and then you
attacked a person who's jogging, who fits the profile. It's not that big a
leap."
Motions to exclude the texts and social posts won't likely succeed, she
predicted, pointing to the US Supreme Court's landmark 1993 ruling in Wisconsin
v. Mitchell.
In that case, Todd Mitchell led a group of young Black men to attack a White
teen, saying, "Do you all feel hyped up to move on some White people? ... There
goes a White boy; go get him." They beat the White youngster, leaving him in a
coma for four days. Found guilty at trial, Mitchell received extra prison time
under Wisconsin's hate crime statute.
Why prosecuting hate crimes can be difficult
Mitchell appealed, saying he was being punished for speech, a First Amendment
violation, but when it got to the Supreme Court, justices ruled using past
statements in establishing a criminal motive was allowed if it comported with
evidentiary rules.
Bell acknowledges the Wisconsin case is stronger than the federal case against
the McMichaels and Bryan, but she still believes the link can be drawn.
Barring evidence of the defendants using a racial slur during the chase or
killing, the text and social posts can provide context for the crime, Moore
said, and that may be sufficient because "race doesn't have to be the sole
motivator in a hate crimes case."
The McMichaels and Bryan actually may have unwittingly laid the foundation of
their federal defense at state trial, he said. Their attorneys claimed they
chased Arbery not because he was Black but because they thought he had committed
a crime trespassing at an under-construction home. Bryan joined the pursuit
already in progress, his lawyer said.
If defense lawyers take that tack, expect federal prosecutors to resurrect
elements of the state trial, including testimony indicating: Gregory McMichael
told police he didn't know if Arbery had committed a crime; White people visited
the under-construction home without being confronted by the McMichaels; and
Travis McMichael said Arbery wasn't armed and never threatened him.


STATE PROSECUTOR AVOIDED RACE AS A STRATEGY

The myriad racial elements of the case might raise the question of why state
prosecutors did not introduce evidence of racial animus during last year's
trial.
In addition to the GBI agent's testimony, state prosecutors sought at one point
to introduce evidence Travis McMichael posted what they dubbed a "racial highway
video" on Facebook, his father's Facebook post about a neo-Confederate group,
the father and son's posts about a White supremacist country singer and Bryan's
"racial messages extracted from cell phone," according to a September 2020 court
filing.
Dunikoski, the prosecutor, withdrew the motion herself, she said. It was an
agonizing decision, and she and her team wondered if they might kick themselves
later, she said, but it turned out to be a solid strategy.


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Watch prosecutor grill Travis McMichael over Arbery killing 02:49
For one, Georgia didn't have a hate crime law at the time of Arbery's killing.
Dunikoski's boss, Cobb County District Attorney Flynn Broady, also instructed
the team to avoid making it a Black v. White case and to focus on the murder,
she said.
Dunikoski worried, too, about unnecessarily alienating a juror or stirring any
implicit biases. Hypothetically, if she had claimed the Confederate flag on
Travis McMichael's truck showed he was racist and one of the jurors had, say, a
nephew with a Confederate flag on his own truck, it might have ostracized that
juror if she didn't believe her nephew was racist, the prosecutor said.
Most importantly, Dunikoski didn't need the racially charged texts and social
posts, she said. Georgia law does not require prosecutors to prove premeditation
or motive in malice or felony murder cases. As she saw it, the video told the
story.
"When we started brainstorming about it, we started actually going, 'Do we need
to do this? Is it necessary? Is it going to move the needle toward a guilty
verdict?'" she recalled. "What we always said to each other was: 'Everybody
could be green, and this is still a homicide. This is not self-defense.' So, why
they did what they did became less important than rebutting their affirmative
defenses."


THE FEDERAL GOVERNMENT AS 'A BALANCING FORCE'

In November, the prosecution's strategy paid off when a jury of nine White
women, two White men and one Black man delivered guilty verdicts on charges
including murder. Unless they succeed on appeal, the men could die in prison, or
at least spend the great majority of their remaining days behind bars.
In federal court, the hate crime and weapons charges carry sentences up to life
in prison, while the attempted kidnapping count calls for a maximum of 20 years.
Each count also carries fines of up to $250,000.
The federal trial, though, may serve a purpose far beyond these defendants. For
one, the trial lets local and state governments know the feds are watching and
they need to train law enforcement in hate crimes and enforcing the laws, Bell
said. They can't just ignore these types of transgressions.
America's legacy of lynching isn't all history. Many say it's still happening
today
Wood's rejection of Travis McMichael's plea deal also tells victims they matter
and lets prosecutors know they'd do well to keep a wronged family's sentiments
in mind when cutting deals that behoove the accused, the professor said.
Going back to the civil rights movement, Moore said, federal courts and agencies
have served as an equalizer, "a balancing force," whether over access to the
polls, school integration or, more recently, the disparities in crack and
cocaine sentencing.
That's again true in the Arbery case, he said, noting the state attorney general
asked the feds to investigate how the case was being handled weeks before the
state grand jury handed its murder indictment. There were also many questions
surrounding the initial stages of the case, including a weekslong delay in
arresting the McMichaels and Bryan and the recusals of the first two state
prosecutors -- one of whom was indicted last year on charges of violating her
oath of office and hindering law enforcement in this case.
While Moore and Bell concur that Dunikoski's team was right not to take on the
risky burden of unnecessarily injecting race into the state murder case, race
must play an outsized role for federal prosecutors, they said.
"There are pockets (of the United States) still where you have courts and
prosecutors, law enforcement agencies where sometimes the decisions and cases
that come out of there seem to reveal ongoing prejudices or home-cooked deals,"
Moore said. "The Department of Justice is supposed to cure those things."

CNN's Angela Barajas contributed to this report.

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We process your personal data to personalize content and ads, measure the
delivery of such content and ads, to provide social media features, to extract
insights about our properties and as otherwise specified in our Privacy Policy.
We share this information with our Affiliates and Vendors on the basis of
consent or legitimate interest. You may exercise your right to consent or, in
some cases object to, a legitimate interest based on a specific purpose below.
Additionally, you may exercise your preferences for consent or object to
legitimate interest processing at a vendor level in the “Vendors” link under
each purpose. These choices will be signaled to our vendors participating in the
Transparency and Consent Framework.
Privacy Policy
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PLEASE NOTE: CONSENT TO STORE AND/OR ACCESS INFORMATION ON A DEVICE IS REQUIRED
TO CUSTOMIZE AND IMPROVE YOUR EXPERIENCE

STORE AND/OR ACCESS INFORMATION ON A DEVICE


Store and/or access information on a device

Cookies, device identifiers, or other information can be stored or accessed on
your device for the purposes presented to you.

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SELECT PERSONALISED ADS


Select personalised ads

Personalised ads can be shown to you based on a profile about you.

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CREATE A PERSONALISED ADS PROFILE


Create a personalised ads profile

A profile can be built about you and your interests to show you personalised ads
that are relevant to you.

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SELECT PERSONALISED CONTENT


Select personalised content

Personalised content can be shown to you based on a profile about you.

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CREATE A PERSONALISED CONTENT PROFILE


Create a personalised content profile

A profile can be built about you and your interests to show you personalised
content that is relevant to you.

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MEASURE CONTENT PERFORMANCE


Measure content performance

The performance and effectiveness of content that you see or interact with can
be measured.

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APPLY MARKET RESEARCH TO GENERATE AUDIENCE INSIGHTS


Apply market research to generate audience insights

Market research can be used to learn more about the audiences who visit
sites/apps and view ads.

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DEVELOP AND IMPROVE PRODUCTS


Develop and improve products

Your data can be used to improve existing systems and software, and to develop
new products

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SELECT BASIC ADS


Select basic ads

Ads can be shown to you based on the content you’re viewing, the app you’re
using, your approximate location, or your device type.

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MEASURE AD PERFORMANCE


Measure ad performance

The performance and effectiveness of ads that you see or interact with can be
measured.

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ENSURE SECURITY, PREVENT FRAUD, AND DEBUG


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Ensure security, prevent fraud, and debug

Your data can be used to monitor for and prevent fraudulent activity, and ensure
systems and processes work properly and securely.

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TECHNICALLY DELIVER ADS OR CONTENT


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Technically deliver ads or content

Your device can receive and send information that allows you to see and interact
with ads and content.

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MATCH AND COMBINE OFFLINE DATA SOURCES


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Match and combine offline data sources

Data from offline data sources can be combined with your online activity in
support of one or more purposes

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LINK DIFFERENT DEVICES


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Link different devices

Different devices can be determined as belonging to you or your household in
support of one or more of purposes.

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RECEIVE AND USE AUTOMATICALLY-SENT DEVICE CHARACTERISTICS FOR IDENTIFICATION


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Receive and use automatically-sent device characteristics for identification

Your device might be distinguished from other devices based on information it
automatically sends, such as IP address or browser type.

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STRICTLY NECESSARY COOKIES


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Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched
off in our systems. You can set your browser to block or alert you about these
cookies, but some parts of the site will not work.

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PERFORMANCE COOKIES



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OUR USE OF COOKIES AND OTHER TECHNOLOGIES

We, our Affiliates and Vendors use cookies and other technologies to process
personal data (including device identifiers and IP addresses) for the following
purposes: Store and/or access information on a device, Select personalised
ads, Create a personalised ads profile, Create a personalised content
profile, Select personalised content, Measure content performance, Apply market
research to generate audience insights, Develop and improve products, Select
basic ads and Measure ad performance. Privacy Policy

By clicking “Accept All” you agree to these purposes. For more information, to
provide or withdraw consents, and in some cases object to legitimate interest
purposes for processing your personal data, click “Manage Cookies+”.
Additionally, you may exercise your preferences for consent or object to
legitimate interest processing at a vendor level in the “Vendors” link. These
settings are accessible on a site or app specific basis, at any time through the
‘Manage Cookies+’ link located on webpages or in application settings. We work
in coordination with an industry framework which will signal your preferences to
our participating Vendors

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