Ahmaud Arbery can begin to ‘rest in power’

The national reckoning on racial injustice continues. Today, Feb. 23, 2022, marks the second anniversary of the murder of Ahmaud Arbery, an unarmed 25-year-old Black man, shot while jogging in a Brunswick, Ga. neighborhood.

On Jan. 7, two white men, Travis McMichael and Gregory McMichael, convicted of what the state court sentencing judge, Timothy Walmsley, called a “callous killing,” were sentenced to life sentences with no possibility of parole. A third, William “Roddie” Bryan was sentenced to life imprisonment with the possibility of parole after 30 years. He is 52 years old.

Both the state court murder case and the federal civil rights case were to predominantly white juries, which before the verdicts were rendered had raised some eyebrows. Their verdict is an inflection point for the American justice system.

Over is the old Jim Crow jury South of the 1950s and 60s where the killers of Emmett Till could be acquitted by an all-white jury and then brag about the crime, or the killer of Medgar Evers could be tried twice before hung juries and remain at large for 30 years before he was finally brought to book.

Though the Arbery three have yet to be sentenced on the federal hate crimes charges, the federal conviction on top of the state murder charges virtually assures that none will ever see the light of day — a fate which they richly deserve.

The conviction has several interesting features because the murderous defendants almost beat the system and got away with it. But for cell phone video tape supplemented by helpful videotape evidence coming from security cameras at a construction site the murder may well have gone unpunished. Before the state court, however, was time-stamped video frame after frame evidencing that the three hunted down Arbery in pick-up trucks, boxed him in and then gunned him down in cold blood.

The tale of the tape was released in May 2020, weeks before the police killing of George Floyd on a Minneapolis street. That murder was also documented in videotape evidence, which more and more has become the order of the day. Commercial establishments have their own security cameras, as do construction sites. And the police in many cities routinely wear body cameras that record encounters with civilians they stop or arrest. Studies show that such cameras are both beneficial and cost effective.

Following their state court conviction, the three faced another prosecution in the federal court for hate crimes, and a jury just convicted them of these crimes as well. Is there a double jeopardy issue in trying the defendants in the federal courts after a state court conviction? The Constitution’s Fifth Amendment provides that no person shall be “subject  for the same offense to be twice put in jeopardy of life or limb.” But the Supreme Court made clear in 2019 that 170 years of precedents permitted separate prosecutions since the state and federal governments are deemed separate and independent sovereignties.

The issue in the federal prosecution was whether the defendants were motivated by racial hatred or were trying to accomplish a “citizen’s arrest” because they suspected Arbery of trespassing at the construction site. Greg McMichael did an audiotaped interview with investigators where he admitted he did not know whether Arbery had stolen anything. As in many criminal prosecutions, the question for the jury is what was in the defendant’s head when he pulled the trigger. The jury lost no time in deciding, deliberating only four hours after the case was put to them.

The able federal prosecutor, Christopher Perras, argued that the defense didn’t wash because there were other instances of trespassing in the neighborhood by white suspects that did not motivate the three to do anything about it. “This wasn’t about neighborhood crime, he argued to the jury, “it was about race. Racial assumptions, racial resentment, and racial anger.”

And yes, there was an avalanche of racial animus, including evidence of two Facebook posts by Greg McMichael, texts and posts by Travis McMichael and Roddie Bryan’s use of racial slurs in messages to friends. Perras’s colleague, lead prosecutor Tara Lyons, argued to the jury that the defendants treated Arbery as if he were “subhuman.” “These defendants didn’t show Ahmaud Arbery the dignity that a dog deserves when it gets hit by a car,” she said in summation, using terms that the Nazis used purportedly to justify the murder of Jews.

The family of Ahmaud Arbery savored the federal conviction, “Ahmaud will continue to rest in peace. But he will now begin to rest in power,” Arbery’s mother, Wanda Cooper-Jones, told reporters outside the courthouse.

She took issue, however, with the Justice Department’s handling of the case. Cooper-Jones said that Justice had originally agreed to accept a plea bargain from her son’s killers, and ignored the family, which had beseeched them not to do it. Assistant Attorney General Kristen Clarke said that Justice “entered the plea agreement only after the victims’ attorneys informed me that the family was not opposed to it.” So go figure.

Under the deal, the McMichaels would plead guilty to a single hate crime charge in exchange for a 30-year sentence and admit that they had been motivated by hate. Cooper-Jones protested, telling the judge: “I do not need to hear them say they were motivated by hate. That does me no good. It does my family no good.” 

Federal Judge Lisa Godbey Wood rejected the deposition, saying that she was not “comfortable accepting the terms of the plea agreement,” and the three defendants went to trial. 

In sentencing the three in the Georgia state court, Judge Walmsley said that in our system, “everybody is accountable to the rule of law.” And so they are.

James D. Zirin is a former federal prosecutor in the Southern District of New York.