BRUNSWICK, Ga. – Attorneys for a white father and son charged with chasing and killing Ahmaud Arbery asked a judge Wednesday to allow evidence of the slain Black man's past problems to be presented when their clients stand trial for murder.
Four law enforcement officers took the witness stand at a pretrial hearing and detailed prior encounters with Arbery, including two arrests, that defense lawyers ultimately want a jury to hear. They also sought permission to introduce evidence Arbery suffered from a mental illness.
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“They're trying to make it like he's on trial,” the slain man's father, Marcus Arbery Sr., told reporters outside the Glynn County courthouse. “But he ain't.”
Prosecutors argued that Arbery's criminal record and other prior problems should be kept out of the trial, saying they are irrelevant to the defendants' decision to arm themselves and ultimately shoot a man who was trying to run away.
Travis McMichael and his father, Greg McMichael, pursued the 25-year-old in a pickup truck after they spotted him running in their neighborhood Feb. 23, 2020. A neighbor, William “Roddie” Bryan, joined the chase and took cellphone video of Travis McMichael shooting Arbery three times at close range with a shotgun.
Defense attorneys argue the three men committed no crimes. They say the McMichaels suspected Arbery was a burglar after he was recorded by video cameras inside a home under construction. Travis McMichael's lawyers say he shot Arbery in self-defense.
Prosecutors say nothing was stolen from the construction site and Arbery was merely jogging.
Jason Sheffield, one of Travis McMichael's lawyers, told Superior Court Judge Timothy Walmsley on Wednesday that Arbery's past arrests and other incidents include not only “theft crimes.” He said they also show Arbery — when confronted by police or other authority figures — would become “angry and aggressive, physically and verbally.”
“His intent and his motive is something that is central to this case,” Sheffield said.
Prosecutor Linda Dunikoski argued Arbery's past had no bearing on the McMichaels' decision to pursue him since they knew nothing about him prior to the fatal chase.
“It doesn't matter what Mr. Arbery's thoughts were... It doesn't matter what his actions were," Dunikoski said. “He was running away from these men.”
Attorneys for the McMichaels want the jury to know about several incidents from Arbery’s past, including that he was on probation at the time he was killed.
Arbery pleaded guilty to charges he carried a gun onto a high school campus in 2013, a year after he graduated. Rodney Ellis, police chief for the Glynn County school system, testified at Wednesday's hearing that Arbery tried to evade officers on foot and stopped only when two of them pointed guns at him.
Officer Robert Mydell of Glynn County police testified about Arbery's 2017 arrest on charges that he tried to steal a TV from a Walmart store. Court records show he pleaded guilty to shoplifting.
Two other officers testified they recalled encounters with Arbery, saying he became angry when questioned. He was not charged with crimes in either instance. And a local convenience store manager, Crystal Wilson, told the judge about a young Black man who several times stole food. Wilson said she recognized it was Arbery after seeing his photo in the newspaper after his death.
The judge did not rule on that evidence Wednesday, instead asking both sides to submit written briefs within 20 to 40 days.
The judge and lawyers planned to return to court Thursday to delve deeper into whether Arbery's mental health could be relevant to the case. Sheffield said jurors should be allowed to decide whether mental illness may have played a role in Arbery “engaging in hand-to-hand combat” with Travis McMichael before he was shot.
Dunikoski said defense attorneys are essentially seeking to tell a jury: "Mr. Arbery wasn’t right, he had some mental issues ... therefore it’s his fault they had to kill him.”
The judge chose not to hear testimony Wednesday on Arbery's mental health, expressing concern about discussing private medical records in open court.
All three men are charged with malice murder and other counts. Jury selection is scheduled to begin Oct. 18 in Brunswick, about 70 miles (112 kilometers) south of Savannah.
The case sparked a national outcry during a year of protests over killings of unarmed Black people. The Justice Department on April 28 added hate crime charges against the McMichaels and Bryan, who all pleaded not guilty to the federal counts before a U.S. magistrate judge Tuesday.
Prosecutors asked the judge to set aside until the trial a legal motion on whether jurors may see text messages and social media posts they contend show a lack of “racial goodwill” by all three defendants. They include a text message exchange from 2019 in which Travis McMichael twice uses a racist slur for Black people.
Dunikoski told the judge Wednesday prosecutors only intend to use that evidence “if it becomes relevant" during the trial.