Jury Asks to Review Evidence in Arbery Murder Trial

The jury also heard the beginning of the 911 call that Gregory McMichael made on the day that Ahmaud Arbery was killed, saying, “There’s a Black man running down the street,” when the operator asked what his emergency was. The jury is now returning to the deliberation room.

The judge has brought the jury back into the courtroom to play the evidence, after being sure he knows exactly what the jurors want to review, including a short video of Ahmaud Arbery’s killing that will be played three times.

As the Rev. Al Sharpton led a prayer outside the courthouse with Ahmaud Arbery’s parents, inside the courtroom, a small group of his aunts and friends held hands in a circle and said their own prayer.

The group of 12 deliberated for more than five hours on Tuesday after Linda Dunikoski, the lead prosecutor, rested her case on Tuesday morning.

The indictment charges the defendants, Gregory McMichael, Travis McMichael and William “Roddie” Bryan, individually and as “parties concerned in the commission of a crime.” If the jury finds that one of the men committed a felony, it can convict all of them of that crime, on the basis that they were acting together.

To convict the men on the charge of malice murder, the jury would have to find that they had deliberately intended to kill, without considerable provocation.

The men are accused of four other felonies besides murder, but those charges could also lead to a murder conviction. In Georgia, causing a person’s death in the course of committing another felony is murder, regardless of whether the death was intentional or accidental. To convict the men of felony murder would not require jurors to find that the men intended to kill Mr. Arbery.

The judge told jurors that in the case of Mr. Bryant, the defendant who recorded the video of Mr. Arbery’s killing, they can also consider the lesser offenses of simple assault, reckless conduct and reckless driving instead of aggravated assault.

In Georgia those are misdemeanors, not felonies, so a conviction on one of the reduced charges would not expose Mr. Bryan to a felony murder charge in connection with that count.

On Monday, after about five and a half hours of deliberating, jurors told the judge that they wanted to continue deliberating. They soon changed their minds and decided to conclude deliberations for the day.

“What happened was an ugly encounter and an aberration,” Robert E. Griffin, a veteran civil rights activist, said. “I would never say racism doesn’t exist here, because it does. But we also have a history of Blacks and whites being able to sit down, talk and work together peacefully when other places didn’t.”

In the early 1960s, Brunswick, like many other Southern cities, bore the scars of Jim Crow laws. At one point, local officials were so firmly against integrating a public pool that they filled it with dirt rather than allowing Black and white children to swim together, Mr. Griffin said.

But change was quietly brewing. A coalition of Black and white Brunswick residents, led by faith leaders, was working together to integrate public spaces — without violence or publicity.

“We were meeting at night in the back of a bank. Black people and white people,” said Mr. Griffin, 84, who attended the meetings as part of the local N.A.A.C.P. “We would talk about the best ways we could make progress.”

He said the group met with white business leaders and persuaded them to hire Black workers and to integrate their establishments. “It wasn’t easy, particularly during that time period,” Mr. Griffin said, “but most of the people we worked with were reasonable and didn’t want bloodshed.”

Brunswick’s unlikely efforts earned the city national praise and a reputation as a “model Southern city.” The city’s approach was even profiled in a documentary called “The Quiet Conflict.”

Despite those early victories, stubborn economic, racial and social divides remain, serving as a backdrop to the trial.

Mr. Arbery’s fatal shooting in February 2020 — along with the killings of George Floyd and Breonna Taylor that year — was central to major protests and the national attention to systemic racism and policing.

“This is about the inequality of justice and conditions for minorities and especially for African Americans here in Glynn County,” said the Rev. Darren West, 52, who led rallies and marches after Mr. Arbery’s death. “In some ways, the city’s ‘quiet conflict’ legacy has masked the long history of inequality and injustice.”

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Judge Allows Nearly All-White Jury

Judge Timothy R. Walmsley of Glynn County Superior Court acknowledged that many Black jurors were excused by the defense. The jury is made up of 11 members who are white and one who is Black.

This court has found that there appears to be intentional discrimination in the panel. That’s that prima facie case. And I guess before I get into this, one of the challenges that I think counsel recognize in this case is the racial overtones in the case. Quite a few African American jurors were excused through preemptory strikes exercised by the defense, but that doesn’t mean that the court has the authority to reseat. The court is in a position where it’s got to make another finding, which is that the defendants are not genuine when they gave reason, and that the reason they were claiming is not the real reason those particular jurors were struck. The court is not going to place upon the defendants of finding that they are being disingenuous to the court or otherwise are not being truthful with the court, when it comes to their reasons for striking these jurors. So because of that and because of, again, the limitations I think [unclear] places upon this court’s analysis, I’m denying the motion.

How did such a jury get chosen?

Even as he approved the selection of jurors earlier this month, Judge Timothy R. Walmsley of Glynn County Superior Court, who is presiding in the trial, declared that there was an appearance of “intentional discrimination” at play.

But Judge Walmsley also said that defense lawyers had presented legitimate reasons, unrelated to race, to justify unseating eight Black potential jurors.

And that, the judge said, was enough for him to reject the prosecution’s effort to reseat them.

What may have seemed like convoluted logic to non-lawyers was actually the judge’s scrupulous adherence to a 35-year-old Supreme Court decision that was meant to remove racial bias from the jury selection process — but has come to be considered a failure by many legal scholars.

The guidelines established by that ruling, Batson v. Kentucky, were central to the intense legal fight that erupted in court over the issue. The argument raised fundamental questions about what it means to be a fair and impartial juror, particularly in a high-profile trial unfolding in a small community where nearly everyone has opinions about the case.

Defense lawyers told Judge Walmsley there were numerous reasons to unseat several Black candidates for the jury. One man, they said, had played high school football with Mr. Arbery. Another told lawyers that “this whole case is about racism.”

But the resulting makeup of the jury profoundly dismayed some local residents who already had concerns about whether the trial will be fair.

“This jury is like a black eye to those of us who have been here for generations, whose ancestors labored and toiled and set a foundation for this community,” said Delores Polite, a community activist and distant relative of Mr. Arbery.

More broadly, the racially lopsided jury, in a county that is about 27 percent Black and 64 percent white, underscores the enduring challenges that American courts face in applying what seems to be a simple constitutional principle: that equal justice “requires a criminal trial free of racial discrimination in the jury selection process,” as Supreme Court Justice Brett M. Kavanaugh put it in a ruling from 2019.

Travis and Gregory McMichael were also charged with using, carrying and brandishing a firearm. Travis McMichael is accused of shooting Mr. Arbery.

The men intimidated Mr. Arbery “because of Arbery’s race and color,” the eight-page federal indictment said. The McMichaels and Mr. Bryan are white; Mr. Arbery was Black.

Mr. Bryan told investigators that he heard Travis McMichael use a racial slur after shooting Mr. Arbery, fueling the notion that the killing was motivated by race. Mr. McMichael’s defense team has denied the claim.

The men did not face hate-crime charges at the state level because Georgia had no such law at the time of Mr. Arbery’s death. The state Supreme Court struck down a hate-crime statute in 2004 for being too vague, making Georgia one of the few states without such a statute.

But Mr. Arbery’s killing united Republican and Democratic lawmakers, leading them to pass a new hate-crime law months afterward.

Georgia’s new statute allows for extra penalties for people who commit crimes against others based on their race, gender, sexual orientation and other identities. Law enforcement officials are required to file reports of these kinds of crimes so the state can track them.

Hate-crime cases can be difficult to prosecute because of the need to prove that the motive is directly tied to a victim’s identity. Still, the application of the laws often provides reassurance to victims and their families because it acknowledges the distinct nature of those crimes.

“There’s a feeling it wasn’t just an ordinary crime, there was something particularly egregious about this offense, and hate-crime laws offer us a way of recognizing that and offer sort of an official way for our society to say these behaviors are particularly awful,” said Phyllis B. Gerstenfeld, a criminal justice professor at California State University, Stanislaus, with expertise in hate crimes.

The first test of Georgia’s law may be the trial of Robert Aaron Long, the man facing the death penalty for a shooting rampage at three spas in the Atlanta area in March. The use of the law in a case that has drawn national attention, however, does not mean its use will become widespread.

“Just because the law is seen as valid and has been used in a high-profile case or two, it still doesn’t mean that it’s going to necessarily have a lot of practical use,” Ms. Gerstenfeld said.

Here are the charges in the order listed in the indictment:

Count 1

Malice murder

This crime is defined in Georgia law as causing a person’s death with deliberate intention, without considerable provocation, and “where all the circumstances of the killing show an abandoned and malignant heart.” It is punishable by death, or by life imprisonment with or without possibility of parole.

Counts 2, 3, 4 AND 5

Felony murder

This charge applies when a death is caused in the course of committing another felony, “irrespective of malice” — in other words, whether or not the killing was intentional and unprovoked.

The other felonies in this case are listed in Counts 6 through 9 of the indictment; one count of felony murder is linked to each. If prosecutors prove beyond a reasonable doubt that the defendants committed one or more of those crimes and also caused Mr. Arbery’s death in the process, the basis would be laid for a conviction for felony murder.

Like malice murder, felony murder is punishable by death, or by life imprisonment with or without possibility of parole.

Count 6

Aggravated assault

One way Georgia law defines this crime is as an assault using a deadly weapon. This count charges the three men with attacking Mr. Arbery with a 12-gauge shotgun. It is punishable by imprisonment of one to 20 years.

Count 7

Aggravated assault

Another way Georgia law defines this crime is as an assault using “any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” This count charges the defendants with using two pickup trucks to assault Mr. Arbery. It is punishable by imprisonment of one to 20 years.

Count 8

False imprisonment

This charge applies when a person without legal authority “arrests, confines, or detains” another person “in violation of the personal liberty” of that person. Specifically, the defendants are charged with using their pickup trucks to chase, confine and detain Mr. Arbery “without legal authority.”

False imprisonment is punishable by one to 10 years in prison.

Count 9

Criminal attempt to commit a felony

Georgia law defines criminal attempt as performing “any act which constitutes a substantial step” toward the intentional commission of a crime — in this case, the false imprisonment charged in Count 8. A defendant can be convicted either of completing a particular crime or of attempting it, but not both.

Because false imprisonment is a felony, attempting it is also a felony, punishable by half the attempted crime’s maximum sentence: in this case, one to five years in prison.