BRUNSWICK, Ga. — Race defined the national debate around Ahmaud Arbery’s death from the beginning -- whether it was the white privilege allegedly afforded the three white men involved, who weren’t arrested for months, or the sense that Arbery was singled out because he was a Black man in a white neighborhood, or the alleged racist slurs and Confederate flag linked to the shooter, Travis McMichael.
But race was almost entirely absent from the trial of three men charged with Arbery’s murder, and it is not an issue the jury will consider when weighing the fates of McMichael, his father Greg, and their neighbor William “Roddie” Bryan.
The reason race didn't become an issue at trial is due to a mix of legal rules and timing. At the initial probable cause hearing in the case, prosecutors submitted racially inflammatory text messages and social media posts by all three defendants. They also alleged that Travis McMichael uttered the words, "fu***** n*****" while standing over a dead or dying Arbery. And in motions ahead of trial, they argued for permission to use images showing the Confederate flag vanity plate featured on the front of Travis McMichael's pickup truck.
However, the slur couldn't be introduced since the only witness, Roddie Bryan, didn't testify. The issue of whether prosecutors could introduce the racist texts and socially media posts (which faced a high hurdle, based on their questionable relevance to the specific crime) hadn't been decided by the judge before each side rested their case, so they became moot. And the flag, though visible in police body worn video, wasn't made an issue at trial.
For that reason, the jury will be asked to deliberate the most serious charge of malice murder without a clear motive. The state is not required to prove a motive to prove the crime, but given the stark definition of the charge -- the deliberate, intentional and illegal killing of another person, without provocation -- it certainly helps.
The issue emerged at Friday’s charge conference, when Travis McMichael's defense attorney Bob Rubin asked the judge to strike a jury instruction related to the malice murder charge. Georgia’s standard jury instruction on that charge includes this section:
“Motive -- The State does not have to prove motive to prove murder. Any evidence of motive has been admitted for your use in determining the Defendant’s state of mind at the time of the killing.”
Rubin argued that since no motive was presented as evidence, jurors would be misled by that instruction. But Prosecutor Linda Dunikoski said that she plans to assert in her closing arguments that the motive was the theft of Travis McMichael’s gun on Jan. 1, 2020.
“The state does feel that it did prove some motive,” she said. “And that evidence of motive is going to include Travis Michael writing down – the very first thing on his written statement [to police] is ‘my gun got stolen.’ And so, motive is: ‘I'm angry about my gun getting stolen, this guy probably stole it.’ This is a reasonable inference the state is going to go ahead and draw -- that he's angry about his gun being stolen, and he wants to blame somebody, and this is a perfect person to go ahead and blame.”
Dunikoski argued the judge should leave the jury instruction in place, both for that reason and a strategic one. “There is a reason to have this [jury instruction] in there, especially since the state does not have to prove motive to prove murder. And we don't want the jury – misguided -- thinking, ‘Well… they haven't proven motive, therefore they haven't proven murder.”
Rubin pushed back on that. “I'm not sure how the state's gonna argue that the gun was the motive, when the overwhelming evidence is the case is contrary to that --but that's their problem," he said. "[The jury instruction that says] ‘Any evidence of motive has been admitted for your use’ seems to imply that evidence of motive has been submitted. Again, the state seems to be arguing both ways -- that there wasn’t evidence, they don't have to prove it, but yet there was evidence from this gun being stolen. So I would object to [that jury instruction] being given in this case.”
As he did throughout Friday’s jury charge session, the judge sided with prosecutors.