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Will racist texts be allowed in hate crimes trial of 3 men convicted of Ahmaud Arbery's murder?

A new defense motion seeks to keep racist texts and other "highly inflammatory" comments from being used as proof that the murder of Ahmaud Arbery was a hate crime.

BRUNSWICK, Ga. — (Note: The video above is from a previous report.)

Racist texts, conversations and social media posts should not be allowed as evidence in the federal hate crimes trial of three men convicted of murdering Ahmaud Arbery, according to a new defense motion in the case.

The Dec. 30 motion asks a judge to block federal prosecutors from introducing any communications from William “Roddie” Bryan "suggesting [he] has racial animus towards African Americans” or “generally associates African Americans with criminality.” Bryan's attorney also wants to block “witness testimony that would suggest Bryan did not approve of his adopted daughter dating an African American man.”

Bryan is charged along with his former neighbors, Greg and Travis McMichael, with federal hate crimes and kidnapping charges in the death of Ahmaud Arbery, 25. The McMichaels also face federal gun charges. The three men were convicted of Arbery’s murder in state court in November. Each faces a minimum sentence of life in prison. A judge will decide whether they will have the possibility of parole at their Jan. 7 sentencing.

RELATED: Sentencing date set for 3 men convicted of murdering Ahmaud Arbery

The subject of race, largely avoided in the state case, will be the centerpiece of the federal trial. In order to get a hate crime conviction, prosecutors must prove racist attitudes or beliefs motivated the three men when they chased Arbery through their suburban Satilla Shores neighborhood, cornered and killed him.

"That's what they're going to be focusing on in federal court," says Atlanta-based trial attorney Esther Panitch. "What motivated the men to act the way they did against Ahmaud Arbery? … You don't have a statement from any of the defendants saying, 'I killed him because he was Black.' So you have to go inside the[ir] head. And that’s done by circumstantial evidence."

Prosecutors are expected to introduce some of the racist comments made by the defendants, which were discussed at their 2020 probable cause hearing. At that time, a GBI agent testified that Travis McMichael frequently used the N-word, saying, “He once said he loved his job [with the U.S. Coast Guard] because he was on a boat and there were not any N-words anywhere.”

GBI Agent Richard Dial also testified that Bryan used racial epithets, including some Dial said he had never even heard used.

In Bryan’s new motion in limine, his attorneys seek to exclude:

  • “Text messages on or about MLK Day in 2019 and 2020 between Bryan and friends which contain racially insensitive language, both direct and euphemistic."
  • “June 5, 2019, text message from Bryan to his ex-wife containing racially insensitive language."
  • “January 1, 2020, text messages between Bryan and his ex-wife where each uses racially insensitive language."
  • “Witness testimony that would suggest Bryan did not approve of his adopted daughter dating an African American man."

The motion also asks the judge to bar an Oct. 10, 2016, Facebook comment “regarding a friend’s stolen bike, suggesting that an African American was the likely suspect” as well as a racially tinged text message from May 21, 2019 “regarding health care and disability programs.”

According to Bryan’s motion, “The Government has no evidence that Defendant Bryan has ever harmed an African American or any person of color. Likewise, there are no communications by him suggesting approval of any harmful act toward African Americans. There is no evidence Bryan has ever associated with organizations hostile to African Americans (such as the KKK, White Nationalist organizations, the Proud Boys, etc.). In the absence of such evidence, the Government instead will seek to admit text exchanges such as those 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.”

It continues, “The evidence Defendant Bryan seeks to exclude is of a highly inflammatory nature and would significantly limit his ability to be fairly tried by an impartial jury. An African American juror would be particularly and rightfully angered at such language and would naturally be hyper-inclined to make a decision on an improper basis.”

Prosecutors have not yet filed a response to the motion.

Jury selection in the case is slated to begin Feb. 7, 2022. A juror questionnaire is being distributed to prospective jurors throughout Georgia’s Southern District. Jurors are directed to complete the questionnaire and return it no later than January 15, 2022.

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