A judge will determine if defense attorneys can use Ahmaud Arbery’s mental health records to help absolve his alleged killers during their respective murder trials later this year.
Superior Court Judge Timothy R. Wamsley, the judge presiding over all three cases, heard two days of arguments May 12 and 13 in a Brunswick courtroom. It was a pivotal hearing in the cases against the three white men accused of hunting Arbery down and killing him.
William “Roddie” Bryan, Greg McMichael, 65, and his 35-year-old son Travis face life in prison without the possibility of parole if they’re convicted of murder. Jury selection is set to begin Oct. 18 to decide their fates.
The defendants were present with their respective legal teams during last week’s legal showdown. Defense attorneys wrangled with prosecutors or a dozen motions that have been filed in the three cases over the past year. Some were serious matters, while others were housekeeping issues in preparation for the trial.
Arbery, a 25-year-old Black man, was fatally shot three times as he and Travis McMichael struggled over a shotgun on Feb. 23, 2020. He and his father Gregory McMichael stalked Arbery in a pickup truck when they spotted him jogging through their Brunswick, Georgia, neighborhood. The father-son duo told authorities he fit the description of a suspected burglar and claimed they were trying to make a citizen’s arrest.
Bryan, one of the McMichaels’ neighbors, trailed Arbery in a second vehicle and recorded the shooting on his cellphone.
No charges were filed in the case until the video was leaked to the media on May 5. It quickly went viral.
The father and son were arrested by the Georgia Bureau of Investigation on May 7 and Bryan was taken into custody by the GBI 14 days later. All three white men now face felony murder charges and are being held without bond as they await their day in court.
The alleged killers also face federal charges. The U.S. Department of Justice announced the hate crime indictments against the trio April 28 after charging them with interference with rights and attempted kidnapping. All three pleaded not guilty to the federal charges on May 11, according to CNN.
Jason Sheffield, the Decatur, Georgia, attorney representing both McMichaels, presented a timeline of run-ins Arbery had with police, deputies, neighbors, co-workers and family members between 2013 and his death. The defendants legal team sought to convince Wamsley that those prior encounters should be admitted during trial to prove Arbery’s history of mental illness.
A nurse who evaluated Arbery in December 2018 and diagnosed him with schizoaffective disorder testified about his mental disorder briefly. Wamsley interrupted the testimony and said he was uneasy about publicly disclosing Arbery’s mental health history with no valid reason. The judge kept them under seal for the time and asked Sheffield to show Arbery’s mental health is relevant to the case.
“They are significant and the moment they become a record in this case — If the court determines that they are not relevant — the way that this case has gone, they will be everywhere. They are part of the court’s record,” Wamsley said of the victim’s medical history. “And I have a real problem with simply allowing that. And that’s the problem I’ve got right now. So I’m trying to figure out if there’s a different way to do this.”
Sheffield said the incidents showed a pattern of behavior in which Arbery either ran away or became verbally or physically aggressive when “authority figures” confronted him about his alleged misdeeds. According to the court motions, Sheffield and company contend Arbery used jogging a “cover” to commit crimes.
That modus operandi, he argued, played out again during the fateful day when the McMichaels confronted him about being in the neighborhood.
“[These are] acts that are inherently part of the trial of this case,” Sheffield said. “We believe that this [character] evidence will speak to several issues that are inherently locked within this case. That cannot be removed from the case because they are so fundamental to the issue.”
The defense lawyers presented evidence and testimony from a handful of brushes Arbery had with the law. One was a December 2013 incident when he was arrested for trying to bring a gun onto his high school’s campus. A Glynn County police officer also testified about arresting Arbery in December 2017 for trying to steal a 65-inch television from Walmart.
Senior Assistant District Attorney Linda Dunikoski reminded Wamsley that the defendants’ attorneys plan to argue that they acted in self-defense while attempting to make a citizens arrest. She argued Arbery had no obligation to heed their commands and presented no imminent threat that warranted their lethal force.
“If you’re going to take the law into your own hands, you had better know what the law is,” she said.
Dunikoski claimed Bryan and the McMichaels “cornered him like a rat” and said jurors will have to weigh the reasonableness of their actions. She emphasized Arbery’s past is not relevant to the allegations against the three men.
“The jury does not need any of this in order to answer any of these questions,” she said. “First off, in a self-defense case, you cannot start it. If you’re the first aggressor, you cannot go ahead and murder somebody. You can’t claim self-defense if you started it. They started this when Greg McMichael saw Ahmaud Arbery running down the street. They had no knowledge that he had been inside 220 Satilla Shores just moments earlier.”
Meanwhile, the defense teams tried to keep incriminating phone calls and text records out of evidence that could be used to show racial animus. Those include an October 2019 Facebook message post when Travis McMichael commented “slanted-eyed f–ks.” In another Facebook post a month later, Travis McMichael talked about “shooting a crackhead coon with gold teeth” armed with a high-point .45-caliber gun. Zach Langford, one of McMichael’s best friends, responded to the comment saying the “coon” needed Newport cigarettes and a “40.”
Langford claimed McMichael was joking. When prosecutors confronted Langford about the November 2019 posts during a bond hearing last year, he claimed McMichael was referring to a “raccoon” in the messages.
Greg McMichael also made incriminating comments during phone calls he made from the Glynn County Jail after his arrest. While discussing Arbery’s killing with his brother in one phone call, Gregor McMichael said “no good deed goes unpunished.” In another phone call, he told his wife, Leigh, to “get rid of it,” “make it disappear,” and “make it go away” while discussing their daughter’s social media posts, court documents show.
The elder McMichael also instructed his wife to delete his social media posts. During another call, he tells her to direct a third party not to answer questions.
“When he answers the phone, tell him flat out not to say anything,” prosecutors allege.
McMichael’s attorneys argued the jailhouse phone calls are private and told Wamsley that allowing them into evidence would incriminate McMichael and violate his rights to due process.
During the first day of last week’s hearing, Bryan’s defense attorney Kevin Gough argued that Cobb County District Attorney Flynn Broady Jr. was illegally appointed as special prosecutor. Georgia Attorney General Chris Carr appointed Broady to oversee the cases on Feb. 5, just over a month after he was sworn into office.
Broady toppled Republican incumbent Joyette Holmes and assumed office as Cobb’s new top prosecutor Jan. 4. Holmes’ office handled the murder cases for 7 1/2 months before she departed.
Gough subpoenaed Broady as well as Assistant Cobb County DA Jesse Evans to testify during last week’s hearing. Evans had been lead counsel for all three murder cases before he tendered his resignation from the DA’s office late last month. He’s slated to officially step down May 28.
Greg McMichael was a chief investigator in the Brunswick DA’s office for more than 20 years. Evans was a seasoned litigator for the Cobb County DA and led several high-profile prosecutions for the office. Evans worked on a case with Gregory McMichael about five years ago — McMichael retired in 2019. Gough raised concerns over their contact and also alleged that prosecutors rushed the case to the grand jury ahead of all the other cases on Cobb County’s docket.
“The state rushed this case to indictment to appease the woke Black mob, which seems to be gaining ever growing influence in this country,” he said.
Gough asked Wamsley to order prosecutors to produce any communication between the DA’s office and Gregory McMichael between 2011 and 2020. Dunikoski, who has taken over as lead counsel in the cases, called Gough’s request “incredibly burdensome” and said many of the Cobb County DA employees who worked during McMichael’s tenure have left.
Gough cited some of the rhetoric Broady used to attack Holmes during his campaign and accused him of aligning himself with the Democratic Party by being a vocal supporter of then candidates Joe Biden and Kamala Harris. He argued that Broady made “outrageously partisan statements” related to the murder cases on the campaign trail and also endorsed the Black Lives Matter movement. Gough speculated that Broady may have had private discussions with Biden or prominent civil rights advocates like Lee Merritt, Benjamin Crump and Shaun King about the case.
“We are entitled to have any information that would reasonably call into question whether the Cobb County District Attorneys Office should be handling this case,” Gough argued during the hearing. “If there’s any question as to whether Mr. Broady has developed a personal interest in this case — either when he was a candidate or subsequently — it’s appropriate.”
Dunikoski told Wamsley that Broady wasn’t the DA at the time and said Bryan’s attorney didn’t show any evidence that merited him being removed.
“It doesn’t reach any sort of a threshold for disqualification due to an ‘interest’ in this case,” she said.
Wamsley quashed both Broady and Evans’ subpoenas. He gave prosecutors 10 days to release to him any correspondence between Greg McMichael and the Cobb County DA’s office. He said he would review those records to determine any documents should be turned over to the defense attorneys.