Prosecutor, defense preview their cases at hearing

May 13—Defense attorneys for the three men accused of murder in the killing of Ahmaud Arbery argued Wednesday that a jury should hear of Arbery's past, saying previous run-ins with the law suggest mental instability and a disregard for authority.

The prosecution countered that past acts have no bearing on Feb. 23, 2020, the day that armed men pursued the unarmed Arbery in pickup trucks to a confrontation that ended in a fatal shooting in the Satilla Shores neighborhood.

During a day of pretrial procedural hearings with the first knock of the gavel still months away, what emerged Wednesday in Glynn County Superior Court was a clearer vision of the cases both sides plan to make. Chatham County Superior Court Judge Timothy Walmsley presided over the trial.

On hand in the county courthouse for the first time were Travis McMichael, Gregory McMichael and William "Roddie" Bryan, the three men accused of felony murder in the shooting death of Arbery. Due to COVID-19 pandemic precautions, the three have appeared in numerous previous pretrial hearings on video from the Glynn County Detention. Each has been held without bond in the county jail since their arrests by GBI agents last year on charges that also include false imprisonment and aggravated assault.

The two McMichaels wore suits and ties, seated next to their attorneys. Bryan wore a shirt and tie.

There is little dispute about what happened that Sunday afternoon last year, the bloody conclusion of which Bryan captured on cellphone video. What remains is how the two sides of the case frame these events for a jury. Jury selection is scheduled to begin Oct. 18.

Travis McMichael, 35, shot Arbery three times at close range with a 12-gauge shotgun as the two men struggled for possession of his gun on Holmes Road near Satilla Drive. After seeing Arbery run past their house on Satilla Drive moments earlier, 65-year-old Gregory McMichael and his son armed themselves and pursued Arbery in a pickup truck.

As Arbery ran past Bryan's house on Burford Road with the McMichaels chasing him, Bryan jumped in his pickup truck and joined the pursuit. Bryan videoed the grim scene as Arbery ran upon the McMichaels' pickup parked in the middle of Holmes Road, where Travis McMichael shot Arbery dead. A .357 magnum in his hand, Gregory McMichael watched the shooting from the truck bed.

Bryan's video sparked national outrage and cries of racial injustice when it was leaked online last May. Arbery was Black. The three defendants are White.

All three men face murder charges because prosecutors allege they all committed crimes that led to the shooting death, including false imprisonment by blocking Arbery's escape with their pickup trucks.

The McMichaels have said they suspected Arbery of burglary.

Decatur Attorney Jason Sheffield said the defense will argue that Travis McMichael fired in self defense as the men were attempting to make a citizen's arrest. Sheffield said Arbery did not live in the neighborhood and refused the armed McMichaels' request to stop and talk. He said Arbery then made the decision to "physically engage" with Travis McMichael.

Prosecuting attorney Linda Dunikoski said the men had no grounds to attempt a citizen's arrest and that they instigated the fatal showdown by arming themselves and pursing Arbery. He was on a public street and did nothing to provoke the McMichaels' response, she said.

"He had no obligation to stop and talk to strangers who tried to stop him with their pickup trucks and weapons," said Dunikoski, Cobb County's Assistant District Attorney. "The last I checked this is the United States of America. They weren't making a citizen's arrest. They were seeking to detain another American, unlawfully."

The defense introduced four previous encounters Arbery had with law enforcement, two of which ended in arrest. Sheffield said the incidents suggest a tendency by Arbery, when confronted, "to get angry and aggressive, physically and verbally."

Dunikoski asked the judge to rule such evidence as inadmissible. She repeated that it had no bearing on the McMichaels' actions that day, and that they had no knowledge of Arbery's past.

The defense presented several witnesses, including Glynn County School Police Chief Rod Ellis. Ellis recounted Arbery's arrest in December of 2013 on charges stemming from bringing a handgun into the Brunswick High School gymnasium during a basketball game. Arbery pleaded guilty in the case and was sentenced to five years of probation.

Glynn County Police officer Robert Mydell was called to the stand to testify about Arbery's arrest in 2017 for shoplifting at Walmart along with three juveniles. He pleaded guilty and was sentenced to probation.

County police officer Michael Kanago next took the stand, discussing an encounter with Arbery in 2017 at Townsend Park in the Arco community. Arbery shouted and cursed at the officer for questioning him, but no arrest was made. Burke County Sheriff's Office Deputy Jerry Jones took the stand to discuss a confrontation in August of 2018, during which Arbery was issued a warning for trespassing on the property of his grandmother's neighbor.

The defense has 20 days from Wednesday to finalize its argument to allow Arbery's past actions into the actual trial, Walmsley determined. The prosecution will have 20 days afterward to respond. Walmsley will then make a decision.

Sheffield argued that the incidents suggest a pattern of antagonistic behavior. Sheffield said Arbery's actions are consisted with a mental illness for which he was diagnosed by Glynn County's Gateway Behavioral Health Services. A former Gateway nurse testified that she diagnosed the illness in 2018 after typing Arbery's answers to questions on an assessment sheet into a computer. The diagnosis was confirmed by a supervising nurse, she said.

Dunikoski said Arbery's possible mental state in 2018 has no bearing on what happened that February day last year. She said admitting such evidence could set a precedent whereby a person's decision to seek help for mental illness could be used against them.

Walmsley stopped the discussion of Arbery's mental state. He said he would first need to make a decision on whether to allow the issue of mental health as evidence before deciding further about admitting an actual diagnosis, which then would become public record.

"One question is the most important, which is: Do we go down this road?" Walmsley said.

Walmsley said the issue will be picked up when the hearing resumes at 10 a.m. Thursday.

Sheffield and legal partner Robert Rubin represent Travis McMichael. Attorneys Frank and Laura Hogue of Macon are representing Gregory McMichael. Brunswick attorney Kevin Gough and Atlanta attorney Jessica Burton are representing Bryan.