New Evidence in Arbery Shooting
The preliminary hearing revealed a damning case against the shooter of a young black man.
Disturbing testimony paints Travis McMichael as a vile racist who not only murdered Ahmaud Arbery but taunted him at his dying breath.
CNN (“Ahmaud Arbery was hit with a truck before he died, and his killer allegedly used a racial slur, investigator testifies“):
William Bryan told investigators he heard Travis McMichael use a racial epithet after fatally shooting Ahmaud Arbery in Glynn County, a Georgia Bureau of Investigation agent testified Thursday at a preliminary hearing.
The hearing lasted about seven hours, with the judge ruling all three defendants — McMichael; his father, Gregory McMichael; and William “Roddie” Bryan — would stand trial on all charges.
The details of Arbery’s last moments emerged amid a week of nationwide protests over another killing — that of George Floyd by police in Minneapolis — and demonstrators have also called for justice in Arbery’s case.
GBI Assistant Special Agent in Charge Richard Dial testified that Bryan told police Travis McMichael said “f***ing n***er” after three blasts from his shotgun left Arbery dead in the street in the Satilla Shores neighborhood in February. Body camera footage also showed a Confederate flag sticker on the toolbox of McMichael’s truck, he said.
On cross-examination, Dial testified Bryan mentioned the slur in a May 13 GBI interview, and to Dial’s knowledge, Bryan had not previously made the allegation, including during a May 11 interview.However, the agent said, there were “numerous times” on social media and via messaging services that McMichael used the same slur, once messaging someone that he loved his job because there “weren’t any N-words anywhere.”
In another instance sometime before the shooting, he replied in an Instagram message that things would be better if someone had “blown that N-word’s head off,” Dial testified. Dial did not say to whom McMichael was referring. Dial was not asked for more context.
Arbery’s mother, Wanda Cooper, told CNN’s Chris Cuomo she was devastated when she heard Dial’s testimony.“I often imagine the last minutes of my son’s life. I didn’t imagine it would be that harsh, but to learn that that statement was made in the last seconds of his life … it was very heartbreaking,” she said.
Bryan, too, had several messages on his phone that included “racial” terms and indicated he may have prejudged Arbery when he saw him that day, Dial said.
“There’s evidence of Mr. Bryan’s racist attitude in his communications, and from that I extrapolate the reason why he made assumptions he did that day,” he said. “He saw a man running down the road with a truck following him, and I believe he made certain assumptions that were, at least in part, based upon his racial bias.”
NYT (“Judge Finds Probable Cause for Murder Charges in Arbery Case“) adds:
The explosive revelation, suggesting overt racism was at play in the case, came in a hearing in Brunswick, Ga., that ended with Judge Wallace E. Harrell of Glynn County Magistrate Court determining that sufficient probable cause existed to support the murder charges brought against the three men.
There were several fiery moments in the hearing. At one point, after a lawyer for one defendant referred to the Book of Amos, the special prosecutor Jesse Evans cited another Bible verse.
“I’ve got one,” he said. “What about ‘Love thy neighbor’?” The three defendants, Mr. Evans said, had hunted down a “defenseless” man. “He was tormented, he was hunted, he was targeted,” Mr. Evans said.
[…]
A federal civil rights probe into Mr. Floyd’s death was announced last Friday by Attorney General William P. Barr. Lawyers for Mr. Arbery’s family have said that a federal civil rights probe into the Arbery case is also underway.
In an interview on Thursday, L. Chris Stewart, the lawyer for Mr. Arbery’s mother, said the revelation of the racist language should be enough to trigger indictments under the federal hate crimes statute.
“This is the proof they need to actually bring charges,” he said.
In my first foray into this case, a May 9 post simply titled “The Ahmaud Arbery Shooting,” I observed,
Facebook friends are calling this “murder” and assuming racist intent. But there’s no evidence of which I’m aware, other than that they’re white men from small-town Georgia, that these men are bigots. Much less that they intended to murder Arbery.
My strong guess, based on the cursory evidence I’ve seen, is that Arbery was indeed an innocent man killed for no good reason. But, absent strong evidence to the contrary, this looks to me like ill-advised vigilantism gone wrong.
Almost immediately subsequent to writing that, I learned that Georgia law is much less forgiving of vigilante activity than local authorities had claimed. But I maintained that, aside from our prejudices, there was no evidence from the video of ill intent.
Well, now we have it.
When I first read the headlines and social media reactions yesterday afternoon, the focus was on the words shouted by the younger McMichael when he shot Arbery. My initial instinct was that they comported with both the circumstances surrounding the case and my own prejudices about lower-class whites in the rural South, reinforced by the unfortunate mugshot of the shooter. My second thought, reinforced by my prejudices against the American justice system, was that it was entirely possible Bryan was coached into inflammatory testimony in exchange for leniency.
The broader report, though, reveals all manner of animus on the part of Travis McMichael that goes well beyond the banal racism that I had always acknowledged was a backdrop to the case.
I am, on principle, opposed to hate crime laws, which I see as the criminalization of unpopular ideas. But it’s perfectly reasonable—and, indeed, required—to factor in racial animus in this case in terms of both charging and sentencing. The idea of mens rea, the guilty mind, is part and parcel of our legal system going back to the British common law.
My contention from the beginning was that should very much matter to us how McMichael viewed Arbery. There was no theory of the case in which he was not guilty of homicide. But the new evidence seems to indicate that he murdered a man because he of his race and enjoyed doing so. That’s a more horrendous crime than an illegal chase of a suspected burglar that spun out of control.
Do you not see how you keep bending over backwards to come up with excuses why this was perfectly okay? What is wrong with you?
James, re: hate crime laws. As a society, we have laws against murder and assault. Many times, though, we add additional penalties for what are considered especially heinous crimes or ones that require an especially harsh message to be sent. So, for example, there are additional penalties for killing a police officer, or assaulting a pregnant woman. I have no problem in these cases. Do you?
While it is prudent to wait for concrete evidence, I will relay an old bit of medical advice: if you see hoof prints, you should assume they were made by a horse rather than a zebra.
Mens rea isn’t just for “hate crime” laws, you know. That’s what separates first- and second-degree murder in many places. That’s needed for burglary convictions in some jurisdictions as well.
Are these criminalization of unpopular ideas?
They aren’t. Neither are “hate crime” laws. You seem to be confused between hate crimes and “thoughtcrime”.
I lived in Georgia for a while. I was in Georgia two days ago. Georgia is where they turned a *mountain* into a monument to slavery. Georgia is where a guy laughed when he told me that he kept dead batteries in the console of his truck so if he saw a black guy walking beside the road he can fling the batteries at the guy. I would have been absolutely gobsmacked if they hadn’t found instances of him saying n***** this, n***** that.
I think the qualities of offering the benefit of doubt and being slow to condemn are overall good qualities. I think these qualities are in part responsible for James shifting away from the Republican Party.
They are hard to front on the internet in a racially charged case. Nobody reserves judgement on these things these days. It can be hard to trust that someone will apply these principles in a consistent and even-handed way. It’s like we’re losing our faith in each other, which, well, it upsets and frightens me.
And James is correct that people often assume that a white man that looks a certain way is also going to act a certain way (I’m talking about his appearance, not confederate flag stickers). That’s far less of a burden than the burden of being African-Americans, but it’s still prejudice.
And there’s the matter of how many news outlets work now. Many of them are avowedly partisan, and will fan outrage for the sake of clicks. They typically do this not by lying, but by being selective with facts. Their particular ideology might well determine in which way they fan outrage, but BSDI is definitely a thing. So waiting to gather more facts is an instinct I share with James.
I read elsewhere that Arbery had prior been shot in the chest and hit by a truck by the time he turned and tried to grab the shotgun. He ran until he couldn’t run any more. He exercised his right to self-defense in pretty much an idealized way.
So often in these things there’s so much more ambiguity. But there doesn’t seem to be any here. None at all.
On another thread, Matt Bernius was lamenting how our justice system is so often tangled up with moralistic punishment…well, after learning all of this about this racist POS who murdered Arbery, is it any wonder that so many people want moralistic punishment…
Racist intent was evident from the word go- vigilante justice in the South is another word for racism- can’t believe we still have to explain this.
@MarkedMan: ” Many times, though, we add additional penalties for what are considered especially heinous crimes or ones that require an especially harsh message to be sent. ”
I live in Michigan, where 1st degree murder (i.e., premeditated) carries an automatic sentence of life in prison with no parole.
That’s based on intent.
In mid-May, Lindsay McMichael, Travis’s younger sister, told a British tabloid (The Sun, I believe) that she’s dated only non-white since the age of 19, and that her father and brother had totally loved all these guys.
I guess that ploy didn’t work too well, particularly in view of current developments. I can’t really imagine either Travis or Greg welcoming a man of color into the bosom of their family.
James, I had read your original article.
What struck me (and many commenters, IMHO) was that step after step after step, you gave all benefit of the doubt to the killers. You started with the assumption that for each thing they did, they were blameless.
James: “Well, now we have it.”
No, James, now you have it. The rest of us had it a few weeks ago. You should change “we” to “I” and please don’t drag us into your personal epiphany.
@Barry: I’ll let James speak for himself other than to say that despite the grief I gave him in the OP, I don’t think that’s an accurate representation of his views.
Geez, people. James may have slow-walked it (which is his prerogative), but he still got there.
There is an ample supply of opposition to the ideals of justice sought for African-Americans. There is enough urgency in focusing on the hard cases. Find ways to give allies the space to figure it out.
I suspect Barrie might plead out and give states evidence.
@Scott F.:
I completely agree that James got there. I also think it’s worth noting how the blockers to him getting there (beyond his noted pragmatism) are the things that helped create our historical moment.
#1 – A deference to law enforcement.
If you got back to his original thoughts, he couldn’t believe that a trained law enforcement officer would make the mistakes that Gregory McMichael did. There had to be a better explanation.
Likewise, he wondered why to Police didn’t arrest at the time and the Prosecutor was reluctant to bring charges. Again, there had to be a better explanation.
This is something that police departments have exploited for years FWIW. We’re seeing it happen even today when, knowing there was video of the event, Buffalo police released an initial statement that after a provoked scuffle a man tripped and fell injuring himself.
#2 – A reluctance to look deeply at implicit and explicit racial bias as being a critical factor in people’s treatment by our system
Note, that’s not just in McMichael’s actions, but also in the way that Police and Prosecutors treated the investigation.
Ultimately, I’m happy that James made it here. And I’m not writing the above to give him crap about his process/journey from point A to here. It’s just to show (again) how ingrained this is within our culture.
@Scott F.:
Yes, doing the “I told you so dance” is tempting for many but ultimately does nothing. It can be frustrating to see someone you respect slow-walk to what seems like an obvious conclusion but frankly, that’s how the world works. What’s clear to you might not be so clear to others and everyone’s got different socialization and rationalizations coloring their worldview. It’s what used to be called a teachable moment and it’s gotten lost in our current finger-pointing culture. How can we ever expect people to change when we don’t help them learn or rag on them when they do?
James, for what’s its worth, I’m very glad you’re willing to take our crap, review it and then incorporate into your worldview as evidence instead of accusation. Far too many double down rather then admit they are wrong or their beliefs may be damaging. You may have gotten defensive but you listened, learned and more importantly, when evidence came out to challenge your stance, you accepted it as truth. I do wish you’d gotten here sooner but hey, we all got our own issues and personal blindspots. Now if only we can get people like James on the jury down there, I’d feel much better about how this is all going to turn out…
Life is a journey. And conservatism is more a matter of personality than policy, which makes it hard to change. I’ll applaud our host for sharing some of his journey. And maybe try in future to be temperate and diplomatic when disagreeing.
@Jay L Gischer:
Self-defense as a concept has been perverted by the gun nuts. It’s in the name – defense, meaning not starting the issue and retreating as needed. Someone who is defending is not attacking, but rather having been engaged continues the engagement only as long as needed to protect themselves. The duty to retreat is inherent to self-defense because you don’t want the fight to continue.
Arbery was engaged and tried to get the hell out of there. It was only when retreat was cut off that he attempted to physically challenge them and take the weapon. That’s where the gun nuts start screaming “He tried to take the gun – he’s the aggressor!!” because their focus is the weapon as the source of contention. They’re saying that about the elderly protester that was attacked in Buffalo last night, btw. That it looked like he “reached for the weapon” so the cop was justified sending an old man flying and cracking his skull open. Violence in defense of the *weapon* is permissible to them but violence against the unarmed person doesn’t concern them at all as they “deserve” it.
@Stormy Dragon:
I have never once suggested that any of this was “perfectly okay.” Rather, I’m assessing the evidence. In this case, I’m pointing out that prosecutors and police frequently coerce or engage in outright fraud.
@MarkedMan: @Raoul:
I think, as noted in this post, that it’s not only reasonable but required to factor aggravating circumstances, like racial animus, into sentencing. I don’t think we should have a separate crime for murder with racist intent. Nor do I think killing a police officer is more egregious than killing any other citizen. Assaulting a visibly pregnant woman is more heinous because of its double effect.
@Kathy: @Teve: I lived in Georgia for a year and the Deep South for many, many years. Because there are a lot of deeply racist people there is not evidence that a particular individual accused of a crime is deeply racist.
@Jay L Gischer: Thanks. Yes, my instinct is to look at the available evidence, formulate a hypothesis, and then adjust when new evidence becomes available.
@Barry:
That’s the essence of our justice system.
Nope. I started with the assumption that they were telling the truth about why did did what they did.
@James Joyner:
This isn’t a court; playing dumb and then attributing it to what goes on is a trial is just an excuse for living in denial. As the line in A Man for All Seasons goes, “the world must construe according to its wits; this court must construe according to the law.” What do your wits tell you?
Confused: N-words quoted in the article – are they censoring strangely or the actual utilisation by the subjects was this inartful?
@KM: FWIW, I spent 1o years in Rochester, 60 miles east of Buffalo. The Buffalo cops had a bad reputation even then.
When someone finally gets there, it’s better to congratulate them for getting there rather than berating them for how long it took or for being late.
From a column by George Will (!!!) Bear in mind that this is the era of our Grandparents, our “Greatest Generation”. Think about the depravity of the man who gifted the charm bracelet described below.
@mattbernius: @KM: You’ve both touched on what is crucial to me and it’s why I continue to lurk and occasionally comment at OTB.
This is our historical moment and if it is to come to anything, we would be better served by coming to understand how the James Joyners of the country reconsidered their prior prejudices and overcame the “blockers” of new thinking. It is certainly more important than digging on them for not getting there sooner or to a purity level sufficient to our liking. James’ path of discovery (Sorry that sounds pretentious, but it’s the right idea.) is one we would want to see modeled in peers who will sit in judgement of the McMichaels. If we are open to learning how James worked through it, then we can help others like him work through it as well.
@gVOR08: And in that spirit: Our legal system is a bloody disaster. Much of it is designed around the comment from another blog that went viral, that conservatives believe there must be an in-group protected by the law but not bound by it, and an out-group, bound by the law but not protected by it. Charge stacking, coaching witnesses, charging witnesses to coerce testimony, overcharging to bargain down to a plea, elected prosecutors, what have you are bad things. They would be worth several posts, particularly if we had our lawyer, Doug, back. But they are systemic bad things, not unique to this and the Chauvin case. They are still bad things when applied to some poor black guy who’s guilty of robbing a C store at gunpoint.
Oh, and our prison system is worse. And that fact is irrelevant to prosecuting a cop like Chauvin. At least up to the sentencing phase.
@gVOR08:
The fact federal agents manipulate people into lying so that they can charge them with obstruction in cases where there’s not enough evidence to support some other charge is a problem. But the people complaining about Manafort don’t propose changing anything about this, they just want to use it as an excuse to get their ally off the hook.
Selectively making political allies above the law doesn’t make the system better, it makes it worse.
No one likes to say ‘I told you so,’ more than I do. But we don’t have so many allies we can start subjecting them to purity tests.
It’s not so easy to root out prejudices, it’s a lifetime’s work. I caught myself a couple weeks ago, reading about the conquistadors, realizing that mentally I was on the side of the Spaniards, subconsciously making excuses for them. WTF? At that point in history Spaniards were purging Jews, ‘my’ people. But they were the more familiar culture.
Everyone who is ‘woke’ now was awakened at some point. Let he who is without sin cast the first stone. An ally is an ally.
@James Joyner: “Yes, my instinct is to look at the available evidence, formulate a hypothesis, and then adjust when new evidence becomes available.”
And they still allow you on the internet?
@James Joyner:
I think that is your problem, right there. People seldom tell the truth about why they do what they do, often even to themselves. People’s after-the-fact statements are often just justifications, and are at best sign-posts for where to look for evidence of intent, but not evidence themselves.
Although it does remind me of this exchange from one of my favorite episodes of The X-Files, Clyde Bruckman’s Final Repose
@Stormy Dragon:
Perhaps his wits tell him that except in instances of split second danger (ie a potential car crash), the best approach is to hold off making his decision until all available evidence has been gathered? I’d say James has handled this well — as the evidence mounted he changed positions. That’s what we’re taught to do in science, in engineering, in philosophy, and I suspect in law as well. Its also what works best in our day to day interactions with people.
If nothing else, it helps avoid things like the Duke lacrosse team trial and the Rolling Stone rape hoax saga, both of which have since been used to discredit very real crimes — ie everything is now a hoax. Most of the time the evidence will, as in this case, show the racism involved (the Duke and Rolling Stone cases were rare examples of hoaxes) — so why not wait until the investigation is done?
@Stormy Dragon:
* If McMichael had followed this protocol we might not have a murder to be arguing about.
* If this protocol was SOP for police, there’d be a lot less for people to be rioting about.
What I find interesting is that you denounce others for making snap judgments (that you despise) absent information–and then insist that James (and others who share his philosophy) are somehow “very wrong” for… failing to make snap judgments (that you like) absent information.
Presuming innocence and waiting for data before making judgments is not only for courtrooms. It’s the way we should all approach life. Racism is a failure to do this. Bigotry is a failure to do this. Homophobia, transphobia, Islamaphobia, nationalism, racial supremacy, Antifa, Boogaloo, extremism, radicalism, and… a thousand other things you hate are all a failure to assume innocence and wait for proof.
My SOP is the same as James’. I can only hope that someday it becomes so integral to daily life throughout the world that we never even question it.
James:
Thank you.
I’m sure you get far more shit for it than me–since you’re blogging daily–but it’s heartening to see someone who doesn’t leap to conclusions, waits for information, and adjusts their views accordingly.
My father (God rest his soul) was born in 1922 and never caught up to the political correctness of the 80’s–much less beyond. But he taught me that you judge a person on who that person is and what that person does. You look at the facts, you look at the evidence, you give the benefit of the doubt, and you adjust your assessment when the information says you need to.
I’m not naive. I know the horrors that we can do. I just want to make sure before I cast judgment. Because I want the same consideration from others.
@Michael Reynolds:..without sin…
I prefer the Lenny Bruce interpretation of this passage…
If you can take the hot lead enema, then you can cast the first stone.
If you immediately believe the authority’s account and dismiss the accused, you are making a snap judgement.
@MarkedMan:..1o years in Rochester…
@Stormy Dragon:
I thought that the initial account, that an ex-cop and his son had chased someone they thought was a criminal suspect down to make a citizen’s arrest, was perfectly plausible. I thought it more likely than not they they would not have reacted the same way to a white perpetrator, given the presumption that implicit bias was at work. We now have evidence that the son, at least, was a virulent racist with violent intent. We have no direct evidence that his father shares those beliefs, but it’s certainly the way to bet.
@Gustopher:
That’s certainly fair.
@de stijl:
In this case, there was no ‘he said, he said.’ The victim was dead. We have evidence, via the video, of who shot him. We had, initially, only the account of the shooters as to what led up to that. Now, we have more evidence.
@James Joyner:
I think this is the crux of the divergence.
You heard a story that sounded plausible to you. Others heard that story as the vigilante equivalent of “the dog ate my homework” — a well-known transparent excuse. When a teacher’s default position is to assume that “the dog ate my homework” is a lie, we do not criticize the teacher for failing to wait until all the evidence is in before forming any opinions.
Viewed in that light, people above were not criticizing you for believing in the importance of evidence and facts. They were criticizing you for being naive enough that you thought “the dog ate my homework” was a plausible scenario.
@DrDaveT:
Why does that matter so long as he changes his opinion as the facts come in? Its pretty common in science and engineering for an initial guess to be wrong, even among excellent engineers. Good scientists and engineers are those that call for further investigation (which James did), and then change their opinion as the evidence warrants (which James did).
If James had said he thought that was plausible and no further investigation was required, then the criticism would have been on the mark. As it was, his initial guess caused no harm because whether correct or not it was going to be superseded by investigation that he called for, whose evidence he followed.
The point isn’t to be right in initial guesses — few of us are in most new circumstances (as anyone who has done scientific or engineering research will tell you). The point is to realize when you’re guessing and call for investigation, and then to follow the resulting evidence.
In the blogosphere the norm is to jump to instant conclusions. If you turn out to be right you get to say “I told you so”. If you are wrong it just gets forgotten. So I greatly appreciate James approach. Not only is it the way we should approach people in real life, it makes for more substantial conclusions. I have developed a lot of disdain for conservative reasoning over the last few years. It has devolved to a system of strong feelings generated by their moral and spiritual leader, Trump, and is generally devoid of evidence and/or logic. When one does what James has done here in reaching his conclusion it is bedrock solid. The only way to dispute it is to resort to emotional arguments, which is what we will see on the part of the right who will to try to continue to defend these killers.
Thanks James.
Steve
@Northerner:
If he refrains from opining on such subjects until he has the relevant specific facts, it wouldn’t matter at all. Especially if he eventually learns that dogs don’t really eat homework.
@DrDaveT:
Why should he be one of the few Web exceptions that waits until they have all the relevant facts? Seriously, almost everyone was putting out their opinions before all the facts were in. His guess was wrong, but as I said, that’s irrelevant as he called for investigation to find the facts, and then changed his position to match the facts.
I’d much rather drive over a bridge designed by an engineer whose initial guess was wrong 80% of the time but always did further research and changed their design to match what the research showed, than one designed by an engineer whose initial guess was right 80% of the time but who went with that guess without bothering with further investigation (and that’s the most common situation in Internet sites of almost any kind — and even happens in engineering occasionally, resulting in collapsing bridges and overpasses because someone thought someone was so obvious it didn’t need to be calculated and prototyped).
And while dogs don’t eat homework, they sometimes do shred it (though cats are more likely to do that), along with shoes and other convenient replacement chew-toys. Especially puppies. Of course it could be argued that your homework shouldn’t be in range of a puppy’s mouth, but that’s a different issue.
In my opinion, what’s also horrifying about this death is the total lack of interest the local police showed in the matter. They didn’t even look at the situation, because one of the guys involved was a “good ol’ buddy” of theirs and obviously they had to believe his story. (I ran into an article which tracked down other cases where the local police had been similarly indifferent, where the victim was white. So it’s not just racism–there’s also an “in-group”/”outer-group” reaction going on here. )
Giving default credence to the stated account by a person of authority as a habit is a bias.
I can applaud someone for overcoming it in one or a few instaces, but still note the bias.
@de stijl:
Sure. But from what I’ve seen, James was giving default credence to the person accused of a crime — that’s opposite to giving default credence to authority, given that its the authorities that make the charges and prosecute.
That’s the reverse of the usual conservative position, which is tough on crime, and “guilty until proven innocent” … ie most conservatives feel that if you’re charged with something you’re probably guilty. In this regard at least, James is being more liberal than conservative. And given the overwhelming power of the authorities, I think most of the time “innocent until proven guilty” has a much better historical record than “guilty until proven innocent”.
Though I’ll admit that lately some of the extreme left wing is echoing the conservative position about “guilty until proven innocent”, the main difference being disagreement over which crimes it applies to.