The killers of Georgia jogger Ahmaud Arbery may claim self-defense. An earlier case-—and a local prosecutor's memo—may provide defense fodder.
Gary Arbery, an uncle to Ahmaud Arbery, speaks to demonstrators during a protest of the shooting death of his nephew at the Glynn County Courthouse on May 8, 2020, in Brunswick, Georgia. Gregory McMichael and Travis McMichael were arrested the previous night and charged with murder.
"Given the fact Arbery initiated the fight," wrote Barnhill then,"at the point Arbery grabbed the [suspect Travis McMichael's] shotgun, under Georgia Law McMichael was allowed to use deadly force to protect himself."Barnhill declined to discuss the Arbery case specifically because of ethics rules.
Lawyers for the McMichaels, who are still in custody, have characterized Arbery's death as a tragedy while denying that their clients are criminally responsible."So often the public accepts a narrative driven by an incomplete set of facts, one that vilifies a good person, based on a rush to judgment, which has happened in this case," Gregory McMichael's lawyer, Laura Hogan, said last week.
The McMichaels lived on Satilla Drive. Two doors down from them was a house construction site. The open site was owned by Larry English, who lived in Douglas, about 90 miles to the west. It was equipped with two motion-detector video surveillance cameras. Whenever the camera was triggered, it would send a text alert to English, who would notify the Glynn County Police Department, English's lawyer has said.
At about 7pm on February 11, around the time the surveillance camera was next triggered, Travis McMichael made a 9-1-1 call . In it, Travis reported a black male having just entered the construction site."When I saw him and backed up, he reached into his pocket and ran into the house," Travis told the operator."I don't know if he was armed or not but he looked like he was acting like he was." He said the man had"a flashlight looking through the house.
At that point, Bryan, from his car, made the now ubiquitous cellphone video. Bryan is following Arbery as he runs at a jogger's pace down the street. Arbery is approaching the McMichaels' pickup truck, parked at the right side of the road. Greg is in the bed of the truck, while Travis is standing to the left of the driver's side door, holding a shotgun.
Although the Brunswick District Attorney, Jackie Johnson, would have ordinarily handled the case, she deferred, because McMichael had worked as an investigator for her office. She therefore had the Glynn County police take the case to District Attorney Barnhill in Waycross, in the adjoining judicial district to the west. The next morning, Barnhill told the Glynn police that it looked to him to be a justifiable homicide, though he continued to hold the case while awaiting the autopsy report.
"It appears their intent was to stop and hold this suspect until law enforcement arrived," Barnhill wrote. The fact that the McMichaels were armed was lawful underCarlson, the University of Georgia law professor emeritus, says the citizen's arrest claim may be an"uphill battle." Carlson isn't sure the provision would apply, based on what we know so far.
Barnhill raised one additional defense in his letter—a surprising one."While we know McMichael had his finger on the trigger," Barnhill writes,"we do not know who caused the firings." What he means is that the gun may have gone off not because McMichael pulled the trigger, but rather because Arbery was pulling the barrel during the scuffle.
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