That case may be tougher to make.
Bryan’s counsel, Pete Theodocion, could not speak about the specifics, he said, but expected his team would do its best to earn an acquittal. “It will be a much different trial than was the state case, and we are hoping for the best,” he wrote in a Thursday email.
All three have pleaded not guilty.
The prosecutor in the case, Linda Dunikoski, believed the video would be enough to prove murder and other state charges without getting into race or the men’s motivation, she told CNN.
Evidence in the federal case, experts say, isn’t so straightforward.
It’s like someone who cheats at cards, Moore said: Proving she or he cheats might speak to their propensities and demonstrate they have the character of a thief, but does it mean they robbed a particular bank on a certain day?
“They’ve got to go in and say, ‘We have this evidence of racial bias and race-related motivation, and that is one of the reasons that (Arbery) was killed,'” the former federal prosecutor said. “The question is: Does the fact that somebody may be a racist — can you say that is what led to this killing? And I think that’s a tougher burden on the government.”
Admissions made in withdrawn plea deal
In a Monday hearing, Travis McMichael hoped to have most of the federal charges against him dropped in exchange for pleading guilty to interference with rights. He was ready to accept a 30-year sentence, so long as it was served in federal prison.
In offering to plead guilty, the 36-year-old told US District Judge Lisa Godbey Wood he willfully injured, intimidated and interfered with Arbery because he was enjoying a public street and, as Wood put it, “acted because of Mr. Arbery’s race or color.”
“There are some very limited exceptions, but I don’t see them here,” he said, so federal prosecutors “will still bear the burden of proof on the racial motivation.”
In federal court Monday, FBI special agent Skylar Barnes outlined for Wood evidence of Travis McMichael’s racial animus, including associating African Americans with criminality, wishing crimes to be committed against African Americans and referring to Black people as monkeys, savages and N-words. Wood cut off Barnes before he could elaborate, noting some evidence remained under seal until a jury is seated.
Gough said it didn’t, and “Roddie Bryan doesn’t have a hateful bone in his body.” The lawyer wouldn’t use the N-word himself, he told CBS, “but I’m not Roddie Bryan.” The McMichaels’ original attorneys also denied their clients are racists.
The GBI declined to provide CNN its investigative file, citing the pending federal trial.
Admitting the evidence, his attorney said in the motion risks “rightfully” angering Black jurors and would preclude Bryan from getting a fair trial when prosecutors have no evidence Bryan has ever harmed or suggested harming a person of color.
Race needn’t be the sole motivator
“It’s harder if they’re connecting it to that particular (killing), but it’s not a big extrapolation. They’re saying this about individuals that fit Arbery’s profile,” Bell explained. “You just said you despise these people and then you attacked a person who’s jogging, who fits the profile. It’s not that big a leap.”
In that case, Todd Mitchell led a group of young Black men to attack a White teen, saying, “Do you all feel hyped up to move on some White people? … There goes a White boy; go get him.” They beat the White youngster, leaving him in a coma for four days. Found guilty at trial, Mitchell received extra prison time under Wisconsin’s hate crime statute.
Bell acknowledges the Wisconsin case is stronger than the federal case against the McMichaels and Bryan, but she still believes the link can be drawn.
Barring evidence of the defendants using a racial slur during the chase or killing, the text and social posts can provide context for the crime, Moore said, and that may be sufficient because “race doesn’t have to be the sole motivator in a hate crimes case.”
The McMichaels and Bryan actually may have unwittingly laid the foundation of their federal defense at state trial, he said. Their attorneys claimed they chased Arbery not because he was Black but because they thought he had committed a crime trespassing at an under-construction home. Bryan joined the pursuit already in progress, his lawyer said.
If defense lawyers take that tack, expect federal prosecutors to resurrect elements of the state trial, including testimony indicating: Gregory McMichael told police he didn’t know if Arbery had committed a crime; White people visited the under-construction home without being confronted by the McMichaels; and Travis McMichael said Arbery wasn’t armed and never threatened him.
State prosecutor avoided race as a strategy
The myriad racial elements of the case might raise the question of why state prosecutors did not introduce evidence of racial animus during last year’s trial.
Dunikoski, the prosecutor, withdrew the motion herself, she said. It was an agonizing decision, and she and her team wondered if they might kick themselves later, she said, but it turned out to be a solid strategy.
Dunikoski worried, too, about unnecessarily alienating a juror or stirring any implicit biases. Hypothetically, if she had claimed the Confederate flag on Travis McMichael’s truck showed he was racist and one of the jurors had, say, a nephew with a Confederate flag on his own truck, it might have ostracized that juror if she didn’t believe her nephew was racist, the prosecutor said.
Most importantly, Dunikoski didn’t need the racially charged texts and social posts, she said. Georgia law does not require prosecutors to prove premeditation or motive in malice or felony murder cases. As she saw it, the video told the story.
“When we started brainstorming about it, we started actually going, ‘Do we need to do this? Is it necessary? Is it going to move the needle toward a guilty verdict?'” she recalled. “What we always said to each other was: ‘Everybody could be green, and this is still a homicide. This is not self-defense.’ So, why they did what they did became less important than rebutting their affirmative defenses.”
The federal government as ‘a balancing force’
The federal trial, though, may serve a purpose far beyond these defendants. For one, the trial lets local and state governments know the feds are watching and they need to train law enforcement in hate crimes and enforcing the laws, Bell said. They can’t just ignore these types of transgressions.
Wood’s rejection of Travis McMichael’s plea deal also tells victims they matter and lets prosecutors know they’d do well to keep a wronged family’s sentiments in mind when cutting deals that behoove the accused, the professor said.
While Moore and Bell concur that Dunikoski’s team was right not to take on the risky burden of unnecessarily injecting race into the state murder case, race must play an outsized role for federal prosecutors, they said.
“There are pockets (of the United States) still where you have courts and prosecutors, law enforcement agencies where sometimes the decisions and cases that come out of there seem to reveal ongoing prejudices or home-cooked deals,” Moore said. “The Department of Justice is supposed to cure those things.”
CNN’s Angela Barajas contributed to this report.