Defense in Ahmaud Arbery trial is asking for a lot

Glynn County Detention Center via AP

Before the trial of Travis and Greg McMichael, as well as Roddie Bryan can get underway in the death of Ahmaud Arbery, Superior Court Judge Timothy Walmsley has to rule on roughly a dozen pre-trial motions filed by both the prosecution and the defense. That is scheduled to take place today and tomorrow. Two of the motions are of particular interest because they could determine what sort of tone the testimony takes and how the jury might react to certain information. Looking over the list of requests that the judge will be considering, it seems that the defense may have a tough road ahead of them in the fall since jury selection isn’t scheduled to begin until October 18. (Associated Press)

Attorneys for a white father and son charged with chasing and killing Ahmaud Arbery are asking a judge to allow evidence of the slain Black man’s past problems to be presented when their clients stand trial for murder.

Prosecutors are fighting to keep Arbery’s criminal record and other prior problems out of the trial, while seeking the judge’s permission to introduce unflattering evidence about the defendants — namely text messages that contain racist slurs and social media posts with racist themes.

Superior Court Judge Timothy Walmsley has scheduled hearings on legal motions Wednesday and Thursday at a courthouse in Brunswick, 70 miles (110 kilometers) south of Savannah.

It’s interesting that the AP chose to describe the information requested by the defense as Ahmaud Arbery’s “past problems.” What they’re really asking for is to have his criminal record brought up in front of the jury. And it’s true that Arbery had some run-ins with the law in the past. We already learned of one incident of shoplifting a television and another arrest for bringing a gun onto his former high school campus. (He was still on probation at the time of his death.)

I don’t see how the judge grants this request for a couple of reasons. First of all, it’s not Arbery who is on trial here. In most criminal trials, it’s actually unusual for a judge to allow the criminal record of the defendant(s) to be brought up unless the past conviction speaks to a history of the accused being dishonest when giving testimony. Similarly, the criminal record of any witnesses giving testimony are generally not allowed to be brought up. So the record of the victim really should be off the table.

Besides, even if the defense wanted to point out that Arbery had a record, that wouldn’t have mattered on the day of the shooting because all three of the men have said they’d never heard of Arbery before that day. So they wouldn’t have known about his record and thus they wouldn’t have had any further reason to suspect he was up to no good. Even if Arbery had been carrying some stolen merchandise with him as he was running (he wasn’t) I don’t believe that would outweigh the fact that the men should have been calling the police to handle the situation rather than chasing him down themselves.

The key request from the prosecutors is another matter, however. They’re looking to have text messages and social media posts from the men allegedly containing racial slurs brought up as evidence. Part of the prosecution’s case hinges on showing that the McMichaels chased down Arbery at least in part because he was Black. The hate crime charges that are also potentially pending against the men will likely rely on those records as well. It does seem like there’s a fair chance the judge will allow that request. But the defense is going to have to figure out how to handle the prosecution’s claim that Roddie Bryan told them that Travis McMichael had uttered a racial slur at Arbery while he was bleeding out on the road. Travis denies this, so we’ll have to wait to find out whether Roddie throws him under the bus.

Of course, as I’ve said here in the past, even if every one of these motions goes against the defense and in favor of the prosecution, we still have no way of knowing how this story will end. They still have to find a jury willing to convict any of the men while the video of the shooting doesn’t actually show the final moments before the shots were fired. It’s still their word against that of someone who isn’t around to tell his side of the story.