Ahmed Arbery Shoplifting Video: Admissible in McMichaels Trial?
Generally speaking, no, unless the state attempts to introduce character evidence or otherwise puts Arbery’s history at issue in attempting to attack the anticipated self-defense claim.
Hey folks,
Today’s show looks at another Ahmaud Arbery video, released in the last 24 hours or so, of Arbery apparently getting arrested in a parking lot for purportedly attempting to shoplift a 65″ TV. You got that right, sixty-five inches. Go big or go home, I guess.
The video itself isn’t all that interesting from a use-of-force perspective, and the same can largely be said about the prior day’s video of Arbery having a confrontational encounter with a pair of law enforcement officers in a park. (Interestingly, he’s wearing the same down jacket with fur-lined hood in both videos.)
(LANGUAGE WARNING)
The videos have, however, induced several people to ask whether such videos can be at all relevant to the trial(s) of Greg and Travis McMichael, both charged with felony murder predicted on aggravated assault (or, in the case of Greg, aiding and abetting aggravated assault) in this case. After all, it’s not Ahmaud Arbery who will be on trial in those cases, it will be the McMichaels. As a general policy of criminal procedure, character evidence is usually inadmissible in a criminal trial, and these videos would certainly seem to fall into that character evidence bucket with respect to the McMichaels trial (e.g., they don’t touch directly on their confrontation with Arbery).
There are, however, some exceptions to the general policy of excluding character evidence, and at least three of these exceptions may prove a viable path for the defense to get evidence of Arbery’s character.
One of those exceptions is a function of whether the state introduces character evidence of its own.
A second has to do with character evidence that was known to the McMichaels at the time of their encounter with Arbery.
A third has to do with whether the prosecution attacks the McMichael’s (anticipated) claim of self-defense on the element of Innocence.
We touch on all that in considerable plain-English detail, share the shoplifting video itself with you, and a whole lot more in this roughly one hour plain-English exposition on the law, so enjoy the show!
REMEMBER:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict!
Stay safe!
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program
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Comments
Does the probative value outweigh the potential prejudice?
I don’t know. I’m here for the education so I can bust the trolls on social media.
That is, of course, the ultimate question, but that will be a subjective judgment call by the judge making the decision, so it’s impossible to predict. All I can do is sketch the outlines of the relevant legal arguments.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Mr. Branca,
When listening to the shooting video through headphones, I believe I can hear one of the McMichaels (Travis I assume) yelling, “Freeze!” at Arbery two times while he is approaching the truck.
Could the act of yelling, “Freeze!” be interpreted as a threat of violence, and could that in turn strip McMichael of a self defense claim?
The trial by media narrative is getting less likely as more surfaces about this guy. When this story first surfaced the media would have you think he was on the college cross country team. I think they are backing away now, America is done with feeling sorry for Obama’s sons.
What is missing is what the McMichaels know before the encounter and what transpired before the video.
Without that it is just one guess after another. As expected, Arbery is a thug. Not a surprise.
Looks like Crump is going to lose the media narrative on this one to make him look like he was out jogging.
A prediction, based on some public statements today: Brady, who was in the second truck and took the video, is negotiating with the new Prosecutor to turn State’s Evidence and throw the McMichael’s under the bus, in exchange for Brady being able to walk free with no charges. Having taken the video, Brady is the key witness in the case. If he testifies that they were after Arbery, the McMichael’s are finished.
Tom Servo,
ok, that the video recorder, who you refer to as getting ready to cut a deal to avoid prosecution? For him to say what? In exchange for not being charged with what?
If you have cool new information please put out in detail.
I got his name wrong in that post, it is William Roddy Bryan.
He was booked for Felony Murder this afternoon.
I’ll bet his attorney’s are REALLY trying to cut a deal now.
ARE they going to claim self-defense?
Everything that I’ve seen says that they are planning to go with accidental discharge when he grabbed the shotgun.
Correct me if I’m wrong, but claiming self-defense requires you to say that you intended to use deadly force, and that claiming self-defense after saying it was an accident is a big no-no and got the guy from Detroit convicted when he shot the crazy druggie on his porch?
Newtonian Defense. Newton’s Third Law paraphrased: Pull on the business end of a shotgun when someone else’s finger is in the trigger guard, gun go BOOM!
Maybe McMichael said hey dude, pull my finger and Arbrey grabbed the barrel instead.
Fundamental gun safety is to keep one’s finger outside the trigger guard until one intends to shoot.
I would say it turned out to be a fatal accident for Arbury to grab the guy’s gun,
Fatal accident or an attempt to win a Darwin award? I say the latter.
Yea, that was a sad story. Women needed help and he blow her away at the door. Guy must have been living in fear.
He lived in Detroit…of course, he lived in fear.
You’re right. If they claim self defense then they shoot that down when they claim accidental discharge. And I don’t see how they claim self defense by their prior actions which put them as the wrong doers by their assault of Arbery but coming after him armed.
Arbery was actually defending himself in that situation. (going only by what I saw on the video)
They’ll get voluntary manslaughter if they’re lucky.
Code for Georgia: Voluntary manslaughter
https://law.justia.com/codes/georgia/2010/title-16/chapter-5/article-1/16-5-2/
Might be closer to Involuntary manslaughter:
https://law.justia.com/codes/georgia/2010/title-16/chapter-5/article-1/16-5-3
Bottomline, I think Crump & company will get a pay out from it and the good old boys are going to be dragged through the mud.
Who do you think will be sued for the $$$ payoff. Suing the McMichaels personally won’t yield much and suing the Police Dept. seems a stretch.
They were charged with aggravated assault and felon murder. Therefor, manslaughter, of whatever type, is off the table. It is not a lesser included charge to felony murder. To get manslaughter or any higher homicide charge, the prosecution would have to add-charge the McMichaels with a higher level homicide charge. This is not likely to happen as the current charges are pretty weak.
I wouldn’t say Felony Murder is weak; it can carry up to a life sentence in Georgia. Although my guess would be, if convicted on it, the McMichaels will both be looking at a sentence of about 15 – 20 years.
Involuntary manslaughter is a lesser included offense of aggravated assault under Georgia law.
No, I’m not sure why, either, have to dig into that.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense
This video camera is racist!
If the same people are involved in this one as were involved in travon Martin thing then it’s a scam sure as hell
Crump and Parks…yep.
These guys chase racially charged narratives to get easy settlement wins. They also go after personal injury and malpractice. In other words, they are ambulance chasers.
Whether or not Arbery stole something on some other occasion isn’t relevant to whether the shooting was justified. Can we all agree that neither the McMichaels nor anyone else have the right simply to go out and kill someone because they knew or suspected he was a thief? That being so, the only reason the shooting was conceivably justified is on the basis of self-defense, and pointing out prior occasions in which Arbery was accused of stealing something doesn’t go to that issue at all. Seems like this posting of videos intended to make Arbery look like thug is just an attempt at poisoning the well. It’s inviting people to regard the shooting as a positive good in that it removed a bad person from society. But, again, the law doesn’t confer license on private citizens or even the police simply to go out and kill “bad” people. And you’d be insane wanting to live in such a society.
Just as a mental exercise, picture Arbery and one of his friends in the truck with the guns, and one of the McMichaels as the guy running down the street. If the events happened exactly the same way, but with the people in those reversed roles, would you still see it as a justified killing?
As a mental exercise, I suggest you read the post where the answer to your inquiry is covered fully.
It has everything to do with fighting the media narrative that he was an innocent little jogger boy. He’s St. Trayvon a few years later, if he grown beyond the skittles and purple drank.
The two cases are very different in that Trayvon jumped GZ and was trying to beat the shit out of him. It was a clear case of self-defense. GZ had not provoked an attack. Arbery night have been just as much a thug as Trayvon in his life prior to the shooting, but the video shows him as being accosted by two guys with guns, and it looks like he was trying to get away before trying to go for the one guy’s shotgun, which it would have been only natural for him (or you, or anyone) to see as lethal threat in the hands of two guys in a truck who are not policemen. He’s not the aggressor in this situation. And it wasn’t his actions that primarily caused this incident to occur. It was the decision of two wannabe cowboys to get out their guns, chase down, and try to apprehend someone they SUSPECTED but never witnessed committing a property crime (not an assault, rape, murder, etc.).
I know you think that Arbery should be publicly reviled because he was at some point accused (not convicted) of theft, but what about the McMichaels? Do you have anything remotely critical to say about their actions? Keep in mind that their actions make it HARDER to defend our right to bear arms. Their actions make it HARDER to defend our right to personal self-defense. What the hell were they thinking?
Sorry, but you are incorrect, again.
You continue to make assumptions which have no basis in fact.
The first unsupported assumption that you make is that McMichaels intentionally shot Arbery. At this point, we do not know if this is true or not. It is equally likely that Arbey caused the weapon to discharge when he was pulling on the barrel of the shotgun.
The second assumption that you make is that Arbery acted in lawful self defense when he attacked McMichaels. We do k now, from the video produced so far, that Arbey committed at least two criminal acts. Battery fir the initial attack on McMichaels, and attempted strong-arm robbery for attempting to remove the shotgun from his control by force. Now, these actions are only legal if they were committed in lawful self defense. Given the observed actions of Arbery and the McMichaels, there s no clear evidence that Arbery was acting in lawful self defense.
The third assumption that you make is that the McMichaels were committing an illegal act in trying to get Arbery to stop. again, there is no evidence that this is so. From the evidence, which we do have, the actions of the McMichaels in following Arbery and getting out of the truck to talk to him are n ot illegal. Possessing a firearm is not illegal. We see no clear evidence that any overt threat was made by the McMichaels. Without an overt threat, there is no aggravated assault. Without a valid aggravated assault, there is no felony murder.
The next assumption that you make is that Arbery was attempting to “get away” from the McMichaels, because he viewed them as a threat. However, when they passed him thee first time ssnd stopped in the street to catch up, he turned around and ran back the way he had come on the roadway. The McMichaels passed him again and stopped in front of him. He made no attempt to put ny distance between himself and them, ut instead chose to close with the truck and attack Travis McMichaels. He could have again reversed course or turned and ran off across country to avoid them. Yet he did not do this. So, assuming that he was attempting to “get away” from them is a pretty big stretch.
Given 20-20 hindsight, the tactic employed by both sides were flawed. TRhe McMichaels should simply have established contact with the local LEA and kept them appraised of Arbery’s location. This would have avoided a confrontation. Arbery, if he felt threatened, had ample opportunity to break contact with the McMichaels BEFORE he got to their truck. Instead he decided to close on two men, one armed with a shotgun, and then physically attack the man with the shotgun. So, all parties share responsibility for the end result. However, as a society, we have to operate under the law, not our person feeling of how the world should be. And, in this case, it is not clear that the McMichaels acted illegally or that Arbery was legally justified to take the actions that he did.
I’m not making any of the “assumptions” you’re trying to attribute to me. As for whether the gun was fired (multiple times) on purpose or accidently, if the McMichaels haven’t already taken a position on this, then whey haven’t they? Are they waiting to see which defense gives them the best chance of acquittal? Why should we believe anything they say on this point, if they have not already made clear one way or the other why the gun went off?
As for the rest of you argument, it appears to me that you’re bending over backwards to portray the McMichaels as victims of an assault by Arbery when it’s perfectly clear from everything we know that it was the McMichaels who confronted HIM with weapons drawn in some kind of idiotic and likely unlawful attempt to arrest him for a property crime that they did not see him commit and had no real evidence he was involved in. The McMichaels were the ones who breached the peace and provoked the confrontation, and they had to know, going into the situation, that their targeted “suspect” might react in a way that would lead to someone getting shot. Somebody please explain to me what in God’s name these people were thinking! Do you really think this is responsible conduct?
He foolishly tried to take the shotgun from the guy pointing it at his belly. It went off. That’s normalky what hapoens when you do something that stupid. That’s why he’s dead. It’s the only reason. He made a bad mistake and got killed.
The problem the McMichael’s face is this: first, I assume *everything* you say in your description is true. The State is now adding charges of Criminal Attempt to commit False Imprisonment, a felony. This is based on the fact that THEY followed Arbery, and attempted to detain him BEFORE the confrontation. If the State can prove that, then that means that they were involved in the commission of a felony WHEN the confrontation broke out.
Felony Murder is a charge that says, simply put, if You are involved in the commission of a felony, and ANYONE dies for ANY REASON from the chain of events you started, then you are guilty of Felony Murder. No intent to kill required. This is a very harsh law, and not many people understand it, especially people from states that have abolished this law because it was seen as too harsh.
To repeat; if the State can prove Attempt to commit False Imprisonment from that video and other evidence, then this is automatically Felony Murder, and the McMichaels are headed to State Prison for a long, long time.
“He foolishly tried to take the shotgun from the guy pointing it at his belly. It went off. That’s normalky what hapoens when you do something that stupid. That’s why he’s dead. It’s the only reason. He made a bad mistake and got killed.”
If you are trying to rob a store and the shopkeeper tries to grab your gun and gets killed you can call the shopkeeper stupid all you want and you may be right. But under the law you are still a murderer.
The McMichaels can’t claim self-defense if they were engaged in some seriously illegal behavior at the time.
What those videos also show is Mr. Arbery reacting to confrontation with irrational aggression.
Armed people confront burglars and trespassers all the time. Normally that causes the suspect to either flee or sit down and wait for the police to sort things out. I have confronted poachers on my land the same way.
Of course, the rednecks in this case were not on their own property. But still, I am not sure that they could reasonably have anticipated that Mr. Arbery would rush them, punch them, then try to gain control of the shotgun.
Also, the distance by road between Arbery’s home and the home under construction pretty much precludes him casually jogging there. Not just the distance, but the pedestrian-unfriendly bridge and highway he would need to travel on.
There is a narrative being repeated, and some of the elements of the narrative can be proven false.
“… Also, the distance by road between Arbery’s home …”
He reportedly was living in his mother’s house in the Fancy Bluff neighborhood. Satilla Drive turns in Fancy Bluff Road when it crosses US 17 and there are lots of houses on or near Fancy Bluff Road within 2 miles or so of the house under construction.
Looks like a defiant littleBastard. Clearly a thief. What’s the problem? Besides the fact that he could be omama’s son? Thieves get shot. Thieves who try to take a shotgun pointed at their belly away from the owner generally die of their wounds. Again, what’s the problem?
I’m no expert but I read Andrew Branca’s book. I recommend it for anyone not just for those that have or carry firearms. And those I tell you HAVE to read this book.
I did and it changed my whole attitude about firearms and carrying concealed and what happens if you have to defend yourself.
Apparently Mr. McMichaels failed to attend a course like that and we see where he wound up.
I would guess that McMichael had prior knowledge of Mr. Arbery’s criminal past and that he was likely to be carrying which is why he thought to grab a pair of shot guns. Bad Move. Should’ve let the cops handle it. Of course that’s 20/20 hindsight. And that’s the one thing I learned from Andy’s book. How easy it is for things to go wrong.
They thought Arbery would stop and not jump out and attack the son while armed. Arbery a guy from the street he spooted him as a weak spot and unexperienced thus slow to shoot. But he was big enough to hang on to the shotgun and Arbery got his.
My guess is they both get voluntary manslaughter if they’re lucky and the judge/jury is fair and they have a good attorney.
Whoopsie! I missed
I agree wholeheartedly with the first two paragraphs
I disagree with part of the rest; apparently the father was a police officer at one time and knew of Arbery. They had every right to follow him and from what I see did *not* try to detain him
They were waiting for the police to show up when Arbery attacked
They’ll get off and another town will burn
“Should’ve let the cops handle it. ”
McMichael used to BE a cop. Forgot he wasn’t still a cop.
“I would guess that McMichael had prior knowledge of Mr. Arbery’s criminal past …”
I doubt Gregory McMichael recognized Arbery. If he did he doesn’t seem to have told anybody at the time.
I agree wholeheartedly with the first two paragraphs
I disagree with part of the rest; apparently the father was a police officer at one time and knew of Arbery. They had every right to follow him and from what I see did *not* try to detain him
They were waiting for the police to show up when Arbery attacked
They’ll get off and another town will burn
Nah, virus will keep them in their houses.
Actually, the fact that the father knew him and had a grudge against him implies personal animus, and makes conviction of the McMichael’s far more likely.
“had a grudge against him”
There’s literally zero evidence of this. You’re just making stuff up, now.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
looks like a straightforward case of ” fatal entitlement ”
will be difficult for prosecution to overcome the fact that arbery is clearly the aggressor
without proper training, attempting to disarm an individual who is holding a shotgun is a rather high-risk proposition
you might be a real badass in the hood but you aint bullet proof, ‘yo
He will join Trayvon Martin in the promised land of obamaramadom.
On the question of whether the shoplifting video should be admissible. 12 years ago I would have said ABSOLUTELY NOT. But then we got a good dose of “The police acted stupidly,” “If I had a son” and all the rest of it. obama waged a racial and cultural war on our country, dividing us to the point my answer has changed to: “It depends on what the prosecutors have planned.” If they’re going to nifong the McMichaels or paint arbery as the Saint of Satilla Shores, I say the McMichaels should be entitled to mount a defense painting arbery as the criminal he was, including the shoplifting video.
Well, there are two trails being argued here. One is in the court of law, where the rules should be followrd, and the second is in the court of public opinion. Should this be in the legal trial? I’d still argue no, but here we are also engaged in the court of public opinion.
Does this belong in the court of public opinion? At this stage, absolutely. The prosecution has already publicly lied about Ahmed Archery and his history, so the record must be set straight.
From the video and remarks I have read about Arbery, he was definitely an angry troubled young man. The TV video about the shoplifting a 65-inch TV shows that he had a really bad attitude toward authority. Then in the sitting alone in his car video, he explodes over a cop simply asking him what he was doing. He could have had car trouble, he could have been ill, he could have been selling drugs or a whole bunch of other things that are legitimate questions to ask. It appears that his first move in every situation is to attack either verbally or physically. The physical part was his last. He should have stuck with name-calling and insults.
About 5 yrs ago, we were installing some new security cameras in a Walmart…this particular store had a BIG problem with shoplifters…
One day I was hanging a cam above the cash registers when I heard this commotion, looked down and saw a guy running out the door carrying a 42″ flat screen TV ! (he got away…!)
Thieves can be pretty Damn bold…! 🙂
Would the assertion that Arbery was just out for a jog open ( for example in opening arguments ) the door to the testimony?
There’s no reason for any explanation of Arbery’s actions to be entered as evidence; they are immaterial to the case.
the State is claiming that the McMichael’s attempted to illegally detain Arbery when they chased him in the truck and stopped in front of him, and then exited while brandishing a firearm. That is a felony, attempted False Imprisonment. If this is proved, then that case automatically proves Felony Murder. No intent required for that one, just the commission of a felony and a dead body.
Mr. Branca has a great blog himself.. I keep going back to see the different topics..
He left all of his Ahmaud posts outside the paywall,,, and I am grateful for that.
https://lawofselfdefense.com/ahmaud-arbery-files/
I’m sorry, we do not know what public position the McMichaels will take on just about everything involved in this case, because they have made no public statements about it. They might well have made statements to the police investigators. But, none of those statements should have been leaked to the press prior to the case being closed. This is in keeping with allowing the state to investigate the incident without hindrance. And, that was exactly my point. We do not KNOW whether McMichaels intentionally fired the shotgun or if Arbery caused it to fire while he was attempting to pull it from McMichaels’ grasp. And, that little point does make a difference.
As to portraying Travis McMichael as being the victim of an assault by Arbry, that is cleaer from the video. Look, whenever one person physically attacks another, that is a criminal offense. There are certain defenses to a criminal charge of assault or battery, one of which is self defense. Also, attempting to relieve a person of his property, by force, is the crime of robbery. Again, in certain cases, doing this in self defense is a defense to a charge of robbery. The video clearly shows Arbery attempting to forcibly remove the shotgun from Travis McMichaels’ possession. And, McMichael would have a right to defend himself from physical attack and to retain his property, unless it can be proven that Arbery acted in lawful self defense. Now, this is the dilemma faced by the prosecution. They have a high profile case, which a single juror who could sink the successful prosecution of the McMichaels if that juror believes that no aggrvate4d assault took pace and Arbery’s attack was not legally justified self defense. Prosecutors do not like to lose cases.
You keep throwing around terms like breach of the peace. Which Georgis statute are you addressing here? After all, the McMichaels were not charged with breach of the peace. Then you make thee assumption that the McMichaels MUST HAVE known that their actions would have resulted in someone getting shot? That does not follow at all. If it did, then Arbery should have known the same thing when attacked Travis McMichael. Is this then Arbery to blame for the incident? Was this responsible conduct? Probably not, on both sides. The question is were any of these actions a violation of criminal law and, if so, who violated which laws?
Now, we also have a system of justice in this country which debates the question of damages and who is responsible for those damages. Where criminal laws usually require that a single person bear total responsibility for the violation of a law, the civil process can assign a percentage of the responsibility for damages, resulting from the actions of more than one person, among all involved. And, this is where this case should probably be. The standard of proof is considerably lower in a civil action than in a criminal case.
Now, get ready for a big disappointment in the criminal case. There is a very, very good chance that, should this case go to a jury trial, the McMichaels will be acquitted. All it takes is a single juror to accomplish that. And, as I have pointed out, a strong case can be made that the McMichaels actions, while possibly being ill-advised, were not a violation of law. I realize that this will be hard for you to deal with this, if it happens, as you have already decided the guilt ans innocence of the parties involved.
Mac, I agree with everything you posted, with one technical exception, which I believe you meant something else: it only takes one juror for a hung jury, but it take all twelve for an acquittal.
And if the jury hangs the prosecution can retry the case as in the Michael Dunn loud music case where the jury hung on the top charge in the first trial. He was retried and convicted in the second trial.
Help me out here:
The guy following the McMichaels filming the incident , William Roddy Bryan, was recently charged with Felony Murder (and other charges, predicated on Felony Assault). If Bryan did not have a weapon, and was violation not statute by driving down the street several hundred feet behind Travis McMichael, how can it be proven that Bryan put Arbery in fear on immediate bodily harm? My cynical guess: pressure on Bryan to testify against the McMichaels to fill in the blanks necessary to prove all the elements of the criminal offense of Felony Assault.
In the same vein, unless Greg McMichael brandished his weapon (pistol, not a shotgun), how can he be charged with Felony Assault? I can’t tell if Gregory fires his weapon in the video, but if he did, it was well after the altercation between Arbery and Travis McM. Note: I see no conspiracy charge in the McMichael’s charges or Mr. Bryan’s.
Sorry for typos.
Press conference today in GA 5/22/2020 at 9:00 am. Regarding arrest of Bryan.
Bryan charged with “Felony False Imprisonment”. So I submerged it’s the predicate for Felony Murder.
Weak sauce.
“On Tuesday, Bryan took a lie detector test, his attorney Attorney Kevin Gough said.
He said the test is not considered admissible in court but does show Bryan was unarmed at the time of the shooting, did not have any conversation with accused killers Greg or Travis McMichael prior to the shooting that day and was not privy to any plan to take a life.”
So now racial slurs are ok. On legal insurrection. Great.