Most Read
Image 01 Image 02 Image 03

Arbery Case: State Closing Rebuttal Presents as Frantic, Pleading & Desperate

Arbery Case: State Closing Rebuttal Presents as Frantic, Pleading & Desperate

ADA Linda Dunikoski repeatedly & intentionally misstates law to jurors, a sign of weakness

Today the jury heard the last of argument and received their jury instructions in the Arbery case trial, in which defendants Greg McMichael, Travis McMichael, and Roddy Bryan are each facing a count of malice murder, four counts of felony murder, and then the four predicate felony counts (two for aggravated assault and two for false imprisonment).

In the interests of keeping our coverage somewhat orderly, I’m going to address each of the day’s major events—the closing rebuttal of ADA Linda Dunikoski and the reading of the instructions to the jury by Judge Timothy Walmsley—separately.  Here I’ll cover Dunikoski’s rebuttal.

In a nutshell, ADA Dunikoski’s closing rebuttal struck me as an hour of frantic, pleading, and desperate.  It reeked of fear of losing this case.  And I expect it was that fear that led Dunikoski to so frequently misstate the law to the jury, giving rise to a plethora of objections from the defense—a defense that no longer has any opportunity to argue its own case to the jury.

The most serious misstatement of law occurred within the first two minutes of the start of Dunikoski’s rebuttal, and in a manner that can only be described as shocking in the context of criminal law.

I’ll share her exact language with you, but in effect, Dunikoski told the jury that they are free to convict the defendants of these criminal charges even if they find the crimes merely proven by a preponderance of the evidence, rather than requiring that the crimes be proven beyond a reasonable doubt.

Specifically, Dunikoski was talking to the jury about the concept of beyond a reasonable doubt, clearly attempting to minimize the threshold of that burden in the minds of the jury, stating:

“It’s just beyond a reasonable doubt.  In other words, do you think they committed the crime?  If you go, OK, yeah, I think they committed the crimes, you’re good.  That’s all you need.”

As you might expect, this led to a fair-sized eruption on the part of the defense teams.

What Dunikoski was describing in plain English to the jury was not the concept of beyond a reasonable doubt, but rather the threshold of a mere preponderance (majority) of the evidence.

Preponderance of the evidence is the standard applied in civil court—is it more likely than not that someone has been proven liable for some harm. It is utterly different and enormously lower legal standard than beyond a reasonable doubt—guilt had been proven to such a degree that it has removed any reasonable doubt on the question.

American law requires proof beyond a reasonable doubt before the government is privileged to strip a citizen of his liberty and put them in a cage—before they can be deemed guilty of any criminal act at all.

This means that a jury that concludes it is more likely than not that the defendant committed the crime charged has not met the threshold for conviction.  A jury that concludes that a large majority of evidence, say 75%, supports a verdict of guilty has still not met the threshold for conviction.  The jury may not convict until they believe guilt has been proven beyond any reasonable doubt.

And that burden is squarely on the State. The defense need prove nothing.

A prosecutor telling a jury, particularly in a murder trial, that they can return a guilty verdict if they merely think it more likely than not is an act of violence on the US Constitution and the due process rights of the defendant, of every defendant, of all of us.

ADA Dunikoski’s suggestion that the jury could convict if they merely “think they committed the crimes, you’re good.  That’s all you need” is no less offensive than was ADA Binger’s referencing in front of the jury Kyle Rittenhouse’s assertion of his 5th Amendment right to silence.

And it was no less forgivable.  Like Binger, Dunikoski is a very experienced prosecutor.  She knows damned well what proof beyond a reasonable doubt is, and she knows damn well that it’s not merely “if you think they committed the crime, you’re good.”

This conduct was not a mistake—it was a deliberate attempt to convince the jurors to convict on a lower threshold than what the US Constitution demands—and she knew so when she did it.

That was the first and most powerful, but not the only, signal to me in her rebuttal that she lacks faith in her ability to achieve convictions in this trial.

A prosecutor who believes she has a viable narrative of guilt beyond a reasonable doubt does not—in front of not just the jury, but also the judge and defense counsel—attempt to argue guilt should be found based on the lower legal standard used in civil, not criminal, court.

And all this happened within the first two minutes of her closing rebuttal.

Throughout her rebuttal, Dunikoski was talking with the speed of someone trying to convince themselves that what they were saying was reasonable and true—and, of course, it came out quite the opposite.

At one point in my live comments I wrote:

Oh my God, Dunikoski is talking so fast fast fast fast fast. It reeks of desperation. Or obfuscation.

Later:

One wonders how this Benzedrine-fueled rant from a Cobb County prosecutor is coming across to a Glynn County jury.

Dunikoski also made the “harmless, unarmed victim” argument with respect to Arbery that ADA Binger had made with respect to Joseph Rosenbaum in the Rittenhouse trial—he was unarmed, he had no weapons, can’t have been a deadly force threat.

Just as with Rosenbaum, however, Arbery was not unarmed.  Arbery was armed with fists, and he was seeking to arm himself with a shotgun—Travis McMichael’s shotgun.  Just as Joseph Rosenbaum had been doing with respect to Kyle Rittenhouse’s rifle.

The very same grotesque and fatal injuries that Arbery ended up suffering while fighting for control of that shotgun are what Travis had every reason to believe would be inflicted on himself and his father if Arbery seized control of that weapon.   That’s an imminent deadly force threat every day of the week and twice on Sunday.

Dunikoski also engaged in a great deal of “table pounding.”  For those who may not know, there’s an adage in the law that when the facts are on your side you pound the facts, and when the law is on your side you pound the law, and when neither is on your side, you pound the table.

In her closing rebuttal, Dunikoski repetitively emphasized facts that while true were also irrelevant—and she did it over and over and over again.

One she was particularly fond of repeating was that when the McMichaels first spoke with police at the scene, they never used the magic words “citizen’s arrest”—as if this failure meant they could not have been engaging in a lawful citizen’s arrest.  First, one needn’t use any magic words. Second, they specifically used the word arrest, and accurately described their intent and conduct which was the conduct of arrest.

But, we heard over and over again, they never said the magic words “citizen’s arrest”!

That’s simply not a substantive argument.  And when lawyers are making non-substantive arguments, that tells me that they don’t have a substantive argument to make.

Another series of objections exploded from the defense when Dunikoski put up a poster board entitled “Law of Citizen’s Arrest,” and told the jury that a citizen’s arrest could not be lawful unless the offense had been committed in the presence of the person making the arrest.

Dunikoski explicitly told the jury:  “Did Ahmaud commit an offense in their presence? No? Then citizen’s arrest is gone.”

The defense objected, of course, noting that this statement was not consistent with the jury instructions the judge had agreed to use in this case.  Dunikoski then tried to obfuscate her way out of this obvious conflict by claiming that she was simply arguing her view of the citizen’s arrest law, and how it should apply to the facts of this case, and that this was permitted in closing.  And Judge Walmsley mostly fell for it.

And that is permitted in closing—but not if you are outright misstating the law!

The objections got fierce enough at this point that the judge was obliged to excuse the jury from the courtroom so the parties could argue it out.

I won’t do a deep dive on the citizen’s arrest matter here, because I’m going to discuss it in my content immediately following this one where I cover the instruction of the jury—except to note that really the entire trial hinges on this question of citizen’s arrest.

If the citizen’s arrest was lawful, everything else was lawful.  If the citizen’s arrest was in fact felony unlawful imprisonment, then all the other felonies are essentially proven, as well.

And ADA Dunikoski is well aware that if she loses on citizen’s arrest, she loses this trial—at least on the legal merits.

So to the extent the jury is misinformed on this key issue of citizen’s arrest, that misdirection corrupts any guilty verdict that may result from this trial.

Further, Judge Walmsley should have definitively settled any ambiguity between the parties as to how this citizen’s arrest law is to be interpreted and applied, long before we got to closing arguments and jury charging.

A jury’s job is to resolve ambiguity in the facts of the case—it is not the jury’s job to resolve ambiguity in the law.

It is the judge’s job to resolve ambiguity in the law.

And wherever ambiguity is found in the law, the rule of lenity requires that this ambiguity be resolved in favor to the defendant, and not to the State.

None of that resolving of ambiguity happened here, as we found out for sure when Judge Walmsley finally instructed the jury on citizen’s arrest, and he ought to be ashamed of himself for that professional failure, especially in a trial with these stakes—but more on that when I cover the jury instructions specifically.

There was plenty of other “pounding on the table” misdirection by Dunikoski.

For example, Dunikoski argued that Arbery was not found to be in possession of stolen property, so where’s the felony burglary by Arbery that’s the predicate for the citizen’s arrest?  Except that Georgia felony burglary doesn’t require an actual taking of property.

The home believed to be burglarized, Dunikoski repeatedly informed the jury, was merely an “unsecured construction site,” so again where’s the felony burglary by Arbery?  Except that a home under construction is more than sufficient to be the predicate for a felony burglary under Georgia law—it need not be completely constructed first, it need not be “secured,” it need not be fenced in, it need not display a “No Trespassing” sign.

Dunikoski pointed out that the McMichaels themselves said they weren’t certain that Arbery had committed a crime. Except certainty is not required for a citizen’s arrest, merely probable cause.  What Arbery was actually doing sneaking around that home in the middle of the night on multiple occasions is not relevant—what is relevant is whether such conduct could be reasonably perceived as felony burglary.

Dunikoski pointed out that we have all this video of Arbery wandering around the home in the dark of night, but no video that he ever actually walked off with a piece of property, so how can he have been committing burglary even on prior occasions?  Again, what he was actually doing is irrelevant, what matters is how his conduct and intent could be perceived—it’s reasonable to infer an intent to burglarize a property when you sneak into it in the dark of night, especially after having been previously chased off.

The actual owner of the home didn’t care, really, if Arbery was on the property, simply asking police to tell whoever it was to please go away—so no harm, no foul?  Except, again, what matters is not how the homeowner might have felt about things, but whether the McMichaels could have reasonably perceived an apparent felony burglary.

There was also some outright misrepresentation of the evidence to the jury, which was odd because it was followed by Dunikoski then playing actual video that contradicted her own presentation of the evidence.

For example, Dunikoski argued to the jury that at the very worst Arbery had committed a trespass, a mere misdemeanor, what’s the big deal? In fact, Dunikoski said, an officer responding to one of the prior unlawful entries had later been on body camera recorded chatting with Greg McMichaels as characterizing the entry as “criminal trespass, at the most.

When that actual video was played, however, what the officer says is that the suspect was guilty of criminal trespass, at the least.”

Maybe Dunikoski so desperately wanted the words to be “at the most” that she actually heard her wish rather than the actual “at the least”? People are odd.

Dunikoski at one point made the odd argument that Travis McMichael wasn’t giving orders to Arbery in the same manner as a law enforcement officer, because Travis was yelling, and law enforcement officers give their commands in a soft and polite tone of voice.

To that I can only say that I suppose experiences differ. I’ve heard my share of screamed police commands

Dunikoski also argued that Travis failed to adhere to his own use-of-force continuum training because he jumped right from Level 2, verbal commands, straight to deadly force, skipping his own steps 3, 4, 5.  It should go without saying that the defender in a use-of-force encounter is privileged to jump directly to whatever defensive force is proportional to the threat—there is no requirement that one must first exhaust every lesser means of defense if one is facing an imminent deadly force threat.

We never heard in court the claimed “stupid N-word” phrase purportedly uttered by one of the McMichaels over Arbery’s body, as I’ve previously discussed, but Dunikoski was able to get a few race whistles in, anyway.

At one point during the pursuit of Arbery by the McMichaels, Greg McMichaels managed to get on the line with 911 and frantically began to report their circumstances, starting with, “There’s a black man running down the street,” or words to that effect.

Dunikoski made sure the jury heard that portion of the call repeatedly, to suggest that the only reason the McMichaels had for pursuing Arbery was that he was simply a black man running down their street.

Some more table-pounding was Dunikoski claiming that Arbery could not possibly have had a gun on him—perhaps the pistol stolen sometime earlier from Travis McMichaels’ car?—because his pants were too baggy.  I’m no expert on baggy pants, but it’s not required that Arbery brought his own gun to the fight—he was in the process of arming himself with Travis’ shotgun when he was shot and killed.

And, of course, Dunikoski concluded by urging the jury to find the defendants, all three, guilty of all the charges.

In summary, it was a rather disheveled, frantic, desperate-sounding closing rebuttal, much as her initial closing had been, not the sort of argument that would be attractive or compelling to any juror not already convinced of guilt, and suggested to me that Dunikoski has a genuine fear that she may lose this case.

And it all hinges on the interpretation and application of a citizen’s arrest statute that neither party can agree on, and that the judge himself ultimately failed to clarify—but that’s in the next content.

Here’s the video of ADA Linda Dunikoski’s closing rebuttal, for your viewing pleasure (or not):

OK, folks, that’s all I have for you on this topic.

Until next time:

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

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments


 
 0 
 
 6
Ben Kent | November 23, 2021 at 4:28 pm

PROSECUTORIAL MISCONDUCT

What is it with prosecutors that are so hell-bent on fulfilling a certain narrative vs. seeking justice ? Binger in Kenosha and now Dunikoski in Georgia? Is it that the courts so rarely hold them accountable that they feel free to lie and cheat to achieve conviction? It should scare every American.


     
     0 
     
     0
    n.n in reply to Ben Kent. | November 23, 2021 at 4:43 pm

    Justice is served at the pleasure of social justice and secular incentives.


     
     0 
     
     3
    AnAdultInDiapers in reply to Ben Kent. | November 23, 2021 at 6:47 pm

    Add in the nonsense at the Chauvin trial and it’s very clear that the concept of justice is dead in the US.

    First you have the excessive stacking of charges, then you have the threats and demands to plead guilty, then if you do go to trial the prosecution appear to have free rein to lie and ignore the law in their attempts to frame you.

    As someone watching from outside the US I can’t see how you can even pretend to have a justice system.


     
     0 
     
     1
    The Friendly Grizzly in reply to Ben Kent. | November 24, 2021 at 7:15 am

    They are not looking for justice. They’re looking for another scalp to hang on their belt.


     
     0 
     
     0
    Bisley in reply to Ben Kent. | November 24, 2021 at 1:35 pm

    The real problem is judges who fail to crack down on prosecutors who intentionally misrepresent the law and the facts, introduce evidence that they know very well isn’t allowed, etc. If they understood that they’d be severely punished every time they try to pull these tricks, they wouldn’t do it.


 
 0 
 
 4
Ben Kent | November 23, 2021 at 4:52 pm

CITIZENS ARREST NOT THE KEY TO THIS CASE

I do not see citizens arrest at the key factor. Because when I watch the video – I see Aubrey run from the defendant. The defendants NEVER shoots at Aubrey as he runs or even pursues him. So Aubrey obviously knew they were not there to just murder him (as some have projected to be his state of mind). So he ran away – but then he decides to turn back and charge at the defendant and grab the gun. That charge was an attack. It was separate from any and all other prior action. Aubrey became the attacker at that point. The defendant NEVER shot at Aubrey – not when Aubrey ran away nor ant not even as Aubrey was charging at him. The only shots came in the struggle for the gun.

In Summary – key facts,
1. Aubrey broke away from the defendants – defeating citizen arrest.
2. Aubrey decides to turn back and charge at Defendant and grab for gun.
3. Aubrey became the attacker when he re-engaged
4. Defendant never fired – even as Aubrey was charging at him.
5. Only shots were fired in struggle for gun.

The Shots were in self-defense in struggle for deadly weapon.

What was Aubrey’s state of mind or intent as he decide to turn back and charge the Defendant ? We may never know – but it is irrelevant. Because the state of mind of the Defendant is what matters as the person re-engaged him in an attack.

This seems so clear and obvious. Why do both prosecutors and defense counsel muddy it up with all the other BS and irrelevant facts ? This was clearly self-defense. Aubrey made the decision to run back and attack. Defendant was simply defending from that attack.

Events prior to the attack do not matter. Who cares if he thought it was a burgler or a jogger ? Aubrey ran away and as far as te defendant was concerned at that moment – Aubrey got away. That was the end. Imagine his shock when Aubrey starts charging him. He likely did not shoot the charging Aubrey because he was so surprised – have thought Aubrey was gone.

And ask yourself – would you turn back to charge a man with a gun ? I would not. I don’t know anyone who would. All Aubrey had to do was to keep running away from the Defendant.


     
     1 
     
     0
    Milhouse in reply to Ben Kent. | November 23, 2021 at 7:38 pm

    It seems to me that if the attempted arrest was unlawful, and thus actually constituted an attempted kidnapping, then it was not over unless they had clearly communicated to Aubrey that he was in no further danger from them — and in a way that he could believe. Otherwise their crime — assuming it was one — was ongoing, and they had no right to self-defense in committing it. So it greatly matters whether it was lawful. And I think a plain reading of the law would say it was, since (1) they reasonably suspected Aubrey of a felony, and (2) he was trying to escape.


       
       0 
       
       4
      Char Char Binks in reply to Milhouse. | November 23, 2021 at 7:53 pm

      Running 50 yards to the gun is a funny way to escape.


       
       0 
       
       2
      Char Char Binks in reply to Milhouse. | November 23, 2021 at 7:55 pm

      Maybe they should have driven after arbery to tell him they were no longer chasing him.


       
       0 
       
       1
      Ben Kent in reply to Milhouse. | November 24, 2021 at 8:40 am

      @Milhouse – they did effectively communicate it was over by (1) not pursuing him as he ran away from them; and (2) not firing at Aubrey as he ran away from them.

      Aubrey ran away. he was 40 to 60 yards away when he decided to turn back and charge the Defendant and grab the gun. Defendant did not fire at Aubrey – even as Aubrey charged at him. The Defendant shot ONLY after Aubrey grabbed the gun.

      There are essentially 2 distinct events here:
      (1) the attempted (and failed) citizens arrest that is over when Aubrey runs and
      . . . defendants do not fire or pursue further; and
      (2) the attack on Defendant.
      >> Do not confuse the two or combine them.

      People are bringing so much emotion to to this and infer facts that are not in evidence. I see so may people trying to justify conviction or exoneration based on what they assume to be state of mind of the participants. One person wrote that “Aubrey is innocent because a bunch of redneck racists were chasing him” – but why would Aubrey think of them as redneck KKK racists ? This is not Georgia pre-Civil Rights Act. And there is no evidence that Aubrey thought the Defendants were racists.

      Just look at the facts. And race is not a factor in a fight for a gun. You don’t care what the race is of the person charging you or grabbing your gun. Imagine you are holding a gun and an Asian person charges at you and grabs for it. Does it matter to you that their Asian ? No. Of course not.

      And ask yourself – would you ever charge at a man holding a gun. I would not. I don’t know anyone who would.

      We will never know what Aubrey was thinking that made him turn-back and charge at the defendant. BUT IT DOES NOT MATTER. The only thing that matters is that the Defendant feared for his life. The shots were therefore legal self-defense.

      The Citizens Arrest thing is a red-herring. It was a failed citizens arrest. Aubrey ran away and they did not pursue him or shoot him as he ran away from them. The Citizens Arrest failed when Aubrey got a reasonable safe distance away from the Defendant. (40 to 60 yards). Defendants could have continued the citizens arrest by pursuing Aubrey – maybe they would have decided to continue the citizens arrest action – but at they time they had not and they lack of action meant that “citizen arrest” was failed and was over.

      Aubrey made a decision to turn back and attack. At that moment – he became the attacker. At that point – it does not matter how the defendant ended up standing on the side of the road with a gun. It only matters that a person decided to attack him and grab his gun.

      This is justifiable self-defense.


 
 0 
 
 2
Juris Doctor | November 23, 2021 at 5:07 pm

Two part question for Mr. Branca.

1. Is there anything that would have precluded the defense from calling the first DA who declined to prosecute as a witness?

2. If the answer to the first question is no, was it a mistake not to?


 
 0 
 
 1
Steven Brizel | November 23, 2021 at 7:16 pm

These comments were made to fit in with the politics that drove the prosecution in the first place

If you want a good laugh watch this: https://www.youtube.com/watch?v=8eJ5E_-GUGY


 
 0 
 
 1
The Friendly Grizzly | November 24, 2021 at 7:05 am

.

If you go, OK, yeah, I think they committed the crimes, you’re good.

That is interesting sentence structure for a woman who is allegedly educated.

“If you go…” is teen talk.

“You’re good”? Am I? T, or for, what?

Leave a Comment

Leave a Reply

You must be logged in to post a comment.
Font Resize
Contrast Mode
Send this to a friend