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:
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.
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