State’s closing argument was very weak. Defense closings very solid, but State has 2-hour rebuttal tomorrow!
Today was the first of two days of closing arguments in the Ahmaud 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).
So as not to bury the lede, the take-home message is that if I were being asked to render a verdict today, after listening to the State’s closing and all of the defense closing (but not yet the State’s rebuttal), and having not seen any of the actual trial, I’d be obliged to acquit all three defendants of all charges.
State Closing: ADA Linda Dunikoski
The State’s closing argument delivered by ADA Linda Dunikoski kicked things off—and it can only be described as really not very good at all—perhaps even qualifying as horrible. Mostly the defect was in tone and delivery, although it must be said that the presentation of facts was not very compelling, and she felt obliged to make various rather gross misstatements of law.
Delivery was in a mode of exasperation, with lots of kind of stomping around, hand waving, shaking of her head, as if she can’t really believe she has to actually explain all this stuff—isn’t it just obvious these defendants are guilty of all the things?
The tone involved a great deal of snark, snide remarks, and sarcasm—and while snark, snide remarks, and sarcasm may get a chuckle from your own team and the people already on your side, they do nothing whatever to persuade people not on your side to come on over. Indeed, for people not already on your side it is off-putting, and a net negative.
Presumably, the goal of the State’s closing was to persuade the jury of guilt on every count, or at least on any count, beyond a reasonable doubt, and it certainly did not have that effect on me.
My overall impression of the State’s closing was that it had the feel of a largely politically-motivated prosecution, one so lacking in genuine legal merit that not even the Prosecutor really believed she’d proven anything like guilt beyond a reasonable doubt.
I’ve heard from lawyers I respect who watched the actual trial proceedings—I was off covering the Rittenhouse trial—that Dunikoski’s performance during the trial itself was poor. I can’t speak to that from personal knowledge, as I didn’t see any of her trial performance. What I saw of her on closing, however, would not suggest a great performance during the trial proper.
One interesting facet of Dunikoski’s closing was that much of it was negatively phrased. That is, rather than make her own arguments for guilt to the jury, she spent a great deal of time predicting what the defense would argue and cautioning the jury against being “fooled” by the defense. It’s not a very effective means of persuasion, especially when it’s the State’s burden to prove guilt beyond a reasonable doubt.
Much of Dunikoski’s argument also struck me as circular. For example, she argued that the defendants ought not to be able to claim self-defense for the shooting death of Arbery, because they were committing felonies in chasing him in the first place, and you can’t claim self-defense if you’re committing a felony.
But, of course, that rather begs the question, by assuming the underlying felonies to have been already proven beyond a reasonable doubt—when that very question remains one to be answered by the jury.
Dunikoski also spent much time both mischaracterizing the law of citizen’s arrest and mischaracterizing the state of the evidence that could have contributed to a reasonable probable cause to support a citizen’s arrest—she suggested, for example, that the only basis that Travis had for probable cause was a bit of second-hand information his mother had told him. That was hardly the case, as the defense would expose in their own closing argument.
She also tried the provocation attack on self-defense, much as had the prosecution in the Kyle Rittenhouse case, arguing that the mere fact that the McMichaels had pursued Arbery while armed constituted provocation that stripped them of self-defense.
I expect the question on this issue is closer here than it was in Rittenhouse—but not if the jury believes the state has failed to disprove beyond a reasonable doubt the defendant’s initial justification of citizen’s arrest. If they were engaged in a lawful citizen’s arrest of a reasonably perceived felon, being armed while doing so would only be prudent.
In summary, I found Dunikoski’s closing to be poor, weak, and not at all compelling.
Here’s the video of her closing argument this morning:
Will State Rebuttal Be An “Ambush”?
One major caution, however: Dunikoski spoke for almost exactly an hour (1:02). It is my understanding that the judge has allowed each side a full three hours for closing. That leaves the State with a full two hours for their rebuttal.
That’s rather unusual, folks. Usually, the proportions would be the reverse of that, with rebuttal being much shorter than the initial closing argument. This matters because the defense has a chance to respond to the State’s initial closing, but they have no chance to respond to the State’s rebuttal barring very odd circumstances).
This strikes me as a likely case of the State planning to “ambush” the defense with a bunch of arguments to which the defense would wish they had an opportunity to respond, but which they’ll just have to sit and listen to in silence. This could make a big difference, because the State’s rebuttal is the last argument the jury will hear on this case before going into deliberations, and it carries corresponding weight.
This weight imbalance is further aggravated by the reality that the defense closing will have been heard an entire day prior when the jury goes into deliberations, while they will have heard the State’s rebuttal only minutes prior.
I guess we’ll find out tomorrow morning, at 8:30 a.m. ET, when the court comes back into session and the State begins its final rebuttal—which we will, of course, be live streaming and live commenting on in real-time at Legal Insurrection.
Defense Closing Argument: Each Defendant Received Separate Close
The defense closing argument took a cumulative period of about three and three-quarters hours but was split into a separate closing for each of the defendants.
The defense began with the closing argument for Travis McMichael, made by Attorney Jason Sheffield; followed by the closing argument for Greg McMichael, made by Attorney Laura Hogue; and finally, the closing argument for William “Roddy” Bryan, made by Attorney Kevin Gough.
I found the closing arguments by all three defense attorneys to be vastly superior to that of ADA Dunikoski. Each built their closing around a theme or story arc that facilitated the ability to address the nine separate counts in a coherent way. The attorneys also accurately presented the relevant law (mostly), unlike the many misrepresentations of law made by the State.
Attorneys Sheffield and Hogue were particularly good. Attorney Gough did a perfectly fine job, but not quite at the same level—fortunately, his client really has inherently the more defensible position, given that Bryan didn’t shoot anybody, didn’t even bring a gun, and apparently had no actual coordination with the McMichaels at all.
Travis McMichael Closing Argument: Attorney Jason Sheffield
Curiously, even before Attorney Sheffield was able to begin his closing argument before the jury was even brought into the courtroom, ADA Dunikoski felt compelled to run up to the judge (metaphorically speaking) and point an accusatory finger at Sheffield.
She was upset that he was apparently going to be using exhibits that she had not previously seen—presumably exhibits she feared would be compelling to the jury. As Sheffield correctly pointed out, however, there’s liberal permission to use demonstrative exhibits during his closing, just so long as what they are demonstrating was actually presented as evidence during the trial itself. Ultimately Judge Timothy Walmsley asked only for a modest adjustment to a single PowerPoint slide, and the rest of the demonstrative exhibits were good to go.
I actually posted a comment at the time that ADA Dunikoski looked scared here—and it’s not the first time today that I had that definite impression. I suspect she sees her case in real danger.
Sheffield put a lot of emphasis on Travis’ Coast Guard experience, which was largely 9 years as a Boarding Officer—this is a position with many LEO-like responsibilities, including arrest, search, officer presence, de-escalation, aggressive response techniques, use of small arms, weapons training, weapons retention, and so forth.
He also did a great job of providing context to what the local neighborhood was going through during that period, and frankly, it was a set of circumstances that’s become all too familiar in many of these high-profile, politically-energized cases.
Here’s the general theme: A community finds itself suddenly awash in crime—generally property crimes of varying degrees, some definitely endangering life. Petty theft of items left unattended, lawnmowers taken from open garages, outright felony burglaries, even home invasions. The police either declined to respond or the response is ineffective.
The community decides they need to do something themselves. They start Neighborhood Watch, they buy guns, they start calling in suspicious activity and license plate numbers to 911. Then there’s a confrontation between a member of the neighborhood and a miscreant, with the miscreant ending up shot dead, usually in circumstances that look overwhelmingly like lawful self-defense.
Nevertheless, and especially if the dead miscreant turns out to be a racial minority or of a political faction favored by the Progressive Left, there’s an immediate hyper-politicization of the event as racist, white supremacist, or otherwise beyond the pale. The neighborhood member, now the defendant in a murder trial, suddenly find their lives destroyed, and face the prospect of the rest of their life in prison—and the only thing that can save them is a fair and impartial jury.
That was the pattern in the George Zimmerman shooting, it was the pattern in the Kyle Rittenhouse shootings, and it is the pattern in the shooting death of Ahmaud Arbery.
What had been a charming little community was being ravaged by property crimes and burglaries. Homeowners began installing security cameras all over their homes for the first time. Parents would not allow their children to play outside after dinner, and then not at all.
People began keeping guns accessible and talking with each other in person and in social media about the growing crime problem. They also began to make a lot of calls to 911, but the police response was ineffectual, as the suspicious persons were usually gone by the time the police arrived.
Apparently, one of the criminal predators committing serial property crimes in this neighborhood was one Ahmaud Arbery. He’d been caught repeatedly on surveillance camera, generally in the dark of night, inside a local home under construction from which thousands of dollars of property had been stolen over time—generally in the dark of night. On at least one occasion he’d been frightened into flight by neighbors seeing him lurking in shadows among houses, and having headlights put on him as the neighbors called 911.
Travis McMichael himself had a pistol stolen from his car, and a short time before the Feb. 23 death of Arbery had himself spotted Arbery lurking by the home under construction in the dark, called 911, put his headlights on Arbery, and observed Arbery realizing he’d been spotted and reaching for his waistband as if for a weapon. The 911 recording made contemporaneously with these events was played in court, and you can clearly hear the stress in Travis’ voice.
Sheffield hit on the important legal and evidentiary points. Felony burglary does not require that any property be actually stolen, for example, so all the State’s talk about Arbery not having stolen property in his possession was completely irrelevant. Similarly, there was never any evidence introduced at any time in the trial that Arbery ever recreationally jogged in that neighborhood—not a single family member, friend, or resident of the community testified to anything like that.
Sheffield also spent a great deal of time—important time—on the conditions required for a valid citizen’s arrest—obvious the entire lynchpin of the defense. If the citizen’s arrest was lawful, everything was almost certainly lawful, as well. If the citizen’s arrest was unlawful, however, then likely all the subsequent conduct beings to look a lot like the felonies the State claimed them to be.
In my own analysis of the relevant Georgia citizen’s arrest statute (since repealed), it was my position that the statute required mere reasonable suspicion if the suspect being subject to citizen’s arrest was in flight from a felony. Otherwise, I concluded, the arrest would require probable cause, a substantially higher threshold.
The lawyers on closing, and presumably throughout the trial, adopted the higher probable cause standard, which surprised me—given that none of the defendants claimed to have actually seen Arbery steal something, it seemed unlikely that probable cause could be established—and if no probable cause, under this standard then no lawful citizen’s arrest, etc.
The position of the defense, however, is that the grounds for probable cause should not be limited strictly to the observations made and knowledge acquired in the moments immediately preceding the arrest of Arbery. Rather, they took a “totality of the circumstances” view of probable cause, that incorporated everything the defendants knew about the felony burglaries in the neighborhood generally and at that home under construction in particular, as well as everything the defendants knew about Arbery—because Travis, in particular, knew that the person he had induced to flee from that property on the prior occasion when he’d had 911 on the phone, was the same person that was fleeing from the same person fleeing on February 23, he knew the same person was on video plundering the home, and so forth.
So, what justified the reasonable perception of probable cause for the citizen’s arrest on February 23 was not just Arbery’s apparently felonious conduct on February 23, but his apparently felonious conduct on prior occasions, as well.
Not a bad argument, and one that begins to look a great deal like probable cause for a lawful citizen’s arrest under the then-existing statute.
An analogy to this might be if a police officer had possessed all the Arbery-related information and prior conduct that Travis McMichaels had possessed, and then also observed Arbery’s flight conduct the afternoon of Feb. 23, would that officer have had probable cause to make an arrest—and the answer is certainly yes.
While Travis was not a police officer on Feb. 23, the probable cause standard is the same in the context of the then-existing citizen’s arrest law.
Sheffield then does a deep dive on just about every step of the interaction from the point Arbery is first spotted in flight to the point of his death resulting from his fight for Travis’ shotgun, but stepping through all that is beyond the scope of a blog post. Instead, I present for your viewing pleasure the video of Sheffield’s closing argument, below.
His final arguments to the jury were interesting as well. He characterized Travis as someone who in his Coast Guard experience had entered dangerous waters to save those in peril, and that on Feb. 23 he was doing the same on behalf of his community—and now the defense was asking the jury to do the same for Travis, and find him not guilty on all charges.
In short, Sheffield presented a compelling narrative of innocence for his client, Travis McMichael.
Greg McMichael Closing Argument: Attorney Laura Hogue
The Greg McMichael closing was presented by Attorney Laura Hogue, and she also did a great job—arguably with one notable exception.
Hogue hit hard on the notion of community, neighborhood, and safety—how we all wanted to live in a place like that, and how all of those qualities were being destroyed by criminal predation in that particular neighborhood.
She also spared no punches in noting that Arbery was very much part of that criminal predation.
Unlike what we saw in the defense closing gin Rittenhouse, however, Hogue expressed genuine sympathy for Arbery’s tragic fate, as well as for his family. In his teens, she acknowledged, he’d apparently been a lovely boy with great potential. But in his 20s he went off the rails, and by the time of his encounter with Travis McMichael, he’d simply become a criminal thieving and plundering his way through life.
She noted that it was incontestable that it was Ahmaud Arbery returning night after night, repeatedly caught on camera, at the same time thousands of dollars worth of property was disappearing. Did we have a picture of Arbery walking off with the property? No. But the only reasonable inference of someone skulking around another person’s home at night, with valuable property found missing the next day, is that the person skulking was plundering that property, and engaged in felony burglary under Georgia law.
At one point during Hogue’s closing ADA Dunikoski felt compelled to object that some statement being made by Hogue was not actually in the evidence presented at the trial. The point was really rather inconsequential, and Hogue wasn’t meaningfully hindered.
Looking at my notes I see this was the second time that I live commented: “Prosecutor Dunikoski sounds scared.”
Hogue also pointed out that given Arbery’s actual conduct, the conduct of which he was of course fully aware, there could be no real doubt that he knew exactly why he was being pursued on February 23, re-doubling his efforts at flight when informed that the police were coming—that he was reasonably suspected of being a felony burglar. An innocent recreational jogger has no need to fear a police response—a previously convicted felony burglar very much does.
Hogue also mocked the State’s characterization of Arbery as merely doing a “lookie-loo” in an “open unsecured construction site,” noting that it’s not a “lookie-loo” when thousands of dollars of property is being taken, and that “open unsecured construction site” was somebody’s dream home trying to be built, and fully sufficient for Georgia’s felony burglary statute.
It’s all “just property crime,” until it’s your property being taken, your home being invaded, your children who can’t play outside anymore for fear of their safety.
She also mocked the State’s repeated characterization of the defendant’s decision to pursue Arbery as a “driveway decision,” noting that the defendants were not the only people engaged in a “driveway decision” that day—so had Arbery himself, when he walked up the driveway to that home under construction and snuck in once again.
In wrapping up she also nicely braced the jurors for their duty—deliberations are not a negotiation, and there ought to be no compromise. The jurors may talk and debate, but at the end of the day, they must each come to what they individually feel is the just verdict.
And, of course, Hogue judged that on these facts and law, the only just verdicts must be not guilty on all counts.
The one misstep I mentioned earlier was Hogue’s reference to Arbery’s “long dirty toenails.” Apparently, some of the defense had argued during the trial that one of the reasons we know that Arbery wasn’t simply a recreational jogger is that he had long, dirty toenails, and a real jogger would keep their toenails neatly trimmed.
No, I don’t get it either.
In any case, other than the toenails thing, a very good job by Attorney Laura Hogue for Greg McMichaels.
Roddy Bryan Closing Argument: Attorney Kevin Gough
Finally, the defense wrapped up closing arguments with Attorney Gough speaking on behalf of his client, Roddy Bryan.
The most remarkable part of this close to me was that it was apparently revealed during the trial that there was no real coordination between Bryan and the McMichaels at all. Indeed, they hardly knew each other. On this day there was no communication between them at any time prior to the shooting, and no coordinated effort with respect to Arbery at all.
Further, Bryan did not know, and had no way of knowing, that the McMichaels were armed until moments before the fatal shots were fired; he could not have known that a shot would be fired; and by the time it was apparent that shots were being fired he was down the road fro the scene and not in a position to do anything about it, anyway.
All that is much to Bryan’s favor in his legal defense. He does, however, also appear to have some weaknesses, which to my eye seem to spring less from evidentiary merit than they do from some kind of cognitive disability on Bryan’s part.
Indeed, Gough opened up his closing statement by noting that certainly, nobody would ever claim that William “Roddy” Bryan was the smartest guy in the room.
Apparently, Bryan had made a number of statements for police that were readily amenable to deliberate misinterpretation by police and prosecutors. So, for example, when describing approaching Arbery at some intersection while in his pickup truck, Bryan might describe that encounter as “And that’s when I ran into him at the corner.”
Now, if I were to tell my wife that I’d “run into” her sister at the supermarket, my wife wouldn’t assume that meant I’d run her sister over with my car—but that’s how the prosecution sought to characterize Bryan’s statement—even though there was zero physical evidence on Bryan’s vehicle or on Arbery’s person that he’d been struck by a vehicle at speed.
So, mostly Gough repeatedly pointed out that Bryan didn’t have a gun, didn’t shoot anybody, wasn’t a party to the McMichaels, had no idea what intentions they might have, had fully cooperated with the police from the first moments after the encounter (as had all the defendants), and so forth.
Gough also made a bunch of technical legal arguments about why Bryan bore no criminal liability, including lack of causation between his conduct and Arbery’s death, lack of intent, lack of means, and so forth.
All in all, it was a solid job by Attorney Kevin Gough for his client William “Roddy” Bryan.
Again, here’s the video of Gough’s close:
The Dog That Did Not Bark in the Night
Before I let you all go, I have another general observation to make in the context of many of these high-profile politically-motivated prosecutions.
Often these cases that are brought for political purposes have little or no actual legal merit. But, politics demand that they be prosecuted. So, what to do, what to do, what to do.
Well, one common approach by less than ethical prosecutors is to throw some particularly inflammatory claim into the charging document, criminal complaint, or information used to drag the defendant into court. Think of this as an accelerant used as a “cheat” to start a fire pit blaze. A little bit of gasoline goes a long way to get logs to ignite.
In the case of George Zimmerman, the “accelerant” used was the claim that George Zimmerman had “racially profiled” Trayvon Martin—in other words, targeted Martin for lethal attention solely because Martin was black. Clearly racist conduct. This claim was buttressed when news media released a doctored version of Zimmerman’s 911 call which was made to look as if Zimmerman had spontaneously offered up Martin’s race to the dispatcher. (In fact, the dispatcher had asked.)
When the case got to the actual trial, however, this claim of racial profiling was never mentioned, never argued, never supported by even the thinnest reed of evidence. Given how potent such a “fact” would be if supported by evidence, one can only assume there was no evidence to support it
In other words, the whole “racial profiling” claim, the lynchpin of the State’s sworn information, the accelerant that finally scorched Zimmerman into a trial charged with malice murder (malice predicated on racial animus in the form of racial profiling), was nonsense. It was a complete and utter fabrication.
But that was fine, I guess, because the claim did what the prosecution needed it to do—it got George Zimmerman into court where the prosecution could beat on him for a few weeks, and maybe get a conviction despite the lack of legal merit to the charges.
And if Zimmerman got acquitted, as he did, that’s fine—the process itself would prove a vicious punishment—and it has.
In this case, the “accelerant” was the claim that one of the McMichaels had stood over Arbery’s dead body and contemptuously said, “stupid n-word.” Except, of course, saying the n-word portion.
Clearly a sign of racist motive and intent, right? The horror! Naturally, this claim of racist conduct was central to the defendant’s here getting charged with multiple counts of murder and other felonies.
The number of references to the “stupid n-word” statement made in the actual trial? None. It’s disappeared.
But that’s fine, I guess, because the claim did what the prosecution needed it to do—it got the defendants into court where the prosecution could beat on them for a while, and maybe get a conviction despite the lack of legal merit to the charges.
What’s interesting is that nobody ever looks back and notes, hey, the claim that made that charging document apparently viable, that turned out to be complete nonsense—meaning the legal grounds for dragging this defendant into a murder trial was inherently defective.
Shouldn’t we maybe not do the trial then?
That seems to me to be the only appropriate remedy—but it never happens.
My Verdict Based on Today: Not Guilty on All Charges
As I noted at the start of today’s content, if I were obliged to arrive at a verdict based solely on today’s closing arguments, it would be an easy call for acquittal on all charges. The State came nowhere close to convincing me of guilt beyond a reasonable doubt on any of the counts in this indictment for any of these defendants.
That said, the State’s not done yet, and there remains the possibility that they’ll deliver an explosive ambush rebuttal tomorrow, especially given the full two hours they appear to have set aside for the effort.
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.
Attorney Andrew F. Branca
Law of Self Defense LLC
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