Apparently the jury is to figure out how to apply a citizen’s arrest law that befuddles the lawyers and judge.
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. I covered the Dunikoski rebuttal in my previous piece of content, so here I’ll cover Judge Walmsley’s instruction of the jury.
Well, more accurately, I’ll cover the small portion of that instruction that’s the part that really matters here—the instruction on citizen’s arrest, §17-4-60. Grounds for arrest. And that instruction was an exercise in patent professional failure of duty on the part of Judge Walmsley.
This entire case essentially hinges on the question of the underlying citizen’s arrests. If the effort to make a citizen’s arrest of Ahmaud Arbery was lawful, then everything that follows was likely also lawful.
Conversely, if the effort to make a citizen’s arrest of Arbery was unlawful, then everything that follow was also likely unlawful.
And both sides fully understand this. In particular, ADA Linda Dunikoski is fully aware that if she loses the jury on the question of citizen’s arrest, she loses the trial entirely.
Naturally, then it’s in her interest to have the citizen’s arrest statute interpreted as narrowly as possible—and there’s definitely room for interpretation in this statute that was first made law back around the Civil War, and makes use of legal terms of art that likely don’t mean today what they might have meant back in the day.
Certainly, nobody drafting a citizen’s arrest statute today would construct it as this one is constructed.
The amount of ambiguity in the statute is really remarkable if only because of the statute’s brevity—it is only two sentences long. Those two sentences are:
A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.
My own reading of that statute, applying normal rules of statutory construction, is that the two sentences present two different scenarios for a citizen’s arrest. The second sentence refers explicitly to a felony scenario and sets out certain requirements for that scenario that differ from the requirements set out in the first sentence. My reading is that the first sentence is therefore contemplating the alternative criminal scenario, the non-felony, the misdemeanor.
So, if the citizen’s arrest is being made for a serious felony, like murder, the person making the arrest is required to have reasonable and probable grounds of suspicion, which Judge Walmsley is interpreting as probable cause. Fair enough.
If the citizen’s arrest is being made merely for a misdemeanor, however, then probable cause is not enough. After all, an arrest is a real burden on a person’s personal liberty, and ought not be done lightly
Before we’ll allow a citizen’s arrest for a relatively minor crime, then—imagine shoplifting, for example—we’ll require more than just probable cause, we’ll require that the offense was committed in the presence of the person making the arrest, or that they have immediate knowledge of the offense (perhaps observed from a distance, for example).
So, my reading of this citizen’s arrest statute is that the first sentence refers to arrests premised on a misdemeanor offense, and the second sentence refers to arrests premised on a felony offense.
ADA Dunikoski urges a different reading of this statute. She argues that the first sentence is supposed to apply to all citizen’s arrests, whether for misdemeanor or felony offenses, such that any citizen’s arrest requires that the offense be committed in the presence of or with the immediate knowledge of the person making the arrest. The second sentence then adds additional conditions—the probable cause requirement—that must be met in the case of felony arrests.
This construction makes no sense to me, if only from a public policy perspective. Why? Because it makes it easier to make a citizen’s arrest, to constrain a person’s liberty if they’ve merely committed a misdemeanor like shoplifting than if they’ve committed a heinous felony like murder. That doesn’t make sense to me.
In addition, if we’re supposed to read in the “presence/immediate knowledge” into the second sentence, then the “probable cause” language in the second sentence serves no purpose.
If the offense occurred in your presence or with your immediate knowledge you have a degree of certainty that’s vastly greater than mere probable cause—you know for certain that the offense happened. Probable cause is merely a probability that it happened. That’s less than certainty.
It’s like saying that before you can make any arrest you have to be 100% certain of the offense, but before you can make a felony arrest you also have to be 51% certain. That makes no sense.
So, as you might expect, I favor my reading of the Georgia citizen’s arrest statute over the reading that ADA Dunikoski urges.
In any case, however, at the end of the day, the question of how this law is to be applied in this criminal trial is not up to me, and it’s not up to ADA Dunikoski
And most definitely of all, it’s absolutely not up to the jury, whose job is to be the finder of fact, to work through any ambiguity of evidence—not to work through the ambiguity of law.
The person in charge of the law in a trial is the judge—in this case, Judge Timothy Walmsley. It is his duty to decide how the law is to be applied to the facts as the jury determines those facts to be proven or not proven.
And this Judge Walmsley abjectly failed to do. And in a trial with three defendants looking at life in prison, that’s a contemptible professional failure.
Remember—the key issue is whether the two sentences in the citizen’s arrest statute are intended to be melded together so that both apply to all arrests, or whether the conditions of the first sentence refer to misdemeanor arrests and the conditions of the second sentence refer to felony arrests.
That’s the fundamental issue that Judge Walmsley needed to resolve.
And he did not.
Here’s the video and a transcript of the relevant portion of his instruction to the jury on citizen’s arrest, with the critical paragraph italicized:
The private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony, and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.
At no point does the Judge tell the jury whether they are to treat the two statutory sentences as both applying in all arrests, or whether the separate felony conditions are to be independently applied in the case of an arrest predicated on a felony offense.
So with all the legal experts in that courtroom—three attorneys for the State, and apparently 6 attorneys for the defense, plus Judge Walmsley—we are going to leave the fate of these three defendants to however the jury decides to interpret an ambiguous statute that appears to befuddle even the experts.
It was the duty of Judge Walmsley to decisively construct a non-ambiguous jury instruction from this ambiguous statute. Sure, maybe a later appellate court would decide he’d done it wrong, and reverse him—but at least he’d have done it, which is his duty.
I would also note, that had Judge Walmsley done his duty and resolved the ambiguity of this statute, there’s only one possible legally-sound outcome—that the two sentences not be conflated, but rather be treated separately.
Why is that? Because under the legal doctrine of lenity, when a criminal statute is ambiguous, that ambiguity is always to be resolved in the favor of the defendant, never in the favor of the State. It is the government that drafted that statute and passed it into law, not the defendant. If they left in ambiguity, that’s on the government, not the defendant.
In short, Judge Walmsley dropping the ball on this all-important citizen’s arrest jury instruction simply makes this entire trial little better than a train wreck, and any guilty verdict this jury delivers is inevitably tainted by the failure to provide the jury with clear and unambiguous instructions on the key legal issue in the case, the issue that determines guilt or acquittal for these three men on charges that would put them in prison for the rest of their lives.
In any case, here’s the entirety of the instruction of the jury by Judge Walmsley—other than the bungled citizen’s arrest jury instruction, everything else was boringly common:
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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