A panel of judges from the 11th U.S. Circuit Court of Appeals in Atlanta was scheduled to hear oral arguments Wednesday in a case that followed a national outcry over Arbery’s death. The men’s lawyers argue that evidence of past racist comments they made didn’t prove a racist intent to harm.
On Feb. 23, 2020, father and son Greg and Travis McMichael armed themselves with guns and drove in pursuit of Arbery after spotting the 25-year-old man running in their neighborhood outside the port city of Brunswick. A neighbor, William “Roddie” Bryan, joined the chase in his own truck and recorded cellphone video of Travis McMichael shooting Arbery in the street.
More than two months passed without arrests, until Bryan’s graphic video of the killing leaked online and the Georgia Bureau of Investigation took over the case from local police. Charges soon followed.
All three men were convicted of murder in a Georgia state court in late 2021. After a second trial in early 2022 in federal court, a jury found the trio guilty of hate crimes and attempted kidnapping, concluding the men targeted Arbery because he was Black.
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In legal briefs filed ahead of their appeals court arguments, lawyers for Greg McMichael and Bryan cited prosecutors’ use of more than two dozen social media posts and text messages, as well as witness testimony, that showed all three men using racist slurs or otherwise disparaging Black people. The slurs often included the use of the N-word and other derogatory terms for Black people, according to an FBI witness who examined the men’s social media pages. The men had also advocated for violence against Black people, the witness said.
Bryan’s attorney, Pete Theodocion, said Bryan’s past racist statements inflamed the trial jury while failing to prove that Arbery was pursued because of his race. Instead, Arbery was chased because the three men mistakenly suspected he was a fleeing criminal, according to A.J. Balbo, Greg McMichael’s lawyer.
Greg McMichael initiated the chase when Arbery ran past his home, saying he recognized the young Black man from security camera videos that in prior months showed him entering a neighboring home under construction. None of the videos showed him stealing, and Arbery was unarmed and had no stolen property when he was killed.
Prosecutors said in written briefs that the trial evidence showed “longstanding hate and prejudice toward Black people” influenced the defendants’ assumptions that Arbery was committing crimes.
“All three of these defendants did everything they did based on assumptions — not on fact, not on evidence, on assumptions. They make decisions in their driveways based on those assumptions that took a young man’s life,” prosecutor Linda Dunikoski said in court in November 2021.
In Travis McMichael’s appeal, attorney Amy Lee Copeland didn’t dispute the jury’s finding that he was motivated by racism. The social media evidence included a 2018 Facebook comment Travis McMichael made on a video of Black man playing a prank on a white person. He used an expletive and a racial slur after he wrote wrote: “I’d kill that …. .”
Instead, Copeland based her appeal on legal technicalities. She said that prosecutors failed to prove the streets of the Satilla Shores subdivision where Arbery was killed were public roads, as stated in the indictment used to charge the men.
Copeland cited records of a 1958 meeting of Glynn County commissioners in which they rejected taking ownership of the streets from the subdivision’s developer. At the trial, prosecutors relied on service request records and testimony from a county official to show the streets have been maintained by the county government.
Attorneys for the trio also made technical arguments for overturning their attempted kidnapping convictions. Prosecutors said the charge fit because the men used pickup trucks to cut off Arbery’s escape from the neighborhood.
Defense attorneys said the charge was improper because their clients weren’t trying to capture Arbery for ransom or some other benefit, and the trucks weren’t used as an “instrumentality of interstate commerce.” Both are required elements for attempted kidnapping to be a federal crime.
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Prosecutors said other federal appellate circuits have ruled that any automobile used in a kidnapping qualifies as an instrument of interstate commerce. And they said the benefit the men sought was “to fulfill their personal desires to carry out vigilante justice.”
The trial judge sentenced both McMichaels to life in prison for their hate crime convictions, plus additional time — 10 years for Travis McMichael and seven years for his father — for brandishing guns while committing violent crimes. Bryan received a lighter hate crime sentence of 35 years in prison, in part because he wasn’t armed and preserved the cellphone video that became crucial evidence.
All three also got 20 years in prison for attempted kidnapping, but the judge ordered that time to overlap with their hate crime sentences.
If the U.S. appeals court overturns any of their federal convictions, both McMichaels and Bryan would remain in prison. All three are serving life sentences in Georgia state prisons for murder, and have motions for new state trials pending before a judge.