Did a defense attorney really argue that Ahmaud Arbery deserved to die because he was wearing khaki shorts and needed a pedicure?  

The Ahmaud Arbery case may be a relic of the Old South, but the acts in question only date back to February of 2020.  The three men who chased, cornered and killed Mr. Arbery originally told authorities that they were making a citizen’s arrest.  Unfortunately, the arrestee attacked his attackers, so they were forced to kill him in self-defense.

A prosecutor bought that story and refused to prosecute. 

The citizen’s arrest law the men had in mind dates back to 1863.  As you likely guessed, the law was primarily used to apprehend runaway slaves.  The defendants in the Arbery case, (Travis McMichael, McMichael’s father Greg and William “Roddie” Bryan), were well-known in the neighborhood, so the prosecutor gave them the benefit of the doubt.

Then video footage of the incident, captured by one of the perpetrators, emerged.  Although the actual shooting incident was obscured by a truck, no one questions that the three heavily armed men chased Arbery for five minutes in two pickup trucks. 

Yet in her closing argument, defense attorney Laura Hogue, blamed the victim.  Given the undisputed facts of the case, this took some hutzpah.  What exactly had Arbery done to provoke the ire of the defendants?  He was running. But testimony has confirmed that Arbery was a dedicated runner.  Runners run.  They run through neighborhoods.  We’ve all seen them do it.  Practically every day.

But Ahmaud Arbery wasn’t just a runner.  He was a Black runner.  And, since Georgia’s citizen’s arrest law was passed in 1863, a Black man running through a predominantly white neighborhood where he doesn’t belong is inherently suspicious behavior.  He couldn’t just be running; he had to be running away from something. 

How did Laura Hogue know that the victim’s toenails were in need of attention?  She culled that little detail from the autopsy report.  She didn’t mention the huge, gaping wound in his chest; the wound through which the life blood of Armoud Arbery gushed to the pavement.  No, she dwelt on his toenails.  I guess you work with what you’ve got.

“Turning Ahmaud Arbery into a victim,” Hogue said, “after the choices that he made does not reflect the reality of what brought Ahmaud Arbery to Satilla Shores in khaki shorts, with no socks to cover his long dirty toenails.”  She dwelt lovingly on each word: “long . . . dirty . . . toenails”.

Why mention the toenails?  Because, Hogue suggested, a law-abiding citizen would keep his toes trimmed.  And an upstanding member of the community would certainly have been wearing socks inside his running shoes.  Besides, the toenails of the deceased weren’t just long, Hogue noted, they were dirty.  Would a God-fearing man have dirty toenails?

“No one but Ahmaud Arbery,” Hogue continued, “made the decision to either reach for, or certainly give the very real impression, that he was reaching for a handgun… and no one but Ahmaud Arbery made the decision not to stop when Travis’ truck rolled up beside him.”

True, the victim wasn’t carrying a handgun.  And trial testimony makes clear that the shooter never felt threatened by his victim.  But Arbery must have been reaching for a gun, even if he didn’t have one. His mistake, Hogue suggested, was to give the “very real impression” that he had a gun when he didn’t. 

I have never owned a gun.  But if I was shot dead on the street, my killer could say he thought I was reaching for a weapon.  And I wouldn’t be around to suggest otherwise.  

Most of the legal experts consulted by news agencies have been critical of Hogue’s remark.  Some said Hogue should be sanctioned. 

Florida attorney Mark Eiglarsh, an ex-prosecutor, had a different take.  In his view, Hogue “had the pulse of the jury.”

Eiglarsh admitted that he found Hogue’s comment “personally, extremely offensive.” That sounds like criticism, but it was actually the highest form of praise. “As outrageous and offensive as I found it personally,” Eiglarsh said, “I know that she wouldn’t have made it if she didn’t think it would resonate with those particular jurors.”

There is some truth behind this remark.  Over the past twenty years of criminal justice advocacy, I have combed through a lot of trial transcripts.  I am typically appalled by the unwillingness of defense attorney’s to provide a stout and convincing defense, even when the facts demand it.  When you defend a client accused of committing a dreadful crime, you can be seen as complicit unless you mount what everyone perceives to be a half-hearted defense. 

For this reason, defense attorneys often make wink-and-a-nod comments designed to assure jurors defense arguments shouldn’t be taken too seriously.  In one case I covered, the defense attorney assured the jury that he was good friends with the sheriff, the judge and the prosecutor.

Our judicial system is supposed to be adversarial.  Defense counsel should do everything within the law to sway a jury.  But in the case of Shaun Cooks, referenced above, a young Black man stood accused of firing his weapon at a white Sheriff’s deputy.  The jury, (as with the Kyle Rittenhouse and Armoud Arbery trials) was comprised of eleven white jurors and a single Black juror.  How could Mr. Cooks’ attorney possibly “have the pulse” of a jury like that?  How could he have defended his client by appealing to low-down, nasty impulses?  He couldn’t.  Only white clients benefit from appeals to bigotry.

Eiglarsh’s analysis implies that, in the view of the defense team, the white jurors observing this trial are riddled with the crudest kind of racial prejudice.  Only a racially prejudiced juror would be moved by Hogue’s vile rhetoric.  We’ll see if it works.

Similarly, an unbiased jury would be appalled by the assertion from Kevin Gough, the attorney for William Bryan Jr., that there were too many Black pastors in the courtroom.  This was in reference to the Rev. Al Sharpton, who was seated next to the victim’s mother.  Gough was clearly trying to appeal to a perceived racial animus.  Why else make this comment?  Pastors, like every other American citizen, have every right to attend trials if they so desire.  Gough’s comment received a severe rebuke from the trial judge.  But the defense team didn’t care.  They are clearly convinced that the jurors will respond to Jim Crow-era racial taunts.  Besides, that’s all they’ve got to work with.

As I write, the jury has retired to consider its verdict in this case.  I anticipated an acquittal in the Rittenhouse case.  Wisconsin gun laws made it perfectly legal for an underage kid to stroll down the street with an assault weapon.  Besides, some argument could be made that Rittenhouse felt his life was in danger.  I didn’t buy the argument, but I feared the jury would.  Unfortunately, I was right.

But the Arbery case is different.  The fact issues all move in the prosecution’s favor.  Moreover, the prosecution in the Rittenhouse case was not nearly as skillful as the work on display in Georgia.  To round things out, the judge in the Arbery case has been far more even-handed than his counterpart in the Rittenhouse fiasco.

The Rittenhouse verdict, and its rapturous reception in Red America, appeared to vindicate the worst kind of vigilante violence.  If the defendants in Brunswick, Georgia don’t do serious time for their despicable acts, we will see much more of this barbarity.

Just how racist is America?  A Georgia jury is poised to tell us.

   

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