The Reality of Ahmaud Arbery’s Murder vs. the Race Obsession of Biden’s DOJ

Georgia’s successful state prosecution, which relied on hard evidence, not woke-left demagoguery, illustrates the politicized nature of the Justice Department’s civil-rights indictment.

J ustice was done in Georgia on Wednesday when a state-court jury convicted three defendants for the murder of Ahmaud Arbery. The guilty verdicts are not only the appropriate resolution of this mournful case, they highlight the injustice — more specifically, the now-familiar racialized demagoguery — of the Biden Justice Department’s indictment of the same defendants on transparently political “civil rights” grounds.

The media-Democrat complex’s obsession notwithstanding, the killing of Arbery, a 25-year-old black man, was not a case about race. It was a case about tragic mistakes of law, which led to an unjustifiable homicide.

There were real reasons to suspect that Arbery could have been involved in property theft at a lot under construction in Satilla Shores, a neighborhood in the coastal city of Brunswick, Ga. Police were aware that he had been caught on surveillance cameras trespassing on the site several times prior to his fateful appearance there on February 23, 2020. One of the defendants had seen him there late at night, acting furtively.

Still, Arbery was far from the only person who trespassed through the site, and there was no probable cause that he had stolen anything. Consequently, there was no basis for the three defendants — Travis McMichael, his father Greg McMichael, and their neighbor William “Roddy” Bryan — to assault and try to detain Arbery and to try to effect a citizen’s arrest by cornering him in their trucks as he tried to run away. Given that Travis McMichael was thus provoking Arbery by this legally insupportable onslaught, he was not justified in using force — much less lethal force — in the final confrontation, shooting Arbery to death with his Remington rifle. Greg McMichael and Roddy Bryan clearly aided and abetted Travis. And the elder McMichael, a former cop and district attorney’s office investigator who instigated the improvident chase, acted shamefully in leaning on his law-enforcement connections to discourage a full investigation.

All three defendants were convicted of murder. The verdict, however, demonstrated that the jury, which deliberated for two days, closely examined the evidence and made careful distinctions. Only Travis McMichael was convicted of malice murder — essentially, intentional murder under Georgia law. That made sense: He was the shooter who had catalyzed the fatal confrontation. The other two defendants were acquitted of malice murder but convicted of felony murder, with the jury finding that they committed forcible crimes against Arbery that resulted in his killing, even if they had not intended that outcome.

On that score, Greg McMichael, the most culpable actor, was convicted of all four underlying felonies — two aggravated assaults, false imprisonment, and attempted false imprisonment — and thus of the related felony-murder charges. Bryan, the least culpable defendant, was acquitted on one of the aggravated assaults to which he was only tangentially connected, and thus acquitted of the related felony murder count; but he was convicted on the other three felony murder counts, and the underlying felonies in which he was clearly complicit.

Significantly, during the jury deliberations, the New York Times made an interesting observation — more interesting, perhaps, than it may have appreciated:

The jury that will decide the fate of the three white men accused of murdering Ahmaud Arbery is composed of 11 members who are white and one who is Black. The lopsided balance — especially in a case that has been widely perceived as an act of racial violence — has been a cause of concern for civil rights activists. And it prompted legal experts in recent days to speculate that the racial makeup of the jury played a role in prosecutors’ decision not to make racial animus part of their case against Mr. Arbery’s assailants. [Emphasis added.]

Why do I call your attention to the highlighted portion of this passage?

In part, it is because District Attorney Linda Dunikoski presented a very strong case without alleging that the defendants attacked Arbery because of his race. As I’ve previously related, the case has been covered by the media as if it were solely about race — as if the allegation were that the McMichaels and Bryan chased Arbery down and killed him solely because he was black. But it wasn’t. The defendants were not randomly hunting down black men; they were trying to chase down a particular man, who was black, because they suspected him of a crime.

Their belief that they had probable cause to make a citizen’s arrest and use lethal force was unreasonable. Their suspicion that Arbery was up to no good was not. It was rational, but under the circumstances, rational is not good enough. Indeed, though Arbery had no business being on the construction site in a neighborhood that had experienced a surge in property crime, the McMichaels could not even tell police exactly what crime they suspected he’d committed. In the end, it seemed they were more of a mind to detain Arbery so that the police could identify him. That is not a valid basis for making a citizen’s arrest, to say nothing of using lethal force to make one.

But I also highlighted that passage for another, more important reason.

Not content to let Georgia handle the prosecution of this state homicide, the Biden Justice Department has filed an indictment against the McMichaels and Bryan. It charges civil-rights crimes that carry potential life-imprisonment sentences, and even possibly the death penalty against the two McMichaels. (The statute prescribes death as a potential penalty if the offense results in death; it is not clear that the Biden administration would seek capital punishment.)

Here is the point: The theory of the Justice Department indictment is that the defendants killed Arbery because he was black. Not because they mistakenly believed they had probable cause to arrest him. Not because Travis McMichael mistakenly believed he had a self-defense privilege to shoot Arbery when the latter rushed him. According to DOJ, Arbery was murdered because of his race, period.

It is actually worse than that. Although the civil-rights offenses charged require proof beyond a reasonable doubt that the defendants murdered Arbery “because of his race [and] color,” and although the Justice Department’s indictment explicitly alleges that they did so “because of Arbery’s race and color,” the indictment does not actually allege any factual basis to believe that the defendants acted against Arbery because of his race.

That is, according to the progressive radicals who run the Biden Civil Rights Division, we are to presume racism because the defendants are white and Arbery was black. This is their indictment not of the McMichaels and Bryan but of American society. We are to conclude that Ahmaud Arbery was murdered by systemic racism, embodied in all its indelible evil by three good ol’ boys from the Deep South.

So here is the question: If the McMichaels and Bryan murdered Ahmaud Arbery because they are white racists and he was a young black man, how could the state of Georgia possibly manage to prove the crimes without establishing that racial animus was the decisive issue in the case — in fact, without even trying to establish it as such.

When prosecutors try a murder case, they don’t shrug their shoulders and say, “Well, sure, we may have convincing evidence of motive, but let’s not bother to prove it. We can do without.” If you have powerful motive evidence, you place it before the jury — a hundred times out of a hundred.

Here, there’s even more to it than that.

Generally speaking, prosecutors are not required to prove motive, just permitted to do so. That is because motive is usually not an essential element of a criminal offense — such elements being the acts and state of mind that must be proved beyond a reasonable doubt. Motive is saliently distinct from intent (mens rea), which is always an essential element. Normally, a crime involves a bad act (actus reus) coupled with intent — the latter of which concerns whether the accused acted on purpose (i.e., with knowledge and will, not by accident). Motive concerns not whether an act was done intentionally but why. Prosecutors are thus permitted to prove motive in most cases not because it is required but because it is relevant: Logically, if I can convince you why something was done, it helps convince you that it was in fact done, and intentionally so.

But the federal civil-rights laws are different. It is not enough for the government to establish interference — up to and including by murder — with someone’s enjoyment of federal rights. The prosecutor must prove motive beyond a reasonable doubt: The victim’s enjoyment of federal rights was interfered with “because of his race, color, religion or national origin.” Evidence of murder is not enough. Evidence that racial bias may have been some sort of vague factor is not enough. In connection with Arbery, the Justice Department can only prevail in its civil-rights prosecution if it is in a position to prove racism beyond a reasonable doubt.

If there existed proof of racism so powerful that it would support federal civil-rights convictions, it is inconceivable that the Georgia prosecutor would have omitted it from her case. She would not merely have proved it to the jury; she’d have done so with all the righteous indignation evidence of such despicable motivation deserves.

DA Dunikoski did not do that because the proof doesn’t exist. The Justice Department’s indictment is not law enforcement. It is a gesture of solidarity with the woke Left — a political narrative, not evidence.