I thought seating a jury would be an extraordinary task and would take longer than the actual trial. It played out pretty much that way. I thought none of the defendants would testify. I was wrong about that. The shotgun-wielding defendant’s testimony wasn’t bad, but he needed to hit a grand slam on demand. He didn’t, on his own, and the video evidence didn’t allow for it. (I have said this to several clients – “If you don’t testify, you will likely be convicted. If you testify and are not perfect, you will be convicted.”). I was fairly sure none of the defendants would leave the courtroom exonerated at the conclusion of the trial. That also happened. They were summarily remanded to custody by the judge. As convicted murderers.
I watched the entire trial daily. The State of Georgia’s “evidence” didn’t see overwhelming to me, and its legal arguments on several counts struck me as rather novel and overbearing. As I predicted however, there was little to support the factual or legal basis to assert “citizen’s arrest.” And with that, there went their weak defense. The lead prosecutor was often unintelligible and condescending. Sure, there are several appeal worthy issues. On Georgia law, the jury instructions, and overarching Constitutional principles. Even with some counts reversed, or a new trial, the defendants’ fates are pretty much sealed. As is sadly, that of Ahmaud Arbery. No matter what he was doing on their street that sunny Sunday. Of note: There remains a federal indictment the defendants must face in 2022.
Takeaways: Knowing the MAY beforehand, not after a defensive use of force or in the middle of a trial, is critical. Whether you are a gun-toting citizen, police, prosecutor, defense attorney, or judge. Never push the envelope, and never forget the SHOULD. The McMichael family will likely never again see two of their loved ones alive and outside prison walls. A simple-minded guy making a video (who had good reason to think he would be a state’s witness) left the courtroom in shock, to a holding cell. Likely to spend decades in prison. Because he gave ill-advised interviews to law enforcement. Also of note: If you think use of force “expert” testimony will be admitted and exonerate your use of deadly force, there is significant precedent in many states that says otherwise.
Kudos to the defense attorneys. Their devotion to their clients and the noble process was the only feel-good thing of the entire case.