Attorneys for the three Georgia men accused of murdering Ahmaud Arbery want all recordings of phone calls the suspects had in jail excluded from the upcoming trial, one of multiple requests under consideration at a pre-trial hearing Thursday.
In one of the phone calls cited in court, ex-cop Gregory McMichael was heard telling his brother that "no good deed goes unpunished," an apparent reference to their arrest over Arbery's death last year. The exact context of that conversation was not clear, but the suspect's attorney told the judge that prosecutors could use such phone calls to mislead the jury, telling them, for instance, that the "good deed" was the killing of Arbery.
"It's not what Mr. McMichael meant," Hogue said. "He meant patrolling his neighborhood and trying to capture someone suspected of crimes in the neighborhood as the good deed, and being punished for it was him being charged with murder."
McMichael, 61, his son Travis, 35, and their neighbor William "Roddie" Bryan, 61, told police they were trying to carry out a citizen's arrest when they chased and ambushed Arbery on a residential road outside Brunswick on Feb. 23, 2020. The younger McMichael claims he shot the 25-year-old in self-defense during a struggle with the victim.
© Lewis M. LevineIn this image from video, Gregory McMichael, second from right, is led by security officers from the Glynn County Courthouse in Brunswick, Ga., Wednesday, May 12, 2021. A Georgia judge will continue hearing legal motions Thursday in the murder case of three men facing a fall trial in the slaying of Ahmaud Arbery, a Black man who was chased and shot after being spotted running in the defendants' neighborhood.
In this image from video, Gregory McMichael, second from right, is led by security officers from the Glynn County Courthouse in Brunswick, Ga., Wednesday, May 12, 2021. A Georgia judge will continue hearing legal motions Thursday in the murder case of three men facing a fall trial in the slaying of Ahmaud Arbery, a Black man who was chased and shot after being spotted running in the defendants' neighborhood. (Lewis M. Levine/)
The fatal shooting was partially caught on Bryan's cellphone video, which leaked on social media two months later and led to the murder charges against them. The case sparked widespread outrage and accusations of racism as it involved three white men killing an unarmed Black man who appeared to be jogging in their neighborhood.
Arbery was seen at a house under construction moments before his death, but there was no evidence he stole anything from the property or that the defendants knew he had been there that day.
Superior Court Judge Timothy Walmsley, who is presiding over the case, did not immediately rule on the defense's request to exclude the suspects' 1,500 recorded jail calls or any other key motions discussed in the two-day hearing that began Wednesday. Prosecutors noted that all inmates are informed that their phone conversations are recorded before each call and should have no expectation of privacy.
"The Defendants are trying to elevate jail calls, an optional courtesy and convenience offered to incarcerated defendants, into something protected by the Constitution, such as their person, houses, papers, and effects," prosecutors wrote in a court filing.
Walmsley is also weighing whether to allow evidence of Arbery's criminal record and mental health issues at the trial.
An attorney representing Travis McMichael said he wants the jury to hear about Arbery's run-ins with the police because they show a "pattern" of attempted burglaries and aggressive behavior. The attorney, Jason Sheffield, asked the court to allow evidence of 10 incidents involving Arbery over the years.
Arbery, who was probation at the time of his death, pleaded guilty to carrying a firearm on a high school campus in 2013 and stealing a TV from a Walmart store in 2017.
© Provided by New York Daily NewsIn this image made from video, from left, father and son, Gregory and Travis McMichael, accused in the shooting death of Ahmaud Arbery in Georgia on Feb. 2020, listen via closed circuit tv in the Glynn County Detention center in Brunswick, Ga., on Thursday, Nov. 12, as lawyers argue for bond to be set at the Glynn County courthouse. The McMichaels chased and fatally shot Ahmaud Arbery, a 25-year-old Black man, after they spotted him running in their neighborhood just outside the port city of Brunswick.
In this image made from video, from left, father and son, Gregory and Travis McMichael, accused in the shooting death of Ahmaud Arbery in Georgia on Feb. 2020, listen via closed circuit tv in the Glynn County Detention center in Brunswick, Ga., on Thursday, Nov. 12, as lawyers argue for bond to be set at the Glynn County courthouse. The McMichaels chased and fatally shot Ahmaud Arbery, a 25-year-old Black man, after they spotted him running in their neighborhood just outside the port city of Brunswick. (Lewis Levine/)
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Prosecutor Linda Dunikoski said the defense is trying to smear Arbery's character and that his past has nothing to do with the fatal shooting last year as the suspects didn't even know him prior to the killing.
S. Lee Merritt, a civil rights attorney representing the Arbery family, said the accused killers are trying "to remind America that Ahmaud was black and black means criminal and criminal means unworthy to live."
"Watching this hearing one can be confused about who is on trial," Merritt said in an Instagram post featuring a series of photos of the suspects walking out of the Glynn County courthouse.
"These are the criminals," he wrote. "At trial they get to wear suits and spectacles. They are afforded due process and the right to make as many absurd arguments about the relevance of Ahmaud's past as they like but the fact remains they are the criminals."
The defense team also wants the court to allow Arbery's mental health records to be shared with the jury. The records include a 2018 diagnosis of schizoaffective disorder, one of the attorneys said, though prosecutors have questioned the quality of the diagnosis and its relevance to the case.
© Provided by New York Daily NewsIn this Feb. 23, 2020 image taken from Glynn, Ga., County Police body camera video, authorities, rear, stand over the covered body of Ahmaud Arbery, a 25-year-old Black man, who was shot and killed while while running in a neighborhood outside the port city of Brunswick, Ga. Father and son Gregory and Travis McMichael were arrested on murder charges in May, more than two months after the incident. A third man, William "Roddie" Bryan Jr., who shot cellphone video of the incident is charged with murder for joining the chase.
In this Feb. 23, 2020 image taken from Glynn, Ga., County Police body camera video, authorities, rear, stand over the covered body of Ahmaud Arbery, a 25-year-old Black man, who was shot and killed while while running in a neighborhood outside the port city of Brunswick, Ga. Father and son Gregory and Travis McMichael were arrested on murder charges in May, more than two months after the incident. A third man, William "Roddie" Bryan Jr., who shot cellphone video of the incident is charged with murder for joining the chase.
Walmsley asked the defense to submit the records it wants to use so he could consider them over the next few weeks. He also said he would seal them so they're not publicly available.
Prosecutors, meanwhile, want the court to allow evidence of the defendants' own past, including online communications showing Travis McMichael using racist slurs at least twice.
The three men are charged with malice murder, felony murder, aggravated assault, false imprisonment and criminal attempt to commit false imprisonment. They also face a federal indictment charging them with hate crimes and attempted kidnapping.
The state trial is scheduled to begin Oct. 18.