Prosecutors elicited a series of statements on Thursday during their cross-examination of Travis McMichael that could hurt his defense. McMichael is one of three white men on trial for the 2020 killing of 25-year-old Ahmaud Arbery.
McMichael, his father Greg and their neighbor William “Roddie” Bryan are all facing counts of felony murder in relation to the killing of Arbery, who was Black, on Feb. 23, 2020 in Brunswick, Ga.
Prosecutor Lisa Dunikoski grilled McMichael in a multi-hour cross-examination on Thursday, scrutinizing two lines of his defense: That the McMichaels and Bryan performed a lawful citizen’s arrest and that the younger McMichael acted in self-defense when he fatally shot Arbery at close range with his shotgun.
Dunikoski began by questioning McMichael, a former Coast Guard officer, about his definition of probable cause, which under a now-repealed Georgia law is needed to perform a citizen’s arrest.
“If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion,” the old statute read.
The prosecution seemed to be making the case that McMichael’s stated reasons for probable cause were not valid because he did not see Arbery commit a felony, even if he had seen Arbery trespass. Trespassing in Georgia is a misdemeanor.
In the face of questioning by Dunikowksi, McMichael said that his belief that Arbery had stolen something from an under-construction property down the road, which would be a felony, was due to the fact that Arbery had been seen on security cameras entering the house multiple times before.
Chris Slobogin, director of Vanderbilt University’s criminal justice program, said the statements were important because they suggested that McMichael had no evidence to believe Arbery had committed a felony.
He noted that the defunct law the defense is using for its probable cause argument stipulates that the specific crime committed to warrant the citizen's arrest must rise to the level of a felony.
“Just because he may have committed burglary before, doesn't mean he committed burglary this time. There has to be some reason to believe he's committed burglary this time,” Slobogin said.
“You need some evidence that he took something or did something beyond just go on someone else's property and then leave that property,” he added.
The defense has argued that Arbery was trespassing, and earlier in the trial Glynn County police officer Robert Rash had testified that he had planned to give Arbery a trespassing warning.
McMichael testified that he had personally encountered Arbery — though he didn’t know it was him — coming out of the building several days before Feb. 23.
Dunikoski also chipped away at the defense’s argument that the younger McMichael shot Arbery in self-defense.
The prosecutor bluntly asked McMichael if Arbery ever threatened him or brandished a weapon.
“He did not threaten me verbally,” McMichael told Dunikoski, adding that Arbery never drew a weapon on him.
“He just ran?” Dunikoski questioned further.
“Yes, he was just running,” McMichael responded.
The admission from McMichael that Arbery never threatened him could sink the defense’s self-defense rhetoric, Slobogin said.
“You can't argue self defense if you're the one that's started the series of events that led to the use of deadly force. If you provoked the person you eventually kill to attack you, you cannot assert self-defense in response to that attack,” he explained.
McMichael testified that on Feb. 23, one of his neighbors signaled to him something had happened down the road and that his father was convinced the same person who he had previously encountered coming out of the under-construction property had run down the street.
This, McMichael said, prompted him to grab his shotgun, get in his truck with his dad and pull up beside Arbery, who was jogging at the time.
When asked by Dunikoski about the last moments before Arbery was killed, he replied: “I was thinking that he was a threat, that he might go after myself, my father or the truck.”
Dunikoski countered: “So you’re telling this jury that a man who has spent five minutes running away from you, you’re now thinking is somehow going to want to continue to engage with you — someone with a shotgun — and your father — a man who's just said, ‘stop or I’ll blow your f-----g head off,’ by trying to get in their truck?”
“That’s what it shows,” McMichael answered.
Additionally, he told police that Arbery, who was running in the direction of the McMichaels after being caught between their truck and Bryan’s vehicle, didn’t stop after he had pointed his shotgun at him and eventually grabbed at the firearm.
But, when asked by Dunikoski, he responded that he “honestly cannot remember,” if Arbery had hold of the gun or not.
Putting a defendant on the witness stand is always seen as risky, and Slobogin said the apparent inconsistencies in McMichael’s testimony underscores the potential pitfalls.
“If [the jury] is paying attention, it’s going to notice inconsistencies in testimony and that could come back to haunt the defense,” Slobogin said.