On Feb. 23, 2020, Ahmaud Arbery, a 25-year-old Black man, went out for a jog before he was chased and then killed by three white men. The men would claim they thought Arbery was robbing a nearby property and then acted in self-defense against him. Nearly one year later, those three men were convicted of murder charges. Arbery’s killing came amid a heightened national reckoning on race and racial justice in the wake of several killings of unarmed Black Americans.
The guilty verdicts in the case of Ahmaud Arbery came nearly one week after the acquittal of Kyle Rittenhouse for the shooting and killing two men and injuring a third after racial justice protests following the shooting of Jacob Blake in Kenosha, Wisconsin. Both the Rittenhouse and Arbery trials became touchpoints for many Americans who view the criminal justice system as biased against people of color.
We spoke with legal and racial justice experts about what we can take away from the Arbery case amid this larger landscape of the intersection of race and the U.S. justice system.
What is a key takeaway from this case? What have we learned from this case?
HANK KLIBANOFF, Emory University professor and host of the civil rights cold cases podcast “Buried Truths.”:
“This case was just so shockingly like the cases that we do out of the 1940s and the 1950s — when we look back at these unpunished, racially motivated killings — and not just in the way the men chased and hunted down Ahmaud Arbery and the way they killed him. But the way the criminal justice system manhandled the case after that, and tried to turn the assailants free and say they were within their rights to try to do what they did.”
JARRETT ADAMS, Author and civil and defense lawyer :
“We’ve learned how difficult it is to hold people accountable in our justice system when they aren’t the color of Ahmaud Arbery and myself. I don’t think people should miss this fact. We had a trial. We had a verdict today. But, look at how much it took for us to get there. There was an opportunity for this case to have never been brought up at all had it not been for the footage that we’ve seen of the murder that was committed of Mr. Arbery.”
AYESHA HARDAWAY, Associate Professor of Law Case Western Reserve University School of Law:
“I think we should be under no delusion that racial profiling results in the death of Black and brown people in this country every day, and that the dangers of these citizen arrest laws empower racial profiling and vigilantism.
I think it is important for us to not be tempted to extrapolate too much about where we are as a country from one case to the next. The patchwork system that is our criminal legal system, with various states having their own specific set of laws, as well as sort of community standards and expectations — what may be appalling in one state could be completely acceptable in another.”
And I think as long as that’s the reality that we’re dealing with, it’s hard to extrapolate out, or have our finger on the pulse of where we are as a nation. And also where we think we’ve made strides in terms of securing racial justice it can quickly be made apparent that we haven’t.”
What does this case tell us about racial equity in the justice system?
HANK KLIBANOFF: “Racial equity in the justice system is still very hard to get. Does this verdict today make me feel better? Sure, it does. And it looks to have been a thoughtful decision. And you wonder how many of them saw the video [of Arbery being killed] months ago and immediately had formed some idea that this just is not right and just carried that into the courtroom and found no reason from anything the defense said to turn away from that idea. To me it’s hopeful, it was hopeful.”
JARRETT ADAMS: “This case screams loudly the need to diversify the legal field right now. You have rates of prosecutors being 90 percent white. You have criminal defendants, who make up the criminal justice system being predominantly Black. And if those numbers don’t spell it out enough, then it should definitely be spelled out with some of the cases that we’re seeing currently in the news. And I think that people have to understand that this isn’t just about equality in terms of the person’s complexion. This is about equality in terms of fairness, in terms of experience, in terms of people having the opportunity to be around different people with different makeups and different backgrounds. That’s the only way to get it right. You know, I’ve been in several cases where a judge will make a decision based off of looking at a defendant and being able to say, ‘You know, I know what it’s like to be a kid like you.’ That plays a part in our justice system.”
KIM TAYLOR-THOMPSON: “That when someone, three men in this instance, take the law into their hands — on that occasion, we will stop them and we will hold them accountable for their actions. So I think the takeaway is that we can do this. I think that the lingering question is, will we do it? Going forward, what lessons have we learned from this, and will we do more to address the underlying racism that clearly motivated these three men?”
AYESHA HARDAWAY: “The patchwork nature of our criminal legal system from one state to the next really makes it difficult to assess on a national level right where we are when you have the Wisconsin verdict come out just days before this verdict. I think looking at those two together should help us understand that as much as many may feel like justice has been done in one case, others will definitely feel like it wasn’t enough in the one before.”
How much did race play a role in both the events leading up to the killing of Arbery and how the trial was conducted? How was this claim of self-defense different in this case versus that of Rittenhouse?
HANK KLIBANOFF: “I grew up in the south. We were racially conditioned to view Black people as inferior. I was born in 1949, five years before Brown v. Board of Education. I think that racial conditioning is still there, by the way. Not nearly as strongly — I think a lot of people have had to work hard to overcome it, but I do believe it’s still there.”
JARRETT ADAMS: “We know for a fact that this was about race. We know for a fact that the reason that the men chased after Mr. Arbery was because of his race. If it would have been a white man jogging through, they probably would have waved and offered a cup of lemonade. But because it was Mr. Arbery, he just had to be [engaged in] criminal activity. But, this is a historical depiction that our society is dealing with that needs to come down. We portray black men as being criminal and a threat for so long, that we’ve embedded it into the fabric of our society. We have to go through and thread by thread, take away these ridiculous preconceived notions that if a Black man is in a certain spot, or if he looks a certain way, he has to be doing something criminal.”
“When an African American in this country is a defendant, you do not have the presumption of innocence. You go in with the shadow of guilt over you. And that’s not the way that the Constitution is supposed to afford its citizens its due process. And that’s the difference. That’s the difference in these cases. You know, you look at the case of Rittenhouse and you see how every precaution was given to make sure that he quote, unquote, had a fair trial. That doesn’t happen with African American defendants. And I think that if people, no matter what side, they’re on can say, ‘man, that was a fair trial,’ then why can’t we duplicate that for African Americans across this country?”
KIM TAYLOR-THOMPSON: “I think race definitely played a role in the killing of Arbery. The actions by these three white men once again demonstrate that there is deep, deep seated racial bias that exists in this country and that this country not only enables, but nurtures it. This was a modern day lynching. A young man, a young Black man, was presumed dangerous and guilty for doing nothing beyond running in a predominantly white neighborhood. And these three men believed that they could, and should, hunt him down. They believed that they could do that. They believed that they were justified in doing that, and they believed that they would get away with it and they almost did.”
AYESHA HARDAWAY: “For all of our all of American history, there have been government-sanctioned laws and also practices and customs … that have made it clear that Black people are not welcomed in certain spaces. When a Black person steps outside of the acceptable area or where they’re expected to be, their life is in danger — and I think that obviously is what the jury believes happened to Mr Arbery.”
“There were explicit efforts by the defense to ‘other’ Black people in this space, and even in the courtroom with Bryan’s lawyer. Making an argument, time and time again about the presence of Black pastors, you see a constant thread from the day Mr. Arbery was killed up until that last motion for mistrial. But I think the prosecutor did a great job of saying this is supposed to be America. This is supposed to be a free country. Just because someone doesn’t want to answer your questions does not give you the right to kill them.”
What about the trial and verdict has surprised you? What about the makeup of the jurors?
HANK KLIBANOFF: “Whoever those white jurors were, I think they showed some courage, to do what they did, because they have to know that’s going to be considered critically by many people.”
KIM TAYLOR-THOMPSON: “The verdict didn’t surprise me. I think that this was a case where the video actually explained it all and it was open and shut … it seemed like people really did pay attention to what happened in that video. It was a clear cut case of murder. So I was pleased to see that the jury followed the law, applied the law to the facts and did the right thing. I am not surprised that a jury that consists largely of white people with one Black person could come to the right conclusion. I am actually pleased to see that happened.”
AYESHA HARDAWAY: “Both him [Bryan] and Greg McMichael, not being found guilty of of malice murder wasn’t a surprise to me. The jury was obviously convinced that Travis McMichael had a greater level of culpability because he pulled the trigger three times on his shotgun. So that all makes sense to me or seems to align with the evidence.”
This is the second high profile murder case where the defense made a claim of self-defense in the last month, the other being the trial of Kyle Rittenhouse. How were these cases similar or different?
JARRETT ADAMS: “Every case is different and it is different, according to the facts. So the facts in the Arbery’s case are totally different from the facts that were in the Rittenhouse case. Rittenhouse went to a protest armed with a gun. He went to a conflict with the gun, where he knows there’s a conflict. I’ve never in my life seen the self-defense statute in Wisconsin be read the way it was [in the Rittenhouse case]. I practiced law in the state of Wisconsin. I’ve never seen that before. And I guess the only difference is my clients are people of color. [With Arbery] Here is a case of an unarmed man being chased in a vehicle by three white men armed with a shotgun, and they’re going to argue self-defense? I think that it’s ridiculous to even make that argument.”
HANK KLIBANOFF: “If you go back to a time when juries were all white, and you go back to a time when, we were all racially conditioned to believe that Black people were inferior and criminal, there was a predisposition among white people to believe that any alibi of self -defense by a white person was probably true.”
KIM TAYLOR-THOMPSON: “I think that one of the differences in this case from the Rittenhouse case was that the prosecutors really understood how to argue that this was not a case of self-defense in the McMichaels case. The prosecutor, in the case of the McMichaels, understood that, and made the argument that you cannot claim self-defense when you are the initial aggressor. The lawyers in the Rittenhouse case simply didn’t do it. I also think that you had more sympathy [for Rittenhouse]. You had jurors that wanted to sympathize with a young person in the Rittenhouse case. And although I have represented young clients before, they were typically men of color who do not get the presumption of innocence that Rittenhouse got. These jurors could see their sons, their nephews, or themselves in Rittenhouse and could relate. The prosecutors in that case really did need to unpack that and help the jury understand that what he did was not justified, and they simply didn’t do that.”
AYESHA HARDAWAY: “The obvious is that we’re dealing with individuals of the same race and gender who styled themselves as vigilantes, who have deemed it their responsibility to protect the property of others –not even their own property. I think those sort of high level realities of the fact patterns in both of these cases are really striking.”
“I also think that it’s a bit different. What we don’t talk a lot about is the fact that, the race of the three people, the two killed and the one injured, in Kenosha, that they were white people. That verdict could be seen as sending a message to white people who would style themselves as allies or in support of a change in police practices in this country.”
“The jurists in these cases were very different. I think the judges had different postures. One wanted to be the center of attention and the other was more than willing to take the role and the responsibility of being a referee but was not using the opportunity to curry an audience with the jurors.”
“While the statutes in Wisconsin and Georgia really are not that different, we did see different fact patterns in terms of what it means when an individual is unarmed and being chased and cornered as opposed to an individual in an open carry space causing alarm. [This is]calling into question what we’re going to do as a nation around sensible gun legislation, because what we saw in Wisconsin really points to how dangerous it can be for everyone involved when individuals are allowed to walk around with semi automatic rifles.”
What role do you think video played in this outcome?
HANK KLIBANOFF: “We would never have been in court if the video hadn’t come out, just never.”
KIM TAYLOR-THOMPSON: “Had it not been for the video going viral, there would have been no charges because the local D.A. concluded that Arbery had, I believe his quote was ‘an aggressive nature’ and that the McMichaels were justified in shooting him.”
“We had the local D.A. not willing to even charge these three men. And once the video went viral and people actually saw what happened, there was considerable pressure to bring charges and to go outside of the local D.A., [To] actually bring in an outside prosecutor to bring a fresh perspective and perhaps a more objective view of what was going on. Had it not been for the video, I’m not sure we would be here. And these three men would have gotten away with what was an unjustified, intentional murder.”
AYESHA HARDAWAY: “I think the video in this case was used to drive home the reality of Mr. Arbery literally being chased and cornered before he was killed. There was no denying that he was doing everything he could to try to avoid interacting with them. And the prosecutor said it went on for five minutes. To be able to sort of extrapolate that reality through … what those five minutes of his life must have looked like, had to have resonated very deeply with the jury that this wasn’t about Travis McMichael needing to defend himself or his father. That this was about them taking his life, unjustifiably.”