ATLANTA — The murder of George Floyd has catalyzed a period of national soul-searching about race and racism that has touched nearly every aspect of American life. But in a number of high-profile trials since then – including in the murder of Mr Floyd and the murder of Ahmaud Arbery – prosecutors have carefully avoided bringing racism itself to the fore.
That changes starting this week, as federal prosecutors attempt to prove that the white men who killed Mr. Arbery, a 25-year-old black man, committed a federal hate crime when they pursued and killed him “because of of Arbery’s race and color,” as their indictment states.
In the upcoming trial, prosecutors are almost certain to present gruesome evidence, culled from seized cellphones and other sources, seeking to prove that the three Georgia residents – 36-year-old Travis McMichael, his father, Gregory McMichael, 66, and their neighbor William Bryan, 52 – harbored racist views before the afternoon in February 2020 when they sued Mr Arbery.
In a potential preview of forthcoming evidence, an FBI agent testified in a January 31 hearing that Travis McMichael’s text message history and social media posts include instances of him calling black people “monkeys.” ” and “savage”, and contain “evidence where the defendant expressed a desire that crimes be committed against African Americans.
But racism alone is not a crime; experts say prosecutors must convince a jury that this motivated the men to sue and harm Mr. Arbery. The defendants said they sued Mr. Arbery because they suspected him of burglaries in their neighborhood.
As a result, the lawsuit presents a test for President Biden’s Justice Department and for Attorney General Merrick B. Garland, who has made prosecuting hate crimes one of his top priorities.
“This is going to be a tough case to prove,” said Deval L. Patrick, the former Massachusetts governor who headed the Justice Department’s civil rights division under President Bill Clinton. “That doesn’t mean the deal isn’t there to be done.”
In state court, all three defendants have already been convicted of murder and sentenced to life in prison, with only Mr. Bryan’s sentence including the possibility of parole. All three could each face a maximum sentence of life in prison if convicted at federal trial.
On a practical level, a conviction in federal court would ensure that the defendants would receive significant prison sentences even if their state murder convictions were overturned or their sentences reduced on appeal. On a symbolic level, the federal case gives prosecutors an opportunity to demonstrate the Department of Justice’s commitment to combating hate crimes.
But as prosecutors present the jury with explicit expressions of bigotry, the trial may also prove to be a difficult time for a nation that remains bitterly torn about the extent to which its people should openly confront the realities of American racism, past and present.
Many welcome this confrontation, regardless of the decision of the jury. In Brunswick, the coastal Georgia town near the neighborhood where Mr. Arbery was killed, Pastor Darren West saw the original murder trial not only as a heinous crime, but also as a story of the daily inequalities and injustices suffered by African Americans in his community. . During the murder trial, prosecutors made what appeared to be a strategic decision to largely avoid race issues as they presented their case to an almost all-white jury.
Now Mr. West is preparing for a new trial that will expose the harsh and flippant language of racism. It will be both uncomfortable and necessary, he said.
“Race and racism have always been part of this case. It was just unsaid. Now race or racism will actually be judged,” said Mr. West, who has led marches and rallies to protest Mr. Arbery’s death. “I think what we’ll hear is the kind of stuff that this nation has been running away from or covering up for a very long time.”
The three men were charged with hate crimes and attempted kidnapping in an indictment before a federal grand jury in April 2021, nearly a year after they were arrested for murder by the Georgia Bureau of Investigation. . The McMichaels are also charged with one count each of having or discharging a firearm in a violent crime.
A jury will decide their fate at a time of increasing hate-fueled violence and intimidation in the United States. According to the Federal Bureau of Investigation, 8,263 hate crimes were reported in 2020, the highest level since 2001.
A forthcoming study from the Center for the Study of Hate and Extremism at California State University in San Bernardino notes that the number of anti-Black hate crimes in 2020 was the highest recorded since 2008, the year of the presidential victory of Barak Obama.
Garland pledged to refine the federal response, including improving incident reporting and law enforcement training.
But hate crimes are particularly difficult to prove. Between 2005 and 2019, the Justice Department prosecuted just 17% of suspected hate crime cases for prosecution, according to a July 2021 report.
When he decides to prosecute, cases usually end with defendants pleading guilty. In the Arbery case, a judge in late January rejected a proposed plea deal between federal prosecutors and the McMichaels after members of Mr. Arbery’s family objected.
The federal government has a number of laws it can use to charge someone with a hate crime. The Georgian defendants were charged under a 1960s law that prohibits the use of threats or violence to prevent people from engaging in activities such as voting, attending school, dining at a counter or, as in the case of Mr. Arbery, enjoying the use of a public highway, because of their “race, color, religion or national origin”.
Justice Department decisions on whether to bring hate crimes or other civil rights charges have become a common plot point in a number of infamous acts of violence.
After a group of Los Angeles Police Department officers involved in the 1991 beating of Rodney King, a black motorist, were acquitted by a California jury, sparking days of rioting, police officials Justice obtained civil rights indictments against the officers and obtained convictions against two of them.
Decades later, the Justice Department has declined to press civil rights charges against George Zimmerman, the Florida man who in 2012 fatally shot Trayvon Martin, a 17-year-old black boy.
Understanding the murder of Ahmaud Arbery
Shooting. On February 23, 2020, Ahmaud Arbery, a 25-year-old black man, was fatally shot after being chased by three white men while jogging near his home on the outskirts of Brunswick, Ga. The murder of Mr. Arbery was captured in a graphic video widely viewed by the public.
More recently, at a high-profile state trial last April, a jury found Derek Chauvin, the white former Minneapolis police officer, guilty of murder in the killing of George Floyd. In December, Mr. Chauvin pleaded guilty to federal charges of depriving Mr. Floyd of his civil rights by using unreasonable force against him.
But lawyers in Mr. Chauvin’s murder trial were cautious about race, as was the murder trial of the three Georgia men. In both trials, video footage of the violence perpetrated against black victims gave prosecutors a powerful tool to persuade jurors to reach guilty verdicts.
In Arbery’s case, it’s unclear whether federal prosecutors will be able to introduce one of the most explosive allegations of racism, which emerged during a preliminary hearing in the state’s case: a Mr. Bryan’s accusation that Travis McMichael used a racial slur shortly. after shooting Mr. Arbery.
Legal experts say that because Mr McMichael has a constitutional right to confront his accuser, the judge can only allow the accusation to air if Mr Bryan takes the stand. And because Mr. Bryan is also on trial, he could exercise his right not to testify. (Mr. McMichael’s lawyers dispute that he used the insult after the shooting.)
The proposed plea deals for the McMichaels amounted to admitting, on their part, that they had been racially motivated when they went after Mr. Arbery. But the details of their scuttled deals will not be admissible at trial.
A possible blueprint for the federal prosecutors’ case emerged during the January 31 plea bargain hearing. Tara M. Lyons, Assistant United States Attorney for the Southern District of Georgia, said Travis McMichael did not belong to any hate groups and did not “set up” to harm a black person on the day of murder. On the contrary, she said, “he had made assumptions about Ahmaud Arbery that he would not have made if Ahmaud Arbery had been white”.
The jury may have to decide whether these assumptions constitute sufficient evidence to prove a racial motive for the crime.
If that’s what the trial is all about, it can be difficult to secure convictions, said Arthur Ago, director of the criminal justice project at the Lawyers’ Committee for Civil Rights Under Law.
But regardless of the outcome, Ago said, the lawsuit will send a signal from the federal government: “If you have biases and you act on those biases in a way that might not be explicit, we will come after you. . Because it’s a hate crime.
