On Wednesday, attorneys for Greg and Travis McMichael, two of the three men involved in the death of Ahmaud Arbery, asked a pre-trial judge to allow Arbery’s past arrests into evidence because apparently the victim’s past is supposed to shed some kind of light on why he fought back against his
attackers lynchers pursuers instead of heeding the non-existent authority of armed white men who chased him through the Glynn County, Ga., neighborhood. On Thursday, those same defense attorneys asked that same judge to exclude thousands of hours of jailhouse phone calls made by the McMichaels because apparently what’s good for the victim-blamed goose is not good for the white supremacist gander.
According to the Atlanta Journal-Constitution, in one phone call, Greg is reportedly heard asking his brother, “You’ve heard the saying that no good deed goes unpunished?” in reference to the incident that left Arbery fatally shot, which he appeared to call “a shining example.” Their attorneys—who think it’s of the utmost importance that jurors hear about every time Arbery got angry at police officers—argued that the elder McMichael’s words might be taken out of context.
Attorney Franklin Hogue, who represents Greg McMichael, said his client’s comment about good deeds going unpunished would be taken out of context by prosecutors.
“The state believes he is saying the good deed was killing Ahmaud Arbery, but that is not what he meant,” Hogue said. “He meant the good deed was patrolling his neighborhood and the punishment is him now being in jail charged with his death.”
Hogue argued that admitting the phone calls into evidence would violate his client’s right to due process.
“It’s not illegal activity to talk about your case with a family member,” he said.
Except, neither Greg nor Travis McMichael is in jail for “patrolling his neighborhood.” They’re in jail because a man ended up dead after they chased him around and blocked him several times from leaving the area, according to Georgia Bureau of Investigation Assistant Special Agent Richard Dial.
“I believe Mr. Arbery was being pursued, and he ran till he couldn’t run anymore, and it was turn his back to a man with a shotgun or fight with his bare hands against the man with the shotgun. He chose to fight,” Dial testified last June. “I believe Mr. Arbery’s decision was to just try to get away, and when he felt like he could not escape, he chose to fight.”
The McMichaels’ defense team would have jurors hear that Arbery’s choosing to fight was a sign of his alleged mental illness.
More from AJC:
Attorneys also resumed their debate over admitting Arbery’s mental health records. Superior Court Judge Timothy Walmsley says he will review them under seal to determine whether they should be used during the trial.
Attorney Jason Sheffield, representing Travis McMichael, argued Wednesday that Arbery’s mental illness “caused him to do and say and behave in very particularized ways.” Because of that, Arbery was the actual aggressor, Sheffield said, even though the McMichaels were armed and Arbery was not.
Prosecutor Linda Dunikoski questioned the quality of Arbery’s diagnosis, noting it was made by a registered nurse following a two-hour assessment.
Arbery should have an expectation of privacy about those records, even in death, Dunikoski said.
The prosecution also argued that jail phone calls are a privilege, not a right and that the McMichaels’ calls shouldn’t be shielded from jurors.
It’s unclear when there will be a ruling on whether the phone calls or Arbery’s mental health diagnosis will be heard by jurors. As we previously reported, the judge allowed both the defense and prosecution 20 to 40 days to present written arguments regarding jurors hearing of Arbery’s past arrests.