The agreement was in place and ready for approval. Travis McMichael and his father Greg would plead guilty to a hate crimes charge, admitting they chased down and killed Ahmaud Arbery because he was Black.
But U.S. District Judge Lisa Godbey Wood in Brunswick, after hearing emotional testimony Monday from Arbery’s family members who opposed the deal, rejected it.
The development surprised many who have been following the case. But lawyers who often appear in federal court said they can understand why Wood did what she did. The plea agreement reached between Justice Department lawyers and attorneys for the McMichaels gave the judge no leeway as to what sentence could be imposed in the hate crimes case.
“Judges in general appreciate plea agreements because they resolve cases,” Atlanta defense attorney Bruce Morris said. “By the same token, judges don’t like to have their hands tied on a particular sentence. So it’s not uncommon for a judge to reject a plea agreement that takes away their discretion.”
If Wood accepted the agreement, she would have had to sentence the McMichaels to 30 years in federal prison, to be served concurrently with their state murder sentences of life in prison without the possibility of parole. When their federal time expired, only then would they be transferred to the state prison system.
Wood gave the McMichaels until Friday to decide whether to continue with their guilty pleas to the hate crimes charge and let her decide their punishment. If they choose not to, they will stand trial, scheduled to begin with jury selection Monday.
And if the McMichaels go to trial, they will fight a hate crimes charge they were ready to plead guilty to.
“It certainly prejudices the McMichaels because the level of press coverage makes it virtually impossible for prospective jurors not to know they were admitting guilt,” Morris said.
If convicted at trial of the federal hate crimes, the McMichaels face possible life sentences. There is no parole in the federal system.
In the state court system, so-called binding plea agreements — with a set sentence already in place — are fairly common. But they are not so common in the federal system, which has sentencing guidelines and prosecutors recommending sentences to the court.
In announcing her decision, Wood said the McMichaels’ case was in a “relatively early stage” and for that reason she could not tell whether 30 years in prison was “the precise, fair sentence.”
“It could be more, it could be less, it could be that,” she said. “But given the unique circumstances of this case and my desire to hear from all concerned regarding sentencing before I pronounce sentence, I am not comfortable accepting the terms of the plea agreement.”
Arbery’s parents and two aunts said their family never agreed to a plea deal with prosecutors in the federal case. His mother, Wanda Cooper-Jones, said she was outraged because they hoped to see the McMichaels and neighbor William “Roddie” Bryan serve their life sentences in state prison, where conditions are tougher.
“Granting these men their preferred conditions of confinement will defeat me,” Cooper-Jones said. “It gives them one last chance to spit in my face after murdering my son.”
“Generally, defendants prefer the federal prison system than the state system,” said Atlanta lawyer BJay Pak, a former U.S. attorney in Atlanta. If the McMichaels are allowed to serve time in federal custody, he said, the Bureau of Prisons will put them in either a medium- or high-security prison, given the nature of their crimes.
Attorney Jason Sheffield, who represented Travis McMichael in the state case, expressed concerns that potential jury members in the upcoming federal hate crimes trial might know the 36-year-old and his father planned to plead guilty.
“I have never in my life seen so much influence over a proceeding by the family of the victim,” Sheffield said. “They certainly need to be informed about what’s going on, but ... whether or not to accept an agreement between the parties has always solely been the judge’s responsibility.”
“This case continues to redefine what justice may mean in the future for our country and other similarly seated defendants,” said Sheffield, who serves as president of the Georgia Association of Criminal Defense Lawyers.
Atlanta defense attorney Don Samuel said the majority of federal judges don’t like binding plea agreements.
“Most federal judges don’t like them at all,” he said. “In state court, these types of pleas happen all the time. When you enter into a negotiated plea and the judge doesn’t like it, you can withdraw it.”
Samuel said a victim’s family members aren’t merely spectators, and that they should have a say in court proceedings.
“The judge should listen to them, take their views into account,” Samuel said. “I can understand a judge rejecting a plea in a case like this. This probably is a better deal for the McMichaels. And had there been no federal case at all, they’d have been worse off.”
In court, prosecutors played Bryan’s cellphone video of Arbery collapsing in the street after being struck with shotgun blasts at the end of the five-minute chase.
“Ahmaud didn’t get an option of a plea,” Cooper-Jones said. “Ahmaud was hunted down. My son was killed.”
Arbery’s incensed aunt, Diane Jackson, tore into her nephew’s killers from the podium.
“Y’all didn’t even think to help Ahmaud when he laid in the street bleeding to death. Y’all just walked away,” Jackson shouted.
The judge reminded her she was speaking into a microphone and that everyone could hear her clearly.
“I’m sorry, I’m angry,” Jackson responded. “Ahmaud laid in the street, bleeding out. I don’t know what he was saying. He was probably asking for help or praying to God ... and they turned their backs ... and left him laying there.”
Most of the prospective jurors in the state murder case were already familiar with the facts of the high-profile killing, and many had already formed opinions about the defendants. That led to a grueling jury selection process that lasted nearly three weeks.
“There’s been a tremendous amount of publicity about the case across the country, and certainly in Georgia people know about the first case,” said former DeKalb County District Attorney Jeff Brickman, who has also worked as a state and federal prosecutor.
Brickman said he would be shocked if some of the prospective jurors in the upcoming hate crimes case haven’t already formed opinions about Monday’s rejected plea deal, making it even tougher to seat an impartial jury when the federal trial begins next week.
“You’ve got a number of potential jurors who have already formed an opinion about the case, even if they just formed an opinion based on the first case,” he said. “Now what you’ve got are people who read that the defendants have expressed an interest in pleading guilty to the offenses. Imagine being a lawyer in that case trying to get a fair and impartial jury.”
In a statement issued after Monday’s hearing, Assistant U.S. Attorney General Kristen Clarke said prosecutors consulted with the attorneys for Arbery’s family before extending the plea deal to the McMichaels.
“The Justice Department entered the plea agreement only after the victims’ attorneys informed me that the family was not opposed to it,” Clarke said.
Arbery’s family members, however, said they never consented to any deal that would allow the McMichaels to serve their time in federal prison. “They offered us the same plea that they offered prior to this federal case,” said attorney Lee Merritt, who represents Arbery’s mother. “The family made clear that they were not interested.”
After Monday’s hearing, Cooper-Jones told reporters she was relieved the judge rejected the plea agreement.
“I think the judge listened to the family members,” she said. “I’m looking forward to the federal trial. I still want them to go to a state penitentiary.”
