Can the state be allowed to put in evidence of racism involving the three men charged with the murder of Ahmaud Arbery? Can it keep out bad character evidence of Arbery, the 25-year-old Black man killed Feb. 23 in coastal Georgia?
And what about the vile racist epithet that defendant Travis McMichael allegedly said after he fired three shotgun blasts into Arbery? Can that come into evidence at trial?
The fifth episode of The Atlanta Journal-Constitution’s Breakdown podcast considers a number of possible scenarios involving those questions. They all could have a great bearing on the outcome of the trial.
McMichael, 34, is charged with malice murder and other counts. So is his father, 64-year-old Greg McMichael, a former District Attorney’s Office investigator, and 50-year-old Roddie Bryan, who joined in the chase of Arbery as he ran through the Satilla Shores neighborhood just outside of Brunswick.
During a preliminary hearing, GBI agent Richard Dial testified that Bryan told investigators during an interview that Travis McMichael, as he stood over the dying Arbery on the pavement, uttered, “F---ing n-word.” It was the most explosive moment of the hours-long hearing.
But this testimony wasn’t just hearsay - what the investigator said Bryan said. It was double hearsay—what the investigator heard from Bryan, who had told him what he allegedly heard McMichael say.
In interviews, Atlanta defense attorney Don Samuel and Gwinnett County District Attorney Danny Porter said if Bryan doesn’t take the stand and testify in his defense, a jury may never hear the highly incriminating and offensive statement.
“I don’t get it,” Samuel said. “I don’t see how the state gets that into evidence.”
Meanwhile, the state of Georgia is about to resume jury trials during the coronavirus pandemic. And the judge presiding over the Arbery case has scheduled bond hearings for the McMichaels.
