Credit: Pool photo
What are the charges, and what instructions did jury get in trial over Arbery's death?
Jurors in the trial of the three men charged in the killing of Ahmaud Arbery must decide whether one or all of them is guilty of murder. A conviction could send them to prison for life.
Before the jurors retired to the jury room to begin their deliberations, the judge read them specific instructions on the law that's applicable to this case.
The jury instructions, also called the jury charge, were carefully put together with input from the lawyers for the defense and prosecution, each side trying to make sure instructions on the parts of the law that support its case were included. The disproportionately white jury began deliberating Tuesday after hearing 10 days of testimony.
After seeing Arbery running in their neighborhood near the Georgia port city of Brunswick in February 2020, father and son Greg and Travis McMichael armed themselves, jumped in a pickup truck and pursued the 25-year-old Black man. A neighbor, William "Roddie" Bryan, joined the pursuit and recorded video on his cellphone video, capturing the moments when Travis McMichael shot Arbery with a shotgun. All three defendants are white.
WHERE DO THE JURY INSTRUCTIONS COME FROM?
Georgia court rules provide instructions that address most situations and serve as a template that the lawyers and judge work from to create a set of jury instructions tailored to a particular case.
The lawyers on each side are expected to have their proposed jury instructions ready on the first day of trial, and then they come together with the judge after trial testimony is done to determine the exact wording of the instructions in the case.
"It's the most important part of the trial," said Andrew Fleischman, an appellate lawyer in Atlanta who's not involved in this case. "Lawyers don't give it enough attention, and the public doesn't, but that is where we hammer out what the law is and what the actual elements of the crime are going to be."
WHAT GOES INTO THE JURY INSTRUCTIONS?
The instructions include the law that applies to the facts of the case as well as the definitions of relevant legal terms and concepts.
During the course of the trial, lawyers on each side try to admit evidence that supports their theory of the case and the law they believe is applicable. There must be at least some evidence admitted during the trial that supports the applicability of a given law for it to be included in the jury instructions.
During a charge conference Friday, the lawyers worked with Superior Court Judge Timothy Walmsley to come up with the final instructions before closing arguments were delivered.
"By the time the lawyers are giving their closings, they know what the instructions are going to be," Fleischman said. "That's a super important part of a good close, telling the jury what the instructions mean in relation to this case."
HOW DOES THE JURY RECEIVE THE INSTRUCTIONS?
After the closing arguments in the case are delivered, the judge charges the jury by reading the instructions out loud.
The instructions in this case were lengthy; it took Walmsley 42 minutes to read them to the jurors. It is up to the judge to decide whether to give the jurors a hard copy of the instructions to consult while they're deliberating. Walmsley did give the jurors a copy.
WHAT WERE SOME OF THE KEY INSTRUCTIONS IN THIS CASE?
Walmsley defined each of the charges: malice murder, felony murder, aggravated assault, false imprisonment and criminal attempt to commit false imprisonment.
He also explained that for Bryan, the jury may consider lesser offenses — simple assault, reckless conduct and reckless driving — in place of an aggravated assault charge.
The judge explained the law governing criminal trespass and burglary, which are relevant because the McMichaels' lawyers argued their clients believed Arbery had been inside a house under construction and was responsible for burglaries. The McMichaels were trying to carry out a citizen's arrest, and Travis McMichael shot Arbery when he fought back, their lawyers said.
In defining citizen's arrest for the jury, the judge spelled out the conditions that must be present to motivate that arrest. He also noted that a person making a lawful citizen's arrest can't use "excessive force or an unlawful degree of force." And he instructed the jury that a person who's the target of an unjustified citizen's arrest "has the right to resist the arrest with such force as is reasonably necessary."
Self-defense cannot be used as a defense if the person is the aggressor in a confrontation and excessive force cannot be used in self-defense, the judge said.
He also told the jury that with defenses of citizen's arrest and self-defense, the prosecution must disprove those defenses beyond a reasonable doubt.
CAN THE JURORS ASK QUESTIONS WHILE DELIBERATING?
Jurors can send a note out when they have questions during deliberations. When that happens, the judge and lawyers work together to craft an appropriate response.
WHAT HAPPENS IF THE INSTRUCTIONS ARE WRONG?
Jury instructions are meant to inform the jury on the applicable law. If there is an error in the jury instructions, it can lead to the reversal of a conviction.
"Jury charges are where the best appeals happen because a jury charge issue, if the judge is wrong, is the most likely to lead to a reversible error," Fleischman said.
The defense attorneys repeatedly objected to parts of the jury instructions, which allows them to preserve that issue for appeal.
WHAT'S THE DIFFERENCE BETWEEN MALICE MURDER AND FELONY MURDER?
Unlike many states, Georgia doesn't have degrees of murder, but instead has malice murder and felony murder. Neither requires prosecutors to prove an intent to kill.
Malice murder is when a person "unlawfully and with malice aforethought, either express or implied, causes the death of another human being." No evidence of premeditation is required.
Express malice involves an intent to kill. Implied malice is when the there is "no considerable provocation" and the circumstances of the killing "show an abandoned and malignant heart," which essentially means the person has acted with extreme recklessness even if there was no intent to kill, said Georgia State University law professor Russell Covey.
Felony murder applies when someone who has no plans to kill intentionally commits another felony and a person dies as a result. The person must be convicted of the underlying felony to be found guilty of felony murder.
HOW CAN THERE BE FIVE MURDER COUNTS WHEN ONLY ONE PERSON DIED?
In this case, the prosecution is saying that the three men demonstrated "malice aforethought" when they illegally chased Arbery through the streets in pickup trucks and shot him. That's the basis for the malice murder charge.
But they're also saying that the three men intentionally committed four felonies — two counts of aggravated assault and one count each of false imprisonment and criminal attempt to commit false imprisonment — and each of those felonies caused Arbery's death.
The McMichaels and Bryan could each be convicted of multiple counts of murder, which would then be merged for sentencing.
WHAT ARE THE PENALTIES FOR MALICE AND FELONY MURDER?
"The sentence for felony murder and malice murder is exactly the same," said University of Georgia law professor emeritus Ron Carlson. "It is a distinction without a difference in terms of punishment."
The minimum penalty is life in prison. It is up to the judge to decide whether that comes with or without the possibility of parole. Even if the possibility of parole is granted, a person convicted of murder must serve 30 years before becoming eligible.
Jurors in Georgia are not supposed to consider the potential penalty when deliberating on guilt or innocence, as sentencing is up to the judge. Many defense attorneys believe jurors should be allowed to consider the consequences of their decisions, particularly since they may be confused about the distinction between malice and felony murder and may believe felony murder is less serious and comes with a lower penalty.
Murder can also be punishable by death in Georgia if the killing meets certain criteria and the prosecutor chooses to seek the death penalty. Prosecutors in this case did not.
HOW CAN ALL THREE BE CHARGED WITH MURDER WHEN ONLY ONE SHOT ARBERY?
No one disputes that Travis McMichael is the one who fatally shot Arbery. But his father and Bryan are also charged with murder.
Georgia has a very broad "party to a crime" law. "That means if you aid or abet in any way a person who's about to commit a homicide, you can be charged as the principal," Carlson said.
Prosecutors are arguing that the actions of all three men led to the killing.
WHERE DO THE AGGRAVATED ASSAULT CHARGES COME IN?
The first aggravated assault charge alleges that Arbery was assaulted with the 12-gauge shotgun that was used to kill him.
The second alleges an assault using the two trucks, one driven by Travis McMichael and the other driven by Bryan. The indictment says pickup trucks "when used offensively against a person are likely to result in serious bodily injury."
All three men are charged because they are considered parties to the alleged crimes.
HOW CAN THEY BE ACCUSED OF FALSE IMPRISONMENT?
False imprisonment involves detaining a person against his will, and may be most commonly thought of in a scenario where someone is held in a room or other enclosed space.
In this case, prosecutors say the three men used the trucks to "unlawfully confine and detain" Arbery when they chased him through their neighborhood.
"If you interfere and detain a person who has a right to travel in a public way, you have committed false imprisonment," Carlson said.
DO THE JURORS HAVE TO REACH AN AGREEMENT?
Yes. A unanimous verdict is required to convict or acquit someone in Georgia.