In the Georgia trial over the killing of Ahmaud Arbery, Judge Timothy Walmsley delivered a haymaker to the defense on the very eve of closing statements.  The court ruled that Georgia’s prior citizen’s arrest law is only applicable if a person see a felony committed and acts without delay. The ruling could be “outcome determinative” in the case by stripping away the core defense that these men were chasing a person suspected of a series of crimes over the last year. Travis McMichael, his father, Greg McMichael, and William “Roddie” Bryan are likely to make this ruling the heart of any appeal if they are convicted. 

The judge ruled Friday afternoon that the prior citizen’s arrest law requires that the arrest would have to occur right after any felony crime was committed. Bob Rubin, attorney for Travis McMichael, objected that “if you are going to instruct the jury as you say, you are directing a verdict for the state.”

Judge Walmsley simply responded “I understand the significance of this charge.”

The new law in Georgia removes the right of bystanders or witnesses generally to detain people. Deadly force is not authorized to detain someone unless it is used in the act of self-protection, protecting a home, or preventing a forcible felony. The new law does allow business employees to detain people suspected of theft, including restaurant employees who detain people who try to leave without paying for their meals. Licensed security guards and private detectives are also allowed to detain people.

Georgia, however, still retains its “stand your ground” law, which does not require retreat before someone defends themselves.

Here is the prior law:

O.C.G.A. 17-4-60 (2010)
17-4-60. Grounds for arrest

A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.

Walmsley’s interpretation is that even if the offense is committed in a person’s presence or within his immediate knowledge, they must act contemporaneously with that observation.  The active language of the second line would seem to support that meaning of an immediate response to the observed crime.

The defense could appeal this ruling and will likely do so with any conviction. One can read the first line to mean that the qualification elements refer to person observation or knowledge. The second line could then mean that the person, upon confrontation or identification, is attempting to escape.  Moreover, if it is not “committed in his presence,” it is a bit unclear what “within his immediate knowledge” means. It clearly cannot mean the same thing as “committed in his presence.” Thus, it suggests that someone has been informed of the status of the suspect as an offender. Of course, that could still mean, as Judge Walmsley suggests, that the knowledge was “immediate” to the crime like assisting an actual witness to the crime.

The history of this provision is highly controversial. Indeed, the problem is that the court must rely on past courts interpreting a law with a horrific legacy not just during the Civil War but later during the Civil Rights movement.

The law was created in 1863 and was designed to allow whites to capture fleeing slaves.  The defense could argue that such a purpose contradicts Walmsley’s immediacy element since fleeing slaves could be captured days or weeks after escape. However, the appellate court could rule that the escape was, at that time, considered a crime in progress and thus remained an immediate or ongoing crime.  The appellate court will have to weigh past cases on how the law was interpreted.

Whatever happens on appeal, the ruling cut the legs away from the defense. This is a common risk in criminal cases where you build a defense based on an interpretation that the court later rejects on the eve of closing arguments. In my view, courts should avoid this problem by ruling on such threshold legal issues before the trial.

As I have noted throughout the trial, both the prosecution and defense counsel were strong in the case. The defense counsel did an effective job in having McMichael go through his training in the Coast Guard. At points he sounding like an expert witness on law enforcement and the use of force. The prosecution did an excellent job in showing that there was no evidence that Arbery had actually stolen anything and how McMichael continued to pursue him as Arbery tried to avoid the trucks.

Defense counsel took a considerable risk in putting Travis McMichael on the stand. As a defense attorney, I see the justification for the risk. Indeed, this ruling increases the need for such a Hail Mary play.

The thrust of such testimony is not acquittal, which always seemed unlikely. The videotape in the case is too chilling to expect an acquittal. The scene of these men chasing Arbery in their trucks was incredibly upsetting for many of us who watched the videotape. It was equally unnerving to see a law designed to chase down slaves used as a defense.

The testimony of McMichael was more likely part of a strategy for a hung jury — trying to create just enough of a connection with the defendant or reasonable doubt to sway a couple of jurors. Hearing from the defendant can create that type of connection.  While McMichael made admissions like the fact that Arbery did not threaten him before they struggled for the gun, that fact was already obvious from the videotape and the testimony of witnesses. The defense was trying to rebut the image of the videotape showing McMichael shooting Arbery and then walking away. That is not likely to sway an entire jury as opposed to a couple members. However, you need only one holdout for a hung jury.


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