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At This Hour

Defense Begins Closing Arguments in Arbery Murder Trial; Closing Arguments in Trial of Three Men Accused of Killing Ahmaud Arbery. Aired 11:30-12p ET

Aired November 22, 2021 - 11:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[11:30:02]

JASON SHEFFIELD, DEFENSE ATTORNEY FOR TRAVIS MCMICHAEL: Travis McMichael has his own horrifying experience with a man that he is about to learn has just been involved in all this stuff with Larry English. He's been told some things by his mother and his father and other neighbors before this moment, but he's going to learn some things for himself on 2/11/20.

On this night, Travis is driving out of the neighborhood to go get some gas. He wants to fill up, so before 4:00 A.M. and do it. And on his way out, as he's driving down the road out of the neighborhood, he sees a man run across the street and then duck into the shallows, from this house, ducking through the shadows, through the trees, all the way across until he gets in front of this house.

Travis backs his car up and splashes his headlights up on the house. The gentleman steps behind a port-a-potty. Travis then starts to get out because he wants to say, hey, what are you doing here? The guy comes out from behind the port-a-potty, lifts his shirt up and acts like he's reaching in his pocket, and that totally freaks out Travis. Despite his training, despite his experience, it freaks him out. Travis tries to talk to him.

Now, the guy never says, hey, I'm sorry, I am so sorry, I was walking my dog or I'm so sorry, I did not mean to startle you, like any one of you would if you were out in the yard late at night, didn't say anything. Just did this. Travis got in his car, reversed out, stalled the car, but backed up and zipped home to tell his dad. As soon as his dad hears what's going on, his dad decides to go check it out. At the same time, Diego Perez has apparently been called, and he's going to check it out. They take firearms with them.

Travis tells you, he said, dad, whoa, wait a second. This guy could be armed. Wait a second. But his dad is already walking down the street. Travis gets in his truck, he backs up, he's calling 911, and he returns to the house where he puts the headlights on the house, watching, waiting, believing that this man could be dangerous, believing that his dad could now be in danger, believing that something awful could happen, so he posts up right here, lights on and waits for the police that he himself called. And when the police arrive, he stands there and he talks to the police, he tells them, hey, my dad is in there. Travis, why didn't you go in there, why didn't you in the house? He's, like, I'm not going in there. I'm not going in there when this guy did this. That was enough for me. I'm staying out here. It's a reasonable thing to do.

Ultimately, Travis calls police and we hear what he tells place instantly on the phone, we've had a string of burglaries, a lot of burglaries and break-ins. That's what he tells him. That's what's in his mind almost from the very beginning. He startled me, he reached into his pocket, didn't know if he was armed or not, looked like he was acting he was. He's sneaking behind a bush. He also tells the officer he had a pistol stolen about a month ago. This is what he's saying.

And you hear him breathing. He's -- and the operator says, are you all right, hon? Yes. I guess he just startled me. That's a real experience with a guy going into a house after being seen at night with headlights and reaching and then turning around and going into a house that's not his? Where is the logic in that?

And Travis then stays, talks with the officer, and then sees the video and sees this gentleman just walking around the house like he didn't just get stopped, caught and seen and had this interaction with Travis like it never happened.

[11:35:04]

He's just walking around the house very calmly. And Travis feels that that is so bold and brazen to do that. It frightens him about this guy. It worries him about this guy. It's real. It's what happened.

What happens next is the two officers show up and being told what they've been told that the guy acted like he had a gun and that he went into the house, they pull out their firearms and start going through the house looking and shouting and calling with their guns out, because they might need to protect themselves.

Are they committing an aggravated assault when they do this? Are they committing a false imprisonment when they do this? No. They're searching, looking and trying to apprehend whoever is in the house who may be armed.

And then everybody meets outside and they talk. And this is where Travis gets the rest of the information aside from his own personal experience. He and his father talking to Officer Rash, Diego Perez, Matt Albenze, Ronny Olson and Brandon Gregory, the officer who also works with Glynn County Police. They talk that night. And they talk about what's been going on.

And Travis gets to see the rest of the video, and he's, like, yep, this guy is that guy, it's all the same guy, been break-ins, been a lot of burglaries going on. He knows that stuff's been stolen already. And they have a conversation. You heard part of that conversation from the transcript. Rash says, well, we haven't actually seen him take it. That's because there was no camera on it. But I guarantee you if one of you left your bag in this room and we all went out into the hallway and I walked in here and you saw me walk in here and you never saw me leave and when you come back in you walk in, you go, where's my bag? Well, nobody else came in here, but Jason did, and the bag is gone. And, oh, look, there's a back door. Is it reasonable to believe that I may have taken your bag? Of course it is. This is burglary. He says, I haven't seen him actually take anything. Yes, criminal trespassing, yes, at the very least.

Travis is thinking about Ahmaud Arbery. He's thinking about what must be in his mind in order for himself to try to figure some things out. Travis knows that he caught Ahmaud going into the house. He knows that. And so Ahmaud should know that Travis knows that. He knows that Ahmaud has been down on the dock and that Ahmaud should know he's been down on the dock. And he's been on someone else's property. He's got to know that by now, Travis is thinking.

He knows it's not his home or his house under construction. He knows that he's been caught sneaking around the bushes. Travis is the one that caught him. He knows that there's been a confrontation about that. He knows -- he believes Mr. Arbery -- this guy, this man has to understand that these things have taken place, that he had headlights on him, that somebody was trying to talk to him about why he was out after dark in front of this house and he didn't respond.

If I say to one of you, hey, how are you doing? And you just look at me and walk away, you know you've looked at me and walked away. You know that's part of what's happened. And he still went in the house after being confronted in the dark. And then he looked around. He knows that he's in the house looking around and eventually that he'll be seen on the 23rd going in the house and that people were trying to talk to him and that he's not answering anybody, any questions.

And, ultimately, he knows that the police are on the way. Travis knows these things must be in Arbery's mind because they were part of a very real experience that he had with him. And because of that, Travis is starting to believe and expect certain things in return, obvious, ordinary, natural things that should happen in return.

To constitute the offense of burglary, it's not necessary that a break-in happened, that something gets broken. If you recall all the questionings by the state of the witnesses, well, was anything broken?

[11:40:01]

Was a window broken? Was a door broken? That's not what's required for law. Those questions are meaningless and they are red herrings. Nothing has to be broken. You just have to break the plane of the structure to constitute a burglary.

Then you don't have to show that an actual theft had been committed. Nothing actually has to be stolen. You just have to enter with the intent to steal something. Where do we derive a person's intent to steal something from a house? Well, they certainly go into a house that isn't theirs that contains valuables, and they do it at a time when they shouldn't be doing it, and under circumstances that are very problematic, including running from other people who see you.

Lastly, Larry English's deposition, Mr. English couldn't be here, he's very sick. Watching a lot of depositions is a hard thing to do. But the basics of this deposition, you made your neighbors aware, the ones that we've mentioned -- Albenze, Greg, Ronnie Olson -- you made these guys aware that you had stuff stolen out of your boat. Yes. In fact, you wanted your neighbors to help you catch the guy. Yes, Diego. I wanted Diego to catch this guy.

You never told them at any point, hey, guys, I'm sorry, it wasn't stolen when it was at my house. It was stolen when it was off property. You never told them that, did you, Mr. English? Never told them that. You never announced it on Facebook. You never announced it on next door neighbor. You never corrected what you now say is it was stolen off site somewhere, you never told your neighbors that. And he says, no. So, then, therefore, Mr. English, to your knowledge, they were left with the impression that stuff had been stolen from your boat at 220 Satilla? I guess so.

What was Ahmaud Arbery doing in Satilla Shores from October 2019 to February 2020? There is no evidence that Ahmaud Arbery ever jogged or exercised in Satilla Shores, not one friend, not one family member, not one eyewitness, even Rash going door-to-door, there is no evidence whatsoever that Satilla Shores was a place of exercise and jogging for Ahmaud Arbery.

Officer Rash testified that by December '19 he knew Larry had a cooler stolen, electronic equipment stolen from the offshore boat while it was parked in the R.V. garage, and Bob said, that's a burglary, a burglary had been committed in this residence, and he said that's right. But it was never reported. Like we didn't have a report about it so I didn't really investigate it. But that is a burglary, and he has admitted that to you as well.

February 23rd. Mr. Olson's surveillance camera shows that Mr. Arbery walked into the neighborhood, didn't run. He then stood in the yard and put his hands on his hips and looked around like this and then went into the residence. Matt Albenze was doing work in his yard and he saw this gentleman who resembled the gentleman who had committed what they thought was a burglary in that residence. He shut down the work that he was doing, put a gun in his pocket, grabbed his cell phone, and he walked all the way up the street to the corner where Jones meets Satilla, where he keeps his mailbox. And he stood there right next to this tree, and he called 911.

At some point in the video, when you see Mr. Arbery run out, you'll see he passes right through the window, and Mr. Albenze is standing right there on the phone calling the police. His behavior then changes instantly. Mr. Arbery is at a full sprint, running into the neighborhood, running into the neighborhood. As the state is going to confirm, means he's going on his regular job. No. Because running out of the neighborhood is a problem.

[11:45:02]

It's a problem now because there's a guy standing there on the phone looking at you, back in the same residence that you've been caught in now three times, caught, meaning on camera and police coming and searching with lights and Travis McMichael.

And to return to that house in the middle of the day like that, after being run off, imagine going to visit a house under normal circumstances. Oh, this house looks like one we might want to buy. I'm going to go in there. Then somebody comes up to you with headlights and tries you to stop you from going into the house and confronts you act it, are you literally ever going to go back to that house again?

It is unreasonable to think that he's going back there for some lawful purpose after being run out of there three times before. So, he doesn't run out of either of the entrances to go back across the street where he lives. He runs deep into the neighborhood. Someone has called the police.

Now, Travis has told you nothing has erased from his mind about this individual in the two weeks between February 11th and February 23rd. It's all still there. And while he's sitting in his home, his dad comes running in the house and says, the guy who's been breaking in down the street is back. He's running past. Get your gun. Travis and his dad carry their firearms for protection wherever they go. The law allows them to do it. They have permits to do it. Travis testified he had a concealed permit at one point. The law allows this behavior.

Travel comes out to the street. He looks down the street right across. Here he is at 2:30. He comes out here. Mr. Arbery has already run past. He comes out here. He looks down the street from where the house is and sees Mr. Matt Albenze, who is walking towards him and, eventually, after a couple houses, goes like this, and points down the street.

It is reasonable to conclude that based on what his dad said, who just came running in the house, the guy is back who's broken in, to come outside and look and see, see Mr. Albenze, who he knows, who he's talked with, who he shared thoughts and feelings about the person breaking in the house, is now saying go that way, the guy is back, to get in his car and go.

You cannot act on the unsupported statements of others. The state has characterized that, which is an accurate statement of the law, as Travis' mom. Are you kidding me? After all that we have seen, after all that he has experienced, after all the conversations that he's had, after all the videos he's seen, after what he experienced himself, that he's just going off of what his mommy told him?

This is what the state wants you to do something about. This is what they're trying to inject into this case, knowing, despite that, that Travis has called the police on the white man under the bridge, knowing that Travis called the police on a carjacker or told his police friends when he was in the Coast Guard and a report was made about the white guy that tried to rob his truck, knowing that Travis called the police about his gun being stolen and readily admits, I don't know who stole it, knowing that Travis called the police on the 11th of February. They want to try to reduce this case down to this statement, which is not true. Travis had all of this. His reading Facebook, everything going on at Larry English's house, knowing about what was happening at Satilla Shores, speaking to everybody on the 11th, his own experience, Albenze signaling, Officer Rash and Matt Albenze, this is what he carried with him when he left his driveway that day, reasonable and probable grounds of suspicion, reasonable and probable grounds of suspicion.

[11:50:06]

Facts and circumstances towards a prudent person, one taking care to understand the truth in believing that the suspect has committed the offense or burglary. Travis believes he's committed the offense of burglary.

The facts necessary to establish probable cause for arrest are less than those required to prove guilt beyond a reasonable doubt. It's more than suspicion or possibility. It's got to be a probability, probably, and he said, I had a probability, there was a probability that this was the guy who did it and here's why I think he did it. And I wrote down every one of the things that we talked about as he testified. I wrote them all down, and they are all encapsulated in that slide I just showed you.

This is where the duty and responsibility in following the law becomes intertwined with heartache and tragedy, because you do have the right to perform a citizen's arrest. You do have the right to have a firearm when you make an arrest. You do have the right to stop a person and to hold them and detain them for the police. And there is risk with that, and there are tragic consequences that can come from that and we can all sit here right now say what the state has said from the very beginning and what Travis himself recognizes. If he had only stayed home that day, if he just sat on the couch and fallen asleep with his kid that day, ravis told us there's not a day that doesn't goes by that he doesn't think that exact same thing.

But the law allows the citizens to make a citizen's arrest. And if doing so properly, it is the reason for the action that followed. Here, you talk about an offense being committed in his presence or with his immediate knowledge. What could be more immediate than February 11th? What could be more immediate than seeing the videos of him in the house and talking with police officers and other people, including hearing from Larry English and others that he actually had stuff stolen from his truck? An offense has been committed and he knows about it. He's seen everything other than the hand on the equipment that was stolen.

If it's a felony and the offender is escaping or attempting to escape, then you can arrest them upon reasonable and probable grounds of suspicion, probable cause. Travis said many, many times it was the totality of the circumstances. That's his Coast Guard brain. That's his Coast Guard brain saying everything that I knew gave me the belief that a crime had been committed.

Escape. Private citizen's arrest must occur immediately after the person trace of the offense, or, in the case of felonies, during escape. Not every person is arrested at the moment they commit a crime. Not every person is arrested by police because sometimes the police don't get there in time. But if they learn about the person and they have information about the person, escape can happen any time. Escape can happen later. It doesn't have to happen right at the same time the crime is committed. There's no law that says that. There's no time limit imposed. The police would never be able to arrest anybody, and a citizen is in the same shoes as an officer when it comes to citizen's arrest.

So, Travis leaving his house decides he's going to follow. That's what he does. He pulls out after his dad crammed into the front seat with the kid seat there and he follows, and he watches, and he pulls up next to this gentleman. No gun is raised. No violence has ensued. He doesn't get out of car, he doesn't tackle him, he doesn't do anything. He does what a reasonably prudent person would do. He does what his training has taught him to do to use leaps and he says, hey, man, what's going on? Can you stop for a second? Please, I just want to talk to you for a second. There's no violence.

If Travis wanted violence against this man, if Travis wanted to hurt him or commit an aggravated assault or commit a false imprisonment he could have done it right then and there.

[11:55:01]

He doesn't. He talks to him. Mr. Arbery looks him in the eye, doesn't say a word, doesn't have to, but that's information for Travis. Is it so offensive to pull up next to somebody and say, hey, man, can you stop for a second, I want to talk to you just for a minute? Hold on a second, is that so offensive?

So, he stops. He starts to go back one way. Travis backs up alongside of him three feet away, not pulling in front of him, not pulling behind him, just tries to talk to him and Mr. Arbery takes off running down the street. And Travis watches him. There he goes. Doesn't take a gun out, shoot him in the back, doesn't take a gun out and commit aggravated assault, doesn't take a gun and try to kill him, doesn't try to hit him with his truck, he watches him, watching.

So, he pulls up next to him, and he stops again. He says, hey, hey, hold on a second. I just want to talk to you for a minute. Something is going on back there. We want to know what's going on. He's not saying to the guy, I don't know what's been going on in this neighborhood. To do that would do, what, it would escalate the situation? So he just says we want to know what's going on back there. Why is that guy pointing at you? Why is he doing that? Mr. Arbery stops, he looks him dead in the eyes, doesn't say a word and Travis just says, we want you to stay right here we're calling the cops, call the cops. He called the cops. And Mr. Arbery bolts.

Now, on the subject of police, Travis told you, got in the car with my dad. I said, dad, are the cops coming? Yes, yes, yes. Go this way. Go this way. Very clear, he says he asked his father about the cops being called. They call the cops all the time. This is not like it's a new thing for the McMichaels to call the police.

Here, when they say, call the cops now, he bolts. And it's on that bolting that Travis thinks this guy knows he's caught. He knows he's caught because he's bolting. He's looked at me. He won't talk to me. That's odd. I'm not talking to him in too aggressive of a way and he bolts. And Travis stays right where he is, and he watches. He watches what happens between his truck. He has no clue who this black truck is.

In terms of evidence, there is no evidence of any communication between these people, any cooperation between these two people, no help, no assistant, no encouraging, nothing. So, he sees this truck and he tells you it's one of a couple of things. It's either the guy from up at 220, or it's his buddy, maybe trying to give him a lift or now that I'm watching him, he's being very aggressive against this truck. He's watching it from 200 feet away, but he's thinking this guy is being really aggressive. This is something -- there's something off with this guy.

His dad says, Travis, go. Dad gets out of the car, climbs in the back of the truck with his rebuilt hip and his medical issues. Travis watches him to get in, looks down the street, sees this, takes his gun off the floor board, puts it up on the bench seat, his dad says, go, go, get down the street. Travis says, no, I'm not going back that way. Something is off with this guy. I'm not going into that.

Well, if he wanted to go commit an aggravated assault, if he wanted to go do a false imprisonment, if he wanted to end the life of somebody, whether it's murder or felony murder, there's another chance, but he doesn't. He just watches. And then he says, I'm going to drive around.

A judge is going to charge on hijacking a motor vehicle, personally commits the crime of hijacking a motor vehicle in the second-degree when such person obtains a motor vehicle from the individual without his or her consent. Travis is watching that guy get in that car in an aggressive way and he thinks that does not look good. Whether he thinks to himself that's a hijacking or not, it doesn't look good. It looks dangerous.

Travis also told you that when he came face to face with Mr. Arbery, even though he didn't speak, he looked very angry, he looked very upset, clenching his teeth but not saying a word. These are the notes I took about it right in front of you guys. Just wrote it down as he was talking. Stop, please stop. Mad, clenched teeth, was very unexpected. What's going on? I want to talk to you. What's going on? Police are on the way.

[12:00:00]

And then his dad says go back there. He says, I am not going around there. I'm going from Buford around the homes. And that's what he does. He drives around.

Now, his dad is in the back of the truck.