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The Lead with Jake Tapper

Defense Gives Closing Arguments In Ahmaud Arbery Murder Trial; Five Waukesha Parade Victims Identified, Ages 52 To 81. Aired 4-5p ET

Aired November 22, 2021 - 16:00   ET

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

[16:00:08]

KEVIN GOUGH, DEFENSE ATTORNEY FOR WILLIAM "RODDIE" BRYAN: How can one say that he has lied on February 23rd when he says he was trying to get a recording of Mr. Arbery, that he was trying to document what was going on because he thought Mr. Arbery was going to get away, and he wanted the police to have that information. Those weren't my words. Those were his words way back, moments after the shooting.

Now, having seen that Mr. Bryan was going away and then turning around and put the video back up, how is that not a reasonable doubt in this case?

Now I don't know what Ms. Dunikoski is going to be said when she gets back up here, but I know that it seems like every technician in creation has been involved in this case. Drone this, footage that. Filter this and enhance that. We've got 20 million frames of every second of the footage in this case, but how in the course of all that work does someone who is practically computer illiterate figure out that they have this case all wrong? How is that possible?

And how do you know that? Count the gear shifts. The state's theory is that there's three shifts, three changes in direction. That's six gear shifts. They're not audible. We know what happened.

And I don't care what Travis McMichael says. I don't care what anybody else says. I'm looking at the video and listening to the changes. You know that when this -- right here, when Mr. Arbery turns around and whatever Mr. Bryan thinks he's doing with the wheel, I don't see much actual movement, okay? I see him at 2 miles an hour and then his foot is off the gas pedal.

Whatever Mr. Bryan thinks he did, I don't think it was much. But you know that he's driving away from Mr. Arbery at this point because he can't go back and then go back and go back again because there aren't enough gear shifts.

I want to talk about felony murder. Now, there are more capable lawyers than I am and they certainly have come up with great ways to analyze all these things and make it simple. I'm just not quite as adept as they are. So if I take a little longer, I apologize. The predicate offenses for the felony murder counts, those are counts, two three, four and five, are counts six, seven, eight and nine and I'll address each of the underlying or predicate felonies in a moment. But right now, I want to talk about something called proximate cause.

Because to support any of the felony murder counts, there has to be a causal relationship to the death of Ahmaud Arbery. And there is no such relationship in this case. Without trying to put words in the court's mouth, I think the court is going to charge you -- I'm not there yet.

You may find the defendant guilty of felony murder if you believe that Mr. Bryan caused the death of Mr. Arbery, regardless of whether Mr. Bryan intended the death to occur. That's felony murder. There must be some causal connection between the felony and the death. The court, I believe, will instruct you that felony murder is not established simply because the death occurred at the same time or shortly after the felony was attempted or committed.

The burden on the state is much greater. The felony must have been directly caused or must have directly caused the death or play both a substantial and necessary part in causing the death. In this case you may also consider whether any intervening act, those are my words, whether on the part of the McMichaels or Mr. Arbery were sufficient to break the chain of events.

I believe both of the lawyers that preceded me for the McMichael defendants have pointed out the error in the state's argument here. Listen carefully to the court's charge. The words but for appear nowhere in that charge. They are not to be found.

Why? Because but for is not the standard. It's too easy a standard. It's too low a standard. It doesn't meet the law.

Why? Mr. Sheffield pointed out that, but for, I think Mr. Travis McMichael's grandparents, Travis McMichael wouldn't have been there.

[16:05:10]

Likewise, I would say but for Roddie Bryan's birth, there's no way that this crime could have taken place under the state's reasoning.

You know, the same thing could be said, but for Larry English installing surveillance cameras, the McMichaels would never have known this was the fellow running by them. But for Matt Albanzi (ph) pulling out his wood chipper that day and working in the front yard he never would have saw Mr. Arbery.

But for the actions of Robert Rash (ph) and Diego Perez (ph), this incident might not have happened. But for Mr. Albanzi calling the normal police number instead of 911, the police might have responded faster and things might have been different. But for Mr. Albanzi cutting off the Satilla (ph) drive exit, Mr. Arbery might have escaped.

But for a hundred different things, all of which had to come together in the exact sequence for this tragedy to take place, it could not have happened. So simply saying that but for Mr. Bryan being there that day, that's not the standard. And the state doesn't even try and meet the standard that the court is going to instruct you on. Maybe they are just waiting until they have the last word, and all I

can say about that is that's just dirty pool (ph) and I certainly hope that's not what's going on.

Now again, with all respect to the state, who have some very capable lawyers, when we look objectively at the events of February 23rd, I would respectfully submit to you that Roddie Bryan's presence is absolutely superfluous and irrelevant to the tragic death of Ahmaud Arbery. Now that may not be intuitively obvious but if you think about it I believe you'll agree.

Had Roddie Bryan stayed in bed that day, if Roddie Bryan had stayed on his front porch, would Ahmaud Arbery be alive today? If the state's theory is that these men, and I'm not saying that's the case. You decide what the deal is with the co-defendants. But if the theory is that these men were vigilantes and harbored some ill will towards Mr. Arbery, then what difference does it make whether Roddie Bryan is there or not?

Mr. Arbery can't outrun bullets. They've been chasing him for a while. He's practically at point blank range even before he comes around the truck. The problem is for the state that Mr. Albanzi, thankfully, not indicted, not yet anyway, Mr. Albanzi is down the street with his firearm. Roddie Bryan doesn't know that.

That's why Roddie Bryan goes down Satilla momentarily as Mr. Bryan is turning up the road. The state was trying to say Mr. Bryan was trying to run him over when, in fact, Mr. Arbery had already turned up Holmes by the time Mr. Bryan put his car in reverse. One of the several times they incorrectly stated he was trying to run Mr. Arbery over.

The reason Mr. Bryan is continuing down Satilla is he doesn't know that Mr. Albanzi is there. He can't. Mr. Arbery does which is why Mr. Arbery is not going to go down that way.

Now, my point to you is Mr. Arbery is on foot. The McMichaels are in a pickup truck. We know they circle around all the way up Zellwood to the top of Holmes. How does Mr. Bryan's presence on the road that day, whatever he thought he was doing, okay, because if the idea is that he imprisoned Mr. Arbery by himself that somehow -- and those are the words he uses that he corner plead Arbery by himself? I guess between his truck and the mailbox? I don't know. Between his truck and the marsh? I don't know. Still have to explain the theory to you, but the truck can go a lot faster. Mr. Arbery if he's superhuman, might be doing 5 or 6 miles an hour. Maybe 7. That pickup truck is capable of probably driving 100 miles an hour. Maybe 90.

Mr. Bryan's presence on the road has nothing to do with the ability of the McMichael defendants to cut Mr. Arbery off. Why? Because even though Roddie Bryan doesn't know it, Albanzi has cut off one two of exits from the neighborhood and the others have cut off the second. Mr. Bryan is not trapping Mr. Arbery. He's trapped the moment the McMichaels get to the top of Holmes. It doesn't really matter what Roddie does.

[16:10:03] Now, they do come down the road and there is a brief time period before the shooting where technically Mr. Bryan is behind Mr. Arbery, but it's clear by this point, it's certainly clear to Mr. Arbery that he cannot outrun the McMichaels. No matter where he goes, they can follow.

So again, how is Mr. Bryan's presence on this day in any meaningful way the cause of this shooting? By the time Mr. Bryan gets around the dogleg, Mr. Arbery is already well within range of the shotgun that Travis McMichael is holding and the handgun that Gregory McMichael has.

So if their intention, and again, I'm not suggesting that it's their intention, but if the McMichaels meant harm to Mr. Arbery, if they meant to shoot him that day, what in the world is Mr. Bryan's presence out there have to do with anything? I would submit to you that this is basically all the smokescreen from the state because Mr. Bryan's presence doesn't contribute in a direct or substantial way to the death of Mr. Arbery. Because the McMichaels were certainly capable of catching up with him and shooting if that was their intention.

One more proximate cause issue I want to discuss on the four felony murder counts because it's basically the same issue. And the issue, the principle is one of intervening acts. The why is going to instruct you that it must -- the causation must be direct and it must be substantial. The charge has used the words essentially it must be unbroken. Anything that breaks the chain of causation prevents a return of a verdict on felony murder.

UNIDENTIFIED FEMALE: Objection. Obviously, there's an issue. That is --

JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT, STATE OF GEORGIA: Mr. Goff, if we could please -- if you are going to make representation with regard to the law that will be charged to the jury, if we could remain within the charge that has already been approved by the court and that will be read by the court.

GOUGH: Thank you, Your Honor.

Let me go back and make sure I haven't misspoken. The court is going to charge you, I believe, that the felony must have directly caused the death or played a substantial and necessary part in causing the death. In this case, what I'm suggesting to you is that if either the actions of Mr. Arbery or the actions of Travis McMichael or the actions of both contributed to Mr. Arbery's death, then Mr. Bryan cannot be the direct, the substantial and the necessary cause of that death.

What am I talking about? I think it's already been referenced. I could be wrong. I don't want to misspeak, that Travis -- I'm sorry, that Ahmaud Arbery turns in front of the vehicle at the last -- the white pickup truck at the last moment and basically meets Travis McMichael in the front of the truck. We can't see in front of the truck but we know that's where they are. The question for you is -- and I'm not trying to decipher who did what

or why because from Mr. Bryan's perspective, it doesn't matter. It does for yours, but for Mr. Bryan's perspective, it doesn't matter. But Mr. Arbery's decision at that last moment to turn left instead of right as Mr. Bryan would have expected. You can tell from the way he's angling his phone, anticipating Mr. Arbery's path of travel. When Mr. Arbery turns to the left, does that not break the causal chain in this case? I would submit that it does.

Whether Mr. Arbery is justified in turning and coming at Mr. McMichael or not, that's for you to decide. That affects other people in this case. But Mr. Bryan is not responsible for that.

[16:15:02]

That breaks the chain. The causal chain. It's no longer substantial and necessary. It's no longer direct.

Likewise, when Mr. Travis McMichael closes the distance from -- to the left of the truck as you're looking at it on the screen towards the middle of the truck or exactly where -- I'll let you all figure that out. But when Travis McMichael does that, regardless of whether Travis McMichael is justified in doing so, doesn't that also break the direct causation? Does it not also break the substantial and necessary part of Mr. Bryan in causing the death of Mr. Arbery?

I would submit to you that Mr. Bryan cannot be the direct and substantial and necessary cause plaintiff Arbery's death. Whether that is the fault, for lack of a better phrase, of Mr. McMichael, the fault of Mr. Arbery or the fault of both or simply without any fault on either part and an unavoidable tragedy. Why should Roddie Bryan be held responsible for that?

I would submit to you under the law that Mr. Bryan cannot be guilty of any of the felony murder counts for that reason alone.

All right. We're to count six. Count six alleges aggravated assault by shooting. Now we know that Roddie Bryan did not shoot Mr. Arbery. The theory here is parties to a crime.

And again, how can Mr. Bryan intentionally help commit a crime that he has no reason to believe is about to take place. When did Mr. Bryan see the gun? When does Mr. Bryan know they are armed? What can Mr. Bryan do about it?

Again, you've seen from the video that by the time Mr. Bryan knows that the McMichaels are armed, it's mere seconds before the shooting takes place. So the idea that Mr. Bryan will get out of his car or honk or yell stop, we know that's fantasy on the part of the state. What's going to happen is going to happen at that point.

Mr. Bryan cannot be guilty as a part of the crime because he can't intentionally help commit a crime he doesn't have reason to believe is going to take place. And he doesn't help. The McMichaels could have shot Mr. Arbery. Had that been their intention, the McMichaels could have shot Arbery before he got to Roddie Bryan's driveway. They could have done it the whole time.

That's got nothing to do with Roddie Bryan. They don't need Roddie Bryan's help to shoot this young man. And I'm, again, I'm not implying guilt or innocence here. It's not my call. It's your call for the other defendants. But what does that have to do with Mr. Bryan?

That takes us back to aggravated assault, count seven. I've discussed the physical evidence with you before. The lack thereof. And I'm going to go through that just as quickly as I can.

I would note that the state presented no rebuttal evidence during the trial of the case and so the evidence is the same as it was when we first had this conversation. I would submit to you that Roddie Bryan isn't out there like Evel Knievel tearing up his neighbor's yards.

How do we know that? First, where are the pictures of the damage done by his truck tires? There's no evidence of that. Second, there's no evidence the neighbors complained or reported destruction. There's no evidence of landscaping material or other material on the underside of his truck.

How could this be with a deep watery drain. I think the evidence was conflicting. A drainage dish running along much of there. Again, the context is key. I believe counsel for one of the McMichaels pointed the same thing out basically. How hard can it be to evade and elude someone who can't go off road without doing more damage than the neighbors would allow?

There's no evidence from the truck's computer system. Roddie Bryan again is either the smartest guy in the room or I guess he's just the luckiest guy in the world because when he speaks on the scene and later detective lowery, he has no way of knowing whether that information has or will be preserved. There's no -- nor is there any evidence that Roddie Bryan tampered with it. Certainly you can't blame him that law enforcement waits several months to pursue that evidence.

There's no evidence that Mr. Bryan deleted or edited the video from 2/23.

[16:20:03]

We know he couldn't practically speaking. He watched it at the same time the police officer.

Where is the physical evidence on the roadway of Mr. Bryan's aggressive driving? Where are the tire tracks, the brake marks, skid marks? For all the times Mr. Bryan supposedly has stopped short or changed direction. Said he doesn't destroy anything. There's simply no physical evidence of aggressive driving.

What about the lumber in the back of the truck? You know, the evidence shows it's still in the back of this truck afterwards. There's no evidence that any of those timbers went through the back of his windshield. No evidence Mr. Bryan had to drive back around the neighborhood picking him up. No evidence of damage to the bed liner, the tailgate. I don't believe there's evidence of even a scratch attributed to all the acrobatic maneuvers implied by the state.

I'm not sure there's even a picture of the front of Mr. Bryan's truck in evidence, but if there is I'm sure Ms. Dunikoski will provide that. Nobody has been looking for that evidence because there was no crime to investigate.

There are no witnesses. Nobody will testify they saw Mr. Bryan drive aggressively or recklessly. No neighbors will testify to that because it didn't happen. We have a neighborhood chock full of security videos. None of them catch this aggressive driving.

What does the medical examiner tell us? The medical examiner testified extensively in this trial. He testified, I believe, that the pickup truck could be a deadly weapon depending on the manner in which it was used. That's consistent with the charge this court will give you.

But what evidence is there that Mr. Bryan did, in fact, injure Mr. Arbery? I don't recall there being any testimony any of physical injuries to Mr. Arbery attributable to Mr. Bryan's actions. The cause of death was gunshot.

Let's talk about the fingerprint evidence for a moment. The finger print or palm print is at the driver's side door on the side of the pickup truck. Mr. Bryan points this out in the minutes after the shooting to Officer Menchu (ph). There are no prints or cotton fibers on the front of the truck or back of the truck.

Now last I checked, unless you are a Hollywood stunt person, maybe a veteran of "Fast and Furious: Tokyo Drift", you're not in control unless you're out of control. I think that was the trailer for the movie. Absent something extraordinary like that, we know pickup trucks don't move sideways.

We also know, when I said earlier there was no witness, we have a witness. And that's Travis McMichael. Travis McMichael testified about the events of 2/23/20. Travis McMichael did not testify to aggressive driving on the part of Roddie Bryan. Travis McMichael testified, I believe, to Mr. Arbery attempting to get in Roddie Bryan's vehicle not once, but twice.

Carjacking is a felony. Attempted carjacking is a felony. You will be charged on what attempt is.

But the point here is that the objective evidence is not that Mr. Bryan was engaged in aggressive behavior. The evidence is that Mr. Arbery was. And I don't say that as a measure of disrespect to Mr. Arbery. That's just what the testimony is.

And I think the state questioned that. I could be wrong. But I could remind the jury, I believe during the testimony of Special Agent Jason Seacrest (ph), during that testimony, I believe I specifically referenced page 54 of that transcript. There's a time Roddie Bryan is testifying and he says he's coming back at me and I'm like, oh, blank, excuse me, again.

Now I started kind of evasive action, which we see on the video and dropped the phone. So long before Mr. Bryan has any reason to believe that anybody else has seen this, he's provided that information.

Getting back to Mr. Bryan's statements, as I've indicated before, context is a key. It's not the word Bryan is using. It's the truth, the meaning that he is conveying with them and I think I may have used the example before. If I were to say I ran into your ex in the parking lot at Walmart, you wouldn't assume I ran them over, although technically, you could tomorrow the words that way.

There are a lot of words we use. When we talk on this coming weekend when Bulldog fans talk about wrecking tech. We don't actually expect that they will. It's a figure of speech.

[16:25:02]

And again and again through the examination of these officers, we see that the words that the state has taken have been taken out of context. We see they've been juxtaposed in inappropriate ways, to suggest a conversation that was different than it was. But I can tell you remember this discussion previously.

So I'm going to truncate that discussion by pointing out the obvious. Three police officers interview Roddie Bryan. They don't Mirandize him. They don't tell him that he's under investigation because he's not.

At the time of all these interviews, Roddie Bryan is a witness. At the conclusion of the Glynn County Police Department report, Roddie Bryan is still a witness. Roddie Bryan may not be careful with his words because Roddie Bryan's never been told anybody is looking at him.

But the bottom line is this: three good solid police officers that you heard testify, all interview Mr. Bryan. All of them have written summaries of their reports. I went through the five-page version of Mr. Seacrest. I think I went through the versions of the other officers. Not the transcripts, but their actual summaries.

Three police officers who know exactly what they're doing, interview Mr. Bryan. None of them interpret his words to suggest that he committed an aggravated assault. None of them interpreted his words to suggest that he was involved in any false imprisonment. None of them read -- none of them hear that in what he says.

And I would humbly suggest to you that if three police officers interview Mr. Bryan for what turns out to be a total of hours. OK, we had an argument about how long the transcripts were and what that would mean. I don't care how you break it down. Three experienced police officers investigate Mr. Bryan. None of them summarized for their superiors that Mr. Bryan attempted to run over Mr. Arbery, attempted to strike Mr. Arbery, or attempted to imprison Mr. Arbery. It's not there.

If that isn't a reasonable doubt on count 7 aggravated assault, I just don't know what it would be.

Before I leave count seven, I do want to discuss lesser offenses. Not really sure why we call them lesser offenses, but that's what we call them. With respect to the aggravated assault count, with respect to Mr. Bryan only, the court is going to charge you on three lesser offenses.

Two of them are pretty much garden variety. One of them is a traffic offense. We'll leave those for your consideration. The third one, I do want to discuss, however. That is reckless conduct. We don't see that one as often. So, let me take a minute and discuss that.

Reckless -- in reckless conduct, that offense is committed when a person commits reckless conduct when that person endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person. And the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise.

I would suggest to you that Mr. Bryan did not consciously disregard a substantial unjustifiable risk in operating his motor vehicle. We'd submit that Mr. Bryan did not commit any offense in the operation of his motor vehicle. But this is before you, and if you decide you that Mr. Bryan is guilty of that, when Mr. Bryan will have to live with the consequences.

We have two counts left. Your Honor, I'm getting a look. I don't know whether that means --

WALMSLEY: From who?

GOUGH: I think the jury might want a break. That's up to them.

UNIDENTIFIED MALE: Head shaking no.

GOUGH: Head shaking no. Well, then that's the answer. Sometimes when people are shaking their heads, you don't know what they mean.

All right. Sometimes people are shaking their heads, yeah, he's crazy. I get it.

All right. Let's talk a little bit about false imprisonment.

Mr. Bryan never denied follow playing Arbery. Mr. Bryan has never denied quote/unquote, angling his vehicle ahead of Mr. Arbery, although he did not use the words in the first interview as the state had suggested. He used that word subsequently.

Mr. Bryan has never denied blocking Mr. Arbery's path of travel. He's never denied cutting in ahead of Mr. Arbery. He's admitted he did that several times but as to exactly how many times or where or when the state acknowledged that they really didn't know the path of travel. It's essentially speculation.

But what we've shown you, I think, at this point is that although Mr. Bryan did all those things, that's not a false imprisonment.

[16:30:02] Among other things, Mr. Bryan with his own vehicle can't do that on his own. And we know that the McMichael vehicle has gone back down to Zellwood and all the way around, which is why Mr. Arbery is alone there for key parts of this encounter.

All right. The court will charge you on the law with respect to false imprisonment. This is count eight. The McMichael attorneys have already gone over this in some detail. I'll try to avoid that same ground.

(AUDIO GAP) there can be no false imprisonment. That's the law. Mr. Arbery never really stopped. He never submitted. I think the state's position was that Mr. Arbery resisted to the end of his life.

And in saying that, I mean no disrespect to Mr. Arbery. I don't wish to lessen the magnitude of this tragedy. I'm simply applying the relevant law to the facts.

I'm going to use a different example to illustrate the point I'm trying to make. I try to be humorous sometimes. Sometimes the humor is not successful. If it's not, please don't hold it against Mr. Bryan.

To illustrate the point I'm trying to make here, let us consider the classic example of a bank robbery. A man with a gun enters the bank and yells with a gun, get down on the ground. I will shoot.

There are three customers in the bank. The first is a lawyer. The second is a schoolteacher. The third is a college freshman listening to music, texting a girl and late for class.

Now instead of getting on the ground and before the robber can even finish his thought, the lawyer foolishly asks, hey, don't I know you? The lawyer gets shot. He instantly dies. This is murder or felony murder, however, this is not false imprisonment.

The second customer, the schoolteacher, says please don't shoot me. I have children. I'm taking a busload of kids to the museum. She gets on the ground. The schoolteacher has complied with the robber's commands. She's shaken but otherwise okay. The schoolteacher, she has been falsely imprisoned.

The third customer, the college freshman for whatever reason, ignores the bank robber. The college freshman says nothing but runs out the door just as fast as he can. He never looks back. When his parents call later that day asking how he's doing, the college freshman doesn't even mention his near death experience. The college freshman, although certainly fortunate to be alive, has not been falsely imprisoned.

Likewise in the case before us under Georgia law, I would respectfully submit to you whatever crimes may have been committed that day, Mr. Arbery was not falsely imprisoned prior to his tragic death.

Ms. Dunikoski may see things differently for reasons that should soon be clear, she may contend. Remember, under Georgia law, she always gets the last word, that Mr. Arbery did now submit in the last moments of his life to a combination of the harsh verbal commands of the McMichael defendants, if they did so in the brandishment of the weapon, if they did that. That's not exactly how I recall the evidence but I would submit there's still no false imprisonment here as a matter of law.

Why? Please look more carefully at count eight. Mr. Bryan is not charged with falsely imprisoning Mr. Arbery with either verbal commands or guns. That is not how the indictment reads. It alleges that Mr. Arbery was confined and detained quote/unquote, using said pickup trucks.

DeKalb County district attorney, I would suggest that you hold them to that language. Nor discount Mr. Arbery was falsely imprisoned. Count nine alleges an attempt to commit false imprisonment on Burford. But count eight does not allege that Mr. Arbery was falsely imprisoned on Burford.

Now, that maybe where the state contends the chase started, but the indictment alleges the false imprisonment with pickup trucks happened on Holmes. The state contends that what you see on the -- that's what the state contends you see on the now famous video. We'll come back to that.

There are other several legal principles to review before I move on. Again, I think I discussed this. Abandonment is a defense to the charge of false imprisonment. I've been through that so I won't torture you with that again.

[16:35:23]

We're getting there. Things I've already covered I'm not going to repeat for you.

All right. Trying to find -- we've covered that.

All right. Attempted false imprisonment, in count nine, Roddie Bryan is charged with false imprisonment on Burford Drive. He's not charged with attempted false imprisonment on Holmes. Only Burford. There are reasons for that but not relevant to this discussion.

The court will charge you that in order to commit the crime of criminal intent to commit false imprisonment, the state must prove intent to commit false imprisonment, because that's required to be a party to the crime. In other words, to prove an attempt which is what is known as an inchoate crime, the statement show Mr. Bryan's specific intent to falsely imprison Arbery.

In other words, for the attempt charge, Mr. Bryan would have to know that the McMichaels, with whom he had not spoken, lacked probable cause. Now, whether you ultimately determine that the McMichaels had probable cause or that Mr. Bryan had it on his own, there obviously was some considerable testimony about his trailer being taken, something taken out of a family member's truck.

He had indicated he got the security system because of concerns. He had heard a bunch of stuff at work. But specifically with respect to the McMichaels, because he's not spoken to the McMichaels, he can't have the specific intent to help them falsely imprison Mr. Arbery. It's just a quirk of the law that he doesn't -- he can't be convicted on that basis.

Now, almost done. When I go home this evening, 174 Sinclair, I will be sleeping soundly for the first time in a while because this case, hopefully will be -- will have been submitted to you by then and my work will be done.

Ms. Dunikoski is going to get the last word. I ask yourself to ask the questions that I will not be able to. Please don't allow any more cheap shots. No more gotcha moments in this case.

You will recall the state, I believe that was Ms. Dunikoski playing the video of a utility truck stopping at the English residence and the guy jumps out to use the port-o-potty which was relevant to absolutely nothing other than Ms. Dunikoski's desire to reinforce for you that Mr. Arbery was dead.

That was clearly inappropriate. It was what I call a gotcha moment and I would submit there's already been too much of it. You know, we've had professional witness comes in here trying to tell you who you should believe. Again, please no more cheap shots in closing.

And then, of course, we have the state talking about the death penalty for theft, for which they were admonished by the court. I'm not trying to rub it in, but I would suggest that given all of the cheap shots and all the misstatements, I won't say they're knowing. You won't be jumping any assumptions but given all the cheap shots against Mr. Bryan, I would hope that when Ms. Dunikoski has the last word here, that you'll hold her accountable and that you will not accept her tolerate any more cheap shots when I have no opportunity to respond.

Again, I'm going to posit these three questions to you. When did Roddie Bryan know the McMichaels brought guns? When did Roddie Bryan know Travis McMichael would shoot Mr. Arbery? And at that point, what could Roddie Bryan possibly have done to stop it?

Mr. Bryan put his faith in the Glynn County Police Department.

[16:40:05]

And then he put his faith in the GBI. He put his trust in law enforcement. He put his trust in our government to do the right thing by him. His trust was not rewarded. And now he finds himself before you.

We place Roddie Bryan's fate in your hands. We ask you to return a verdict of not guilty on all counts. I ask you to send Roddie Bryan home. Thank you.

JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT, STATE OF GEORGIA: Thank you, counsel.

All right. Ladies and gentlemen, we are going to take a 15-minute recess. I need to work through some scheduling issues and figure out where we are. And we will bring you back out for continuation of the case or other announcements in about 15 minutes. Thank you.

BROWN: Welcome to THE LEAD. I'm Pamela Brown, in for Jake Tapper.

And we start with the breaking news in the national lead. We've been watching closing arguments in the trial in the killing of Ahmaud Arbery. A racially charged case from the very beginning.

Prosecutors say three white men targeted Arbery who was jogging because he was black. The defense attorneys argue the shooting was an act of self-defense as the men tried to make a citizens arrest. Soon 11 white jurors and one black juror must decide.

CNN's Martin Savidge is live outside the courthouse in Brunswick, Georgia.

Martin, we expect to hear a rebuttal from the prosecution after this quick recess, right?

MARTIN SAVIDGE, CNN NATIONAL CORRESPONDENT: Yeah, they've got one more say. And what's interesting here is you've got two very different depictions of the exact same event. The same event that many Americans were able to see with their very own eyes. We've got the prosecution that's contending that these three defendants wrongfully assumed the worst and attacked a black man running in their neighborhood.

The defense was maintaining that, no, they were doing their job to protect their neighborhood from a person who they thought committed a crime.

(BEGIN VIDEOTAPE)

SAVIDGE (voice-over): Ahmaud Arbery's mom, Wanda Cooper Jones, joining a prayer outside the courthouse before attorneys begin their final pitches to the jury. As Travis McMichael, his father Gregory McMichael and William "Roddie" Bryan face murder charges and potential life in prison for the killing of Arbery. The state making their closing argument.

LINDA DUNIKOSKI, LEAD PROSECUTOR: This case is really about assumptions and driveway decisions.

SAVIDGE: Then one of the rare times race has been invoked in court.

DUNIKOSKI: They made their decision to attack Ahmaud Arbery in their driveways because he was a Black man running down the street. What did Mr. Arbery do? He ran away for five minutes.

SAVIDGE: And reminding them the definition of a citizens arrest.

DUNIKOSKI: They never, ever said, on February 23rd, 2020, that they were doing a citizens arrest. A citizen's arrest is for emergency situations when the crime really happens right in front of you.

SAVIDGE: Travis McMichael's defense attorney attempting to drive home the argument that his client was simply acting out of civic duty and responsibility. JASON SHEFFIELD, TRAVIS MCMICHAEL'S DEFENSE ATTORNEY: Travis

McMichael spent almost a decade of his life learning about duty and responsibility.

SAVIDGE: Arguing to the jury his, quote, duty was necessary that February day.

SHEFFIELD: This neighborhood was being covered in suspicious persons, in extra watches, neighborhood patrols, in concerned citizens.

SAVIDGE: Insisting Arbery's presence was suspicious.

SHEFFIELD: There is no evidence whatsoever that Satilla Shores was a place of exercise and jogging for Ahmaud Arbery.

SAVIDGE: Gregory McMichael's attorney continued the theme Arbery was in the neighborhood up to no good, suggesting that was obvious by his appearance.

LAURA HOGUE, GREGORY MCMICHAEL'S DEFENSE ATTORNEY: Does not reflect the reality of what brought Ahmaud Arbery to Satilla Shores, in his khaki shorts with no socks to cover his long dirty toenails.

SAVIDGE: Laura Hogue repeated over and over that Arbery was to blame for his own death.

HOGUE: He was a recurring nighttime intruder, and that is frightening and unsettling.

SAVIDGE: And William Bryan's attorney Kevin Gough arguing there wouldn't even be a trial were it not for his client, his cell phone and the video he took.

KEVIN GOUGH, WILLIAM "RODDIE" BRYAN JR.'S DEFENSE ATTORNEY: Roddie Bryan didn't shoot anyone. At the time of the shooting, he was some distance back.

[16:45:04]

He was armed only with his cell phone.

SAVIDGE: Outside the courthouse, the number of protesters swelling with the presence of the New Black Panthers, include something members who were armed. Something that drew the attention of defense lawyers on lunch break.

(END VIDEOTAPE)

SAVIDGE: And it was those armed demonstrators outside of the courthouse that caused Kevin Gough, William Roddie Bryan's defense attorney to again rise today and demand a mistrial. And again, the judge denied him -- Pamela.

BROWN: All right. Martin Savidge, thank you for that.

And let's discuss. Mark Eiglarsh is a criminal defense attorney and Charles Coleman Jr. is a former prosecutor and civil rights attorney.

Charles, want to start with you here.

So, we just heard the closing argument from Roddie Bryan's lawyer. And he seemed to be arguing that Bryan's presence there in the death of Ahmaud Arbery was insignificant. In other words, this was going to happen regardless and Bryan was not central to it. What do you make of that argument?

CHARLES COLEMAN, JR., FORMER PROSECUTOR: First of all, Pamela, I think this is interesting. This is the most lawyering that we've seen from Kevin Gough since this trial started in terms of what was actually happening in this -- the merits of this case.

That being said, I thought it was very interesting watching his theatrics throughout the entire closing. He sort of gave this vibe of being happy-go-lucky, I don't know much. I'm not very smart. My client is not very smart but here are one or two things to think about. I'm curious as to whether the jury is going to bite on that intentional tactic.

While he did do exactly what you said which is try to say, well, the outcome of this situation was not going to be affected one way or the other by Mr. Bryan's presence, there were times that he had to concede, for example, that Ahmaud Arbery was blocked in by Mr. Bryan's presence in that situation. And even though he had -- what he tried to do was say, but he was already cornered and he already realized he couldn't outrun the McMichaels and so on and so forth.

So, he did try to admit what he can't deny and then deny what you can't admit which is a staple of what you have to do in these situations as a defense attorney. I just don't know whether the jury will buy it.

BROWN: Yeah, and I want to go to you there, Mark, about the prosecution's argument. What did you think about that?

MARK EIGLARSH, FORMER PROSECUTOR: Well, she argued what needed to be argued. And that is that it was not reasonable, at all, to assume, based upon those facts, that he was committing a felony, not merely a misdemeanor because trespass, going onto the property of another, without committing some offense therein is merely a misdemeanor.

It was not reasonable for them to believe that a felony was committed. It wasn't committed in their presence. And it was unreasonable for them to act the way that they did. Then that takes away any self- defense protection under the law. I thought it was a very effective argument.

BROWN: Charles, I want to play this moment that we heard in Martin's piece. This -- you could hear an audible gasp from people in the courtroom. This was defense attorney for Greg McMichael, the father charged in this case. Listen.

(BEGIN VIDEO CLIP) HOGUE: Turning Ahmaud Arbery into a victim after the choices that he made does not reflect the reality of what brought Ahmaud Arbery to Satilla shores. In his khaki shorts with no socks to cover his long dirty toenails.

(END VIDEO CLIP)

BROWN: Arbery's mother left the courtroom after that moment. Your reaction, Charles?

COLEMAN: My reaction is that that woman did -- took an opportunity and basically characterized the late, great Ahmaud Arbery as a runaway slave. That's what she did in that moment.

Her word choice was intentional. Her descriptions were unnecessary. And the description ultimately is inflammatory.

And at the end of the day, I think this is something that was an attempt to really trigger some of the racial tropes and stereotypes that may be deeply embedded in the psyche of some of the jurors.

I found it to be in poor taste. I found even the language around making Ahmaud Arbery a victim with his choices. All of those things, while I do understand the need for the defense to shift the paradigm, I think that we have to be very clear about how we do so in a manner that does not affirm stereotypes and tropes that are tired, that are old and that are lazy. And that's exactly what she chose to do.

But it's not the first time that we've seen this throughout the course of this trial. My only disappointment, Pamela, is that it seemed like the prosecution is far more reticent to getting into the issue of race when they should have been much more aggressive about it throughout the course of the trial and especially --

[16:50:07]

BROWN: Yeah, what do you think about that, Mark? Do you think they should have been discussing race more?

EIGLARSH: You know, the prosecutors know their audience. If this case was here, let's say in south Florida, that would have come out a lot more.

My feeling is that she knows kind of the pulse of the jury. You've got 11 white people and 1 person of color in a town that has approximately 26 percent blacks. And, you know, I think there's a reason why she didn't.

I did find the defense lawyer's comments personally extremely offensive. That said, I'm going to defend her right to make it because her job is to do everything that she can to get an acquittal as long as it's within the confines of what the law allows. And that's her job.

And as outrageous and offensive as I found it personally, I know that she wouldn't have made it if she didn't think it would resonate with those particular jurors. That's what she did.

BROWN: All right. We'll leave it there.

Mark Eiglarsh and Charles Coleman Jr., thank you both.

EIGLARSH: Thank you.

BROWN: We're waiting for closing arguments to resume in the trial of the killing of Ahmaud Arbery. We're going to go back inside the courtroom live when it happens.

In the meantime, a holiday parade turns tragic. What officials just revealed about the suspect accused of killing five people while speeding through a Christmas celebration.

(COMMERCIAL BREAK)

BROWN: In our national lead, new details revealed today about the parade tragedy of Waukesha, Wisconsin. Thirty-nine-year-old Darrell Brooks has been identified as the driver. Police say he plowed a red SUV through a crowd killing at least five people and injuring 48 others. Two of those are children who are now in critical condition.

Let's go live to CNN's Omar Jimenez.

What's the latest?

OMAR JIMENEZ, CNN CORRESPONDENT: Well, Pamela, we got that update from police today on the latest on the victims. Five killed. 48 injured in total. We got the age range of those killed, 52 to 81 years old. Now, of course, this was something that even if you walk the streets here in Waukesha, it happened along this street, main street here.

Many people are still in shock. Not -- disbelieving that something like this could happen in their very neighborhood. One woman walked by and as she was describing it completely broke into tears.

Now, we know when the vehicle, the red SUV came through this route, he missed children dancing in the street by inches before, of course, plowing into people. That's when we saw the large amount of injuries and deaths occur.

At one point, first responders didn't think that they were going to be able to transport people in ambulances. We learned from the police department today that there were citizens who took it upon themselves to help transport some of the victims to the hospitals.

Of course, these very chaotic moments as they unfolded. We're also learning about Darrell Brooks. This is the suspect that police identified. The man they say was driving the vehicle as this happened.

And as we learned from police, he had just come from, as they reported, a domestic abuse incident that they've gotten a report of. By the time they got themselves together to get to that report, they were already getting reports of this vehicle driving through the street.

And I should also mention that in regards to this case, he has his first initial court appearance tomorrow where police have said they are going to be referring five counts of first-degree intentional homicide, Pamela.

BROWN: So what is the latest on the investigation into brooks? Anything more we know about that?

JIMENEZ: Well, that's the interesting part. That, of course, the tragically interesting part that, of course, this incident alone is devastating. But when you look earlier this month, he actually was released on the thousand dollars bail in relation to charges that include domestic abuse after he allegedly ran over a woman with his car in a gas station parking lot.

Now, the Milwaukee county district attorney's office is saying today that that bail amount was inappropriately low and that they are launching an internal review because of that. So, of course, a lot of factors to deal with outside of just this very accident very tragic Christmas parade incident, Pamela.

BROWN: OK. Omar, thank you so much.

And I actually want to circle back to Mark Eiglarsh and Charles Coleman who we had on earlier about the Ahmaud Arbery case. The judge just spoke. They came back from their recess. And he said he is now -- they're done for the day and that the prosecution's rebuttal will be tomorrow now because the defense attorneys' closing arguments took so long.

Charles, what do you think about that?

COLEMAN: I think the longer that this takes, timing becomes more of an issue. At the end of the day, we are going to consider when is the jury going to get this case? Are they going to get it before Thanksgiving? In which case there's going to be a significant gap before they come back with deliberations or is the judge going to opt to wait until after the holiday to give them a charge?

The ecosystem of a trial is delicate. There's a lot that has to go right that you can't control. So that's going to be an interesting thing to watch going forward.

BROWN: What do you think, mark?

EIGLARSH: When they deliberate does not matter. The facts don't change. They chased after a guy who I don't think they reasonably believed committed a felony and as such, they'll lose their self- defense protection, and let's see what the jurors do.

BROWN: All right. We shall see. Thank you so much. Mark and Charles, we appreciate it.

I'm Pamela Brown, in for Jake Tapper today. Our coverage continues right now.