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Closing Arguments Underway For Three Men Charged in Ahmaud Arbery's Death. Aired 10-10:30a ET

Aired November 22, 2021 - 10:00   ET

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

[10:00:00]

LINDA DUNIKOSKI, PROSECUTOR: And it's not beyond all doubt or through mathematical certainty, no, no, no. It's just beyond the reasonable. That's the burden that the state has.

All right, so, the evidence, the first thing you're going to want to do is determine what really happened based on the evidence, but a lot of the evidence isn't in dispute, right? I mean, we know what days Larry English called the police. We know when we had videos. We know this was on February 23rd. The homicide is on video for the most part, okay. A lot of these things are not necessarily in dispute. What's in dispute is were they making a citizen's arrest so that they were justified in committing these felonies against Ahmaud Arbery and then murdering him? I mean, that's really what they're arguing about here.

So, remember, it's not of the gun (ph). Glynn County Police arrived very quickly. You heard the shots, the defendants all made statements at the scene, immediately after. They're making statements. They're saying stuff to the police. Then a couple hours later, the defendants are all down at the Glynn County Police Department also making statements.

But here's the thing, but you have got to ask yourself, were these self-serving statements? I mean, think about it. The very first thing that we showed you was Duggan's body cam video. It was hard, right? But you have got to realize Travis McMichael is seen right behind Duggan when he rolled Mr. Arbery over. That's what he saw. That's what Greg McMichael and Mr. Bryan saw.

So, then you have got to think to yourself, okay, what's going on in their heads? There's a dead man in the street. Travis McMichael has just shot him, okay? The police are on the scene. There's now a video of it. So, are their statements a couple hours later self-serving? You decide. The GBI did their investigation starting on May 5th, 2020, followed by the arrests.

So, first off, the credibility of witnesses, that is for you to determine who you believe and who you don't believe, okay? So, what that means is you're the one who decides whether Travis McMichael was telling you the truth or lying to you, right?

So, let's talk about some of the defense witnesses. Annabelle Beasley, what did she do when she got off the stand? She walked over here and waved at them and she walked off the stand. I mean, I know you all saw that, right? Okay, so, Annabelle Beasley, Dean McMichael. Sube Lawrence, who is she? Boy, team McMichael. I mean, even after the shooting, she and Brooke Perez and Diego Perez, they're going out on the boat with Greg and Lee McMichael. They're still hanging out with them. Okay, team McMichael. Mark Perez, team McMichael, up until February 11th.

And then what did she tell will you? Her husband, Diego Perez, had had it with this, had had it with Larry English not calling the police, had had it with helping out Larry English, he wasn't going to do it anymore because this was not cool. Why was it not cool? Because Diego Perez went inside that house with his flashlight, and Greg McMichael came up and went in the house.

What was Brooke doing? My husband's in there. My husband's in there, all right? Well, Greg McMichael had his gun. Travis McMichael told you that. He had his gun. Diego had his gun. Brooke had her gun. Everybody had a gun. Everybody in this case had a gun except Ahmaud Arbery.

And so what almost happened? I mean, come on, let's get real. It's a miracle Diego Perez and Greg McMichael didn't kill each other inside that house, right, pulling guns out. And that was it. What did Brooke tell you? No more, not doing this anymore. You determine the credibility of those witnesses.

Now, when you consider Travis McMichael and his testimony, here's some things you want to look at. The judge is going to tell you, these are the things you consider, the manner of testifying, evidence of bias for or against a party. Does he have bias for or against Greg McMichael? It's his dad, okay? Motive in testifying. Yes, he wants you to come back with a not guilty verdict. It's in his best interest.

Think about the probability or improbability of their testimony. I wondered why he was attacking that truck on Holmes. What are you talking about? I have no idea. I mean, do you guys understand what he was getting at? I mean, I guess we're back to Ahmaud Arbery is a carjacker. Their interest or lack of interest in the outcome of the case mean do they have something to gain or lose by coming in here and making up a story for you? Their personal credibility as you observe it, that's for you to decide, not for the state to decide, not for the defense to decide, for you to decide.

All right, so, did Travis McMichael have a motive to lie to you? Did he have a motive to make up additional things that he had never said before, all right? Did he have a motive to embellish his testimony? Did he have a motive to claim he now was confused on February 23rd, 2020?

[10:05:00]

Isn't that convenient? Wow, it was the most traumatic -- yes, and I don't dispute it was probably the most traumatic experience of his life. How did Mr. Arbery's day go for him, all right? Most traumatic experience for Travis McMichael, so he's all confused but did manage to write out a three-page statement and immediately put down on January 1st, my gun was stolen, had all sorts of contextual details in that statement. Did he have a motive to use talking points, okay? Ladies and gentlemen, did he come up here -- how many times did he say, totality of the circumstances to you? Did he have his talking points down a year and nine months later? That's for you to decide.

The defendant's story, the law allows you to disregard his testimony from the witness stand if you don't find it credible.

UNIDENTIFIED MALE: (INAUDIBLE).

DUNIKOSKI: The law allows you to consider as the actual real evidence his actions at the time of the murder if you don't find him credible.

Intent to commit a crime, well, ladies and gentlemen, you've got to find that they intended to commit these crimes, and how do you look at that? Well, you look at the natural and necessary consequences of the act, right, natural and necessary consequences of an act. Deadly force is the last resort. Never point a gun at someone you do not intend to shoot. So, when you start pointing a shotgun directly at somebody, what's your intention? The natural and necessary consequence of the act, you're going to kill this person. You're pointing at it.

The defendant is not going to be presumed to have acted with criminal intent, but you may find intention or the absence of intention upon consideration of their words, their conduct, what did they do out there, their demeanor, their motive and other circumstances. So, when you look at each defendant separately, because that's what you're going to do, you're going to get three separate verdict forms, when you look at Mr. Bryan, what were his words, what was his conduct, what's his motive, what were circumstances there for Mr. Bryan? What were they for Greg McMichael? What were they for Travis McMichael?

All right, so what we're going to do now is we're going to talk about the charges in the indictment, all right? I'm going to make a suggestion to you. This may help you. Start at the bottom of the indictment, all right? In your deliberations, start with criminal intent and false imprisonment. It's just easier. Just work through that one, work your way on up, then to felony murder, then to malice murder. Just -- it's a suggestion.

So, what have we got? Criminal intent to commit a felony, which is false imprisonment. What's an attempt? That's when you perform an act which constitutes a substantial step for the commission of said crime. Mr. Bryan pulled out of his driveway and ran him into a ditch. Mr. Arbery was able to keep running. Right there, criminal attempt to commit false imprisonment.

Criminal attempt to commit false imprisonment, this is what it says in the indictment. What do you have? In violation of the personal liberty of Mr. Arbery, okay? Guess what? We're citizens of the United States, right? We live here. We have personal liberty, because this is a free country. Other people can't pull up and stop us and hold us and detain us, okay? They have to actually have seen us commit that crime in order to effectuate a citizen's arrest. So, you go around and you start stopping people, you're doing that in violation of their personal liberty. And what do they do? They unlawfully chased Ahmaud Arbery through the public streets of Satilla Shores in pickup trucks and attempted to detain and confine him without legal authority using an F-150 pickup truck and a Chevy Silverado pickup truck. We all know that's what they did.

False imprisonment, now this is over on Holmes, in violation of the personal liberty of Ahmaud Arbery, to have lawfully confined and detained Ahmaud Arbery without legal authority, once again, did not see him to commit any crime, not a citizen's arrest. They are not law enforcement officers. They are not in a marked patrol car. They are not with badges on their arms. They're not in any uniform, without legal authority. Said accused did chase Ahmaud Arbery with an F-150 pickup truck and a Chevy Silverado pickup truck on the public roadways of Satilla Shores neighborhood and did confine and detain him on Holmes.

Travis McMichael said he was pinned between the two trucks. Greg McMichael said he was trapped like a rat between the two trucks.

[10:10:01]

The ultimate false imprisonment, he never left Holmes, did he? He never left Holmes.

Aggravated assault, did make an assault upon the person of Ahmaud Arbery with a Ford-150 pickup truck and a Chevy Silverado pickup truck. I got legal note here for you, okay? You know how it says and, okay, but what do we know? Mr. Bryan is driving the Silverado, Travis is driving the Ford F-150, Greg McMichael is in the passenger seat at first, then he's in back of the truck. So, of course, it doesn't mean and, it's or, okay? I know it sounds crazy. Don't you love lawyers? Don't you just love lawyers, okay? And means or. So they way you should read this is with a Ford F-150 pickup truck or a Chevy Silverado pickup truck, okay?

So, what are pickup trucks? They are objects, when used offensively against someone, can result in serious bodily injury or death. You hit somebody with an F-150 pickup truck intentionally, you hit him with a Silverado intentionally, are you going to hurt them, break a leg, paralyze them? You could even kill them. We all know that, hit-and- runs, right? Pickup homicides, we all know this, and the medical examiner told you so.

Actual injury to Ahmaud may not be shown for aggravated assault with pickup trucks. The judge is going to instruct you. You don't have to actually hit the person. You don't actually have to injure them for it to be aggravated assault. What you have to do is place that person in reasonable fear of receiving a violent injury.

This is really important, ladies and gentlemen. Did defendants commit acts with their pickup trucks that placed Ahmaud Arbery in reasonable fear of receiving serious bodily injury? Yes. Yes, they did. We know Mr. Bryan did. He ran him into a ditch then tried to go at him again, then another time, then backed up for him. Now, what did Travis McMichael beyond the stand had said? Oh, I just pulled up next to him. No, I didn't startle him. No, he wasn't afraid of me. Do you believe any of that stuff? Just look at the night owl video. Look at how Mr. Arbery tries to get away from them, and then look at them speed up after them. That's all you have to do is look at that night owl video and you'll know that they put him in reasonable fire of receiving serious bodily harm, violent injury, aggravated assault with the pickup trucks.

Aggravated assault in count six, did they assault upon the person of Ahmaud Arbery with a firearm, a deadly weapon, that 12-gauge pop shotgun with seven already in it? Two steps, pull the trigger. That's all you have got to do. The evidence is that the defendants attempted to cause a violent injury to the alleged victim by shooting him. That's aggravated assault with a shotgun.

Now, I want to be really clear, okay? Travis McMichael does this with the shotgun. We see it on the video. This is the beginning of the aggravated assault, beginning of the aggravated assault. The aggravated assault continues as he steps away from his car door and blocks the road. Now, what did he say to you? Putting distance between me and Mr. Arbery. Was he putting distance or was he blocking the road? You decide.

Then what does he do? He doesn't stay right there, does he? We can't see this, but what do we know? He makes it around that car door, right, he makes it over here, right, he's in front of his truck, and he's moving forward, closing the distance on Mr. Arbery, intercepting Mr. Arbery, and is right here with that shotgun. It wasn't court arms (ph), like this. It was right like this. And how fast does Mr. Arbery come around the corner and, boom, shoots him. That is one continuous aggravated assault ending in the shotgun blast to his torso right here, came out right here, all right?

So, how was he when the shotgun hit him? Like this, right? Got it across the wrist, got it right in the torso, came out right here, so he's turned like this, according to the medical examiner.

Felony murder. Felony murder is when you commit a felony and someone dies because of the felony. Classic felony murder scenario, guy goes into a convenience store to rob the convenience store. He's not there to murder anybody. He's not there to kill the clerk. He doesn't know the clerk but he's got a gun, right? So, what does he do? Pulls out the gun, just pointing it at the clerk, and the clerk is like, and what does the clerk do?

[10:15:02]

The clerk goes and tries to hit the gun away and starts punching the armed robber, right? And then what does the armed robber do? Boom, kills the clerk. It's committing a felony you cannot claim self- defense, you've now murdered the clerk. Because during the felony that you were doing, you pointed -- you were doing an armed robbery, you were pointing a gun at somebody.

You expect when you're committing felonies people, are going to fight back, right? The (INAUDIBLE) are entitled to fight back, right? Imagine if armed robbers could come in and go, well, I had to defend myself against the victim of my crime. Could you imagine if that was the law, right? Isn't that what they're saying? How dare Mr. Arbery defend himself against their four felonies? Isn't that what they're saying to you?

So, felony murder, let's take a look at it. What is felony murder? The felony murder, the state must prove that the defendant caused the death of another, check, by committing a felony, check, you have got four of them, do not need to show malice, okay, meaning intent to commit the death of somebody, like the guy who showed up at the convenience store, he's not there to murder the clerk, did not need to show he intended the death with the felony.

What we have to show is this, that the felony directly caused the death, he pulled the trigger on the shotgun, aggravated assault with a shotgun, yes, immediately caused the death, right? That's a no- brainer. But what about the other three? You're sitting there thinking, okay, Linda, what about the other three? What are we really talking about here? Did the other three felonies, aggravated assault with the pickup trucks, false imprisonment, criminal attempt at false imprisonment, did they play a substantial and necessary part in causing the death? The state's position is, yes, they did. In other words, but for this felony being committed, the death would not have occurred. It's really easy. But for the felony being committed this death would not have occurred.

All right, when does this really apply? The defendants are in the process of committing a series of felonies. They're doing it together at the same time. The defendants shoot Mr. Arbery during the commission of felonies. Did that felony committed against Mr. Arbery ultimately contribute and lead to his death? So, how do we look at this? Aggravated assault with the shotgun, yes. Pointing that shotgun at him, having him run away around the side of the car, Travis McMichael intercepting him with the shotgun and then shooting him, definitely aggravated assault, felony murder.

Aggravated assault with pickup trucks. Well, once again, what do we have? Would he be dead if he hadn't been pinned between these two pickup trucks? Think about this. If he made it at Holmes and over on Zellwood, he would have run out, right? If he hadn't been pinned between the two pickup trucks on Holmes with Mr. Bryan running him towards the white pickup truck, would he still be alive? Yes.

Their use of the pickup trucks to go ahead and commit aggravated assault on him, put him in fear of them and their pickup trucks, meant he was running away from them. You saw it, running away. Did their actions, were they such that they put him in reasonable fear of receiving bodily injury? And did that contribute to him ending up where he ended up and his death? Yes, it did.

Felony murder, false imprisonment on Holmes, that's what we're talking about. Did they falsely imprison him on Holmes? We've already gone over it. Had him pinned on Holmes, trapped like a rat between the two pickup trucks, according to Greg McMichael, he's still, after five minutes, running away from them. If they hadn't done this, they hadn't done this on Holmes, would he be alive? Ask yourselves that. If the answer is, yes, felony murder, check it off.

Criminal attempt and false imprisonment. So, you're thinking, well, Linda, seriously, okay, that was on Burford. Yes, they pulled up to him, hey, stop, we want to talk to you. He runs away. They pull forward. They go down to the end of river. He then runs away from him again. They're trying to falsely imprison him over there. Did that contribute to it? Yes, because that's when they began their attack. They're using the pickup trucks over on Buford to put him in reasonable apprehension of receiving serious bodily injury, to put him in fear with their actions. What does Mr. Bryan do? He tries to -- he doesn't try -- actually runs him into a ditch, runs him into the ditch.

Aggravated assault. So, what's Mr. Arbery doing? We know, he runs away from them and runs away from them and runs away from them because they have tried to falsely imprison him on Burford and they've used these pickup trucks to do it in a manner that's likely to cause him fear.

[10:20:04]

But we don't know what was going through his head. Nobody knows. That would be speculation. But you're allowed to look at it and go, were their actions such that it would put a reasonable person in fear of getting hurt? That's what you want to ask yourself. Those are the felonies in the indictment.

So, malice murder, what is malice murder? Well, caused the death of another person unlawfully and with malice aforethought. Now, malice aforethought is not ill will or hatred, it's not like what we think of, no premeditation is required, okay? Rather, it's the unlawful intention to kill without justification, okay? Well, what's justification? Justification is self-defense.

Deliberate intention to kill is one way you see malice murder. I'm deliberately taking your life. I'm killing you. How do we usually think about that? Well, you're out to get somebody. You want the husband murdered for the insurance money. You're going to go ahead and execute somebody. You're mad at somebody. You're enraged at somebody. You intend to kill them. That's deliberate intention, right? But there's another kind of malice, and that's implied malice. You are allowed to consider this when looking at malice.

You may also find malice when there does not appear to be significant provocation and the circumstance of a killing shows an abandoned and malignant heart. Don't you love lawyers? What the heck is an abandoned and malignant heart, right? Well, think about that. You just don't care. You just don't care what you're doing. You want to do what you want to do, and whoever you're doing it to had better be okay with it. I'm going to order you to stop and talk to me, and if you don't, I'm going to pull a shotgun on you. And, hey, you're still going to run away from me? Yes? I'm going to come at you. I'm going to intercept you over here at the corner. How dare you turn on me? Bam. Malice, right there.

Remember, Mr. Arbery had to have engaged in significant provocation. What did he do? What did Mr. Arbery do? He ran away for five minutes. He ran away from them. He ran away from them for five minutes. That's what he did. His hands at his sides and the baggy shorts he had on, no weapon, no threats, no way to call for help, didn't even have a cell phone on him, ran away from them for five minutes.

The state doesn't have to prove premeditation. The state does not have to prove motive, okay? Not required to explain to you why they did what they did. You know what they did. Some of you may know why they did it. But the state does not have to prove exactly why they did what they did.

The indictment, here's the thing. How in the world could Defendant Bryan be held responsible if he was in the Silverado filming all this, right? How can Greg McMichael be held responsible if he's in the back of the truck finally on the phone with 911 when the shots rang out? Well, it's called party to a crime. That's what it's called.

So, what's party to a crime? Well, ladies and gentlemen, let me ask you this. Do you think that everyone involved from the person who actually commits the crime to someone who encourages or enlists someone to commit the crime to someone who helps commit the crime should be held responsible under the law in Georgia? Do you think that that sounds reasonable?

Well, guess what? The law does. The law says everybody involved is guilty, okay? A person is a party to a crime only if that person directly commits the offense, driving the trucks, pulling out that shotgun, attempting to falsely imprison, helping to track somebody by pinning them between two pickup trucks, running towards somebody a man with a shotgun, all directly committing or helping in the commission of the crime or advices and encourages.

Well, what's advising and encouraging? Hey, Travis, get your shotgun. That guy is outside. Not, hey, Travis, I need to call 911, that guy is outside.

[10:25:01]

Let's get our guns and let's jump in the truck, encouraging, advising. Cut him off, cut him off, cut him off, that's what Greg McMichael said. So, that's what we've got.

Ladies and gentlemen, how do you really want to think about this? Everybody gets a Super Bowl ring, right? The quarterback gets a Super Bowl ring, the guys on the field get a Super Bowl ring, the dude on the bench gets a super bowl ring, right? Everybody is involved. Everybody is responsible. That's what the law says.

Cooperation after the fact. Now, this applies to the defendants but mostly Mr. Bryan, because this was brought up when he was talking with Agent Seacrist and everything. So, first off, cooperation after the fact doesn't erase the crime you committed. Bryan did film the murder on his phone. He gave the phone over and the video right away to the police. He made statements to the police at the scene, at Glynn County. He then goes and makes additional statements to the GBI in May of 2020. He consented to have his home night owl video downloaded. Guess what? It doesn't matter. Cooperation after the fact does not erase what you have done, okay? That would be like two teenagers shoplifting at Walmart and one is telling the other, hee, hee, hee, both of them stuffing bikinis into their bag, right? The fact that one of them hands over her video of her girlfriend doing it, does that something that will make her not guilty of stuffing a bikini in her own bag? No. You still did the crime. You still have (INAUDIBLE) afterwards, still are responsible for your actions. This is about responsibility.

All right, we are going to transition right now, I'm going to take a breath, and we're going to transition into self-defense and citizen's arrest.

How's my time?

A person is justified in threatening or using force another against person when and to the extent that he reasonably believes that such threat of force is necessary to defend himself or a third person against the other's imminent use of unlawful force.

Wow. That's a mouthful, right? Yikes. Okay, let's break it down. Travis McMichael had to reasonably believe that it was absolutely necessary to defend himself, and, of course, he threw in his dad, okay, which he never mentioned before at any point in time, but he threw him in on the stand against the other imminent use of unlawful force. That mean Mr. Arbery had to be right there imminently using unlawful force against Travis McMichael, okay? It's the doctrine of reasonable beliefs, and the judge is going to go ahead and charge you on this. In other words, the belief that you have got to defend yourself, that it's life or death right here, right now, has to be reasonable, okay?

Guess who this standard applies to? Just take one guess who this standard applies to. Everybody. It applies to you. It applies to law enforcement. It applies to military people, okay? It applies to Jason Bourne, Secret Service, CIA, FBI, it applies to everybody. There is no special exception for, I was in the Coast Guard. There's no special exception for, I used to be a law enforcement officer. The reasonableness applies to retired law enforcement officers just like as it applies to anybody, a manager of a store, okay, plus the (INAUDIBLE). In other words, the reasonable standard is set by society. You all decide whether this was reasonable or not.

Travis McMichael's belief that he had to defend himself with lethal force has to be reasonable. So, we've got pointing a shotgun at Mr. Arbery when he's yards and yards away, had to be reasonable and necessary. But where is the imminent use of unlawful force by Mr. Arbery? What was he doing? He's running away from Mr. Bryan's truck. Mr. Bryan has already tried to hit him with the truck numerous times. He's trapped between two cars with no weapon, no way for anyone to help him because there's nobody out there to help him. He's not threatening anybody. He's just running away from the man with a shotgun.

[10:30:00]

Look at this. I mean, take a look at this. He's not even up to those mailboxes on the side.