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Closing Arguments Continue In Ahmaud Arbery Trial. Aired 3- 3:30p ET

Aired November 22, 2021 - 15:00   ET

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

[15:00:02]

MARK O'MARA, CRIMINAL DEFENSE ATTORNEY: So, what the state has to do is, you must take it in context.

And I thought she did a very good job of saying, look, you can't be the aggressor. You can't start all this. You can't be the person who puts all of this in play, and then, at the last minute, go, time out, now I get to argue self-defense.

And I thought that she hit that pretty well. And I'm really looking forward to what she's going to say on rebuttal, because it needs to be brought home again.

ALISYN CAMEROTA, CNN HOST: Eric, on the flip side, what -- one of the defense attorneys who we earlier heard from said there's been a lot made of, how could they say that they were effecting a citizen's arrest when they never mentioned that, they never mentioned that to the police, you don't hear them saying that on tape?

And she said, there are no magic words that you need to utter while you effectuate a citizen's arrest. So how do you think both sides are playing today?

ERIC GUSTER, CRIMINAL AND CIVIL TRIAL ATTORNEY: I believe that the defense came up with that theory after the fact.

I mean, these guys went and pursued Ahmaud. They chased him down, three guys in a truck, and saying, hey, I want to talk to you, hey, stop and I will talk to you or I blow your F'ing head off. That's not a citizen's arrest. That's not saying, hey, stop, we're calling the police.

They want to attack him and deal with him on their own. That is vigilantism. And we have to be very, very mindful that a person does not have -- does not have to stop and talk or answer questions of anyone. So this is a very, very sad case where they took the law in their own hands. They did the thing that was illegal, and they have killed this man, which that's what Ahmaud feared, these people are going to hurt or kill me, and they ended up killing him.

And it's a sad, tragic situation.

CAMEROTA: Elie, the another thing the prosecutor did was talk -- basically depict the defendants as schoolyard bullies. So let me play that part for everyone.

(BEGIN VIDEO CLIP)

LINDA DUNIKOSKI, COBB COUNTY, GEORGIA, ASSISTANT DISTRICT ATTORNEY: You can't provoke someone into defending themselves against you, so that you can intentionally harm them and then claim self-defense.

OK, what's that about ladies and gentlemen? Think of your schoolyard bullies. Think of the three boys walking behind the one who's the target kid who's getting abused, right, OK? So you got three on one. They're going down the hallway. They're menacing him, maybe threatening him. They get him up against a locker, and he has nowhere to go. He's trapped. Right?

So what does the kid who's being bullied do? He takes it, and he takes it and takes it until he can't anymore. And he finally shoves the one bullying. And what does that bully do? Bam. Punches the target child, right?

What's the bully always say? He started it. Isn't that what the bully always says? He pushed me. I was defending myself. Yes, three on one with one kid up against a locker, you're bullying him.

(END VIDEO CLIP)

CAMEROTA: How did that play, do you think, with the jury?

ELIE HONIG, CNN LEGAL ANALYST: I think that was very effective.

First of all, that kind of basic, commonsense comparison, the schoolyard bully, I think the jury can relate to that. Any normal person can relate to that. And what the lawyer is doing there, the prosecutor, is bringing together this idea of initial aggressor.

And the law basically says, if they started this, the violence here, they grabbed their guns, they didn't have a legitimate, solid basis to think a crime was committed and make this citizen's arrest, then they can't complain, no matter what he did, even if he sort of initiated contact, which it's not clear he did, with Travis McMichael.

So she's arguing, if they started it, they can't argue self-defense.

CAMEROTA: Mark, we are in a break right now. But we understand that the jury is being brought back in. They're about to hear from the third defense attorney.

So, only one of the defendants took the stand. But there are three defendants, three defense attorneys, what should we expect?

O'MARA: Once again, just try and show sort of the State Farm defense, right, the good neighbor defense. We were just trying to do what we thought we had to do protect you and the neighborhood, protect everything that we wanted to do, nothing wrong. If only he would have stopped and talked to us, in fact, saying it's all his fault. And, again, they have got to get that point across because they're the

ones who have to show that reasonable doubt exists. And if they do, they make the jury's job much more difficult for a conviction. And it's already going to be difficult with the jury makeup and the geographical location where we are.

CAMEROTA: OK, gentlemen, let's listen in. They are beginning again.

KEVIN GOUGH, ATTORNEY FOR WILLIAM "RODDIE" BRYAN JR.: ... know the McMichaels brought guns? When did Roddie Bryan know Travis McMichael would shoot Mr. Arbery?

And at that point, what could Roddie Bryan have done to stop it? The inconvenient truth is that Roddie Bryan did not know and could not know that these men were armed until moments before Mr. Arbery's tragic death. He did not know and could not know that Arbery would be shot. And by that time, sadly, there was nothing Roddie Bryan could do to prevent this tragedy.

Roddie Bryan didn't shoot anyone. At the time of the shooting, he was some distance back. He was armed only with his cell phone. Isn't it time, isn't it time, ladies and gentlemen, that we send Roddie Bryan home?

[15:05:12]

Roddie Bryan fully cooperated with the police. He's given several different statements. He's provided the now famous video that you have seen so many times and probably will again before we're done. Roddie provided his cell phone multiple times.

He signed all kinds of consent forms. He gives them access to his truck. He gives them the Night Owl videos from his house, the videos that had been overlooked in the canvassing of the neighborhood because he was down at the police station.

He gives them his social media. He gives them his Facebook. Ladies and gentlemen, without Roddie Bryan, there is no case. You will have to decide what justice looks like between the McMichaels and Mr. Arbery, between the McMichaels and the are Arbery family.

But the reason that you can do so, the reason that we can have this trial is because of Roddie Bryan.

Roddie's decision to cooperate with law enforcement, to help them discover the truth about the events of February 23, 2020, is not the product of slick lawyering. Roddie Bryan had no lawyer on the side of the road in the minutes after Ahmaud Arbery was shot.

It was not some lawyer. It was Roddie Bryan, without any lawyer, without any help, without any assistance, making that decision on his own. Roddie Bryan made the choice. Roddie Bryan decided to invite Officer Minshew to sit with him in his truck even before Roddie Bryan has a chance to look at the video himself, all this, again, without a lawyer.

These actions, ladies and gentlemen, demonstrate good faith. His conduct negatives any inference of criminal intent.

Who is right Roddie Bryan? Roddie never served his country like Travis McMichael. Roddie never served his community like Greg McMichael. Roddie is a quiet man. Roddie repairs small engines at the local hardware store. Roddie he knows most of the English language, or so he believes.

Roddie Bryan keeps to himself. His neighbors don't really even know who he is, even though he's lived in the neighborhood for three years. Roddie is not boastful or a braggart. He is not loud or boisterous. He is not an attention-seeker.

Roddie tries to avoid bad language, not always successfully. Roddie is respectful. He's an ordinary guy, a regular guy. Roddie Bryan is no vigilante. There's no evidence of that. Roddie isn't running around Satilla Shores with guns openly carried in broad daylight. He didn't even bother to report the theft of his own trailer. After all, it's just stuff.

That's what insurance is for. The Amish have a saying, what you take into your hand, you take into your heart. Roddie Bryan grabbed his cell phone. That's not intended as a comment upon anyone else. But that's just who Roddie is.

What else does the evidence tell us about Roddie Bryan? Is Roddie Bryan the smartest guy in the room? Is he like some kind of rocket scientist? In these interviews that Mr. Bryan gives to the police, is there some clever wordplay like Mr. Bryan is smarter than everybody else? Is that what the evidence suggests in this case?

The evidence suggests that Roddie Bryan legitimately struggles to find the right words, that Roddie struggles at times to convey the meaning, the truth behind those words. There is no evidence that he is a wordsmith, no evidence that Roddie was playing word games with law enforcement officers. He simply can't find the right words.

The evidence in this case shows the context is key. If you honestly seek the truth here, which is your duty as jurors, if you listen carefully, you will see that what Roddie Bryan means, as opposed to simply hearing his actual words, it is clear that he never wished to hit Ahmaud Arbery.

Why the prosecution felt it necessary to phrase the things the way they did in their opening statement, Ms. dun Dunikoski will have to answer to you for.

[15:10:10]

I was unable to play it earlier, but we are now going to try and play the excerpt from the interview with Mr. Lowrey, specifically that most damaging part of his statement where he supposedly wishes that he had hit Ahmaud Arbery.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: You said that you had -- you had handprints on the truck where the guy was trying to get into it?

WILLIAM "RODDIE" BRYAN JR., DEFENDANT: I feel pretty sure that's what he was doing.

I mean, I can't say for sure that he wasn't on the door. I didn't give him a chance to get to the door. But after I angled him off the side of the road and I kind of went past him, because I didn't hit him. Wish I would've. Might took him out and not get him shot. But I probably kind of got past hi ma little bit.

And he come up on me and I could see him in the mirror. And he was coming for the door. And I seen his hands on right behind the door.

(END VIDEO CLIP)

GOUGH: Ladies and gentlemen, in the video, as opposed to the officer'S testimony, you can see Mr. Bryan's demeanor. You can see his gestures and his mannerisms.

And you can see that when he says that he wished he hit Mr. Arbery, he said that just after he says that he didn't hit him. And he's expressing regret, because Mr. Arbery has died. And maybe, if he hadn't gotten down where he was, he wouldn't have been shot.

That is much, much different in context than to suggest that Roddie Bryan wished that he had hit Mr. Arbery. That's a reflection of regret that Mr. Arbery was hurt by the McMichaels. That's certainly not a suggestion that he bore any ill will.

And how many other instances of that do we have in this case? How many other times has the district attorney's office fired cheap shots at Roddie Bryan? How many times have the GBI taking cheap shots at Mr. Bryan?

And in the end, you may wish to ask yourself why.

Now, in the defense case -- and we're not -- we didn't do it. We promised we wouldn't. But it's clear that Mr. Bryan did not wish to strike Mr. Arbery, that he never had any intention of hurting Mr. Arbery. He never said anything to the contrary. The evidence will show that he had no knowledge, no reason to believe that anyone else out there meant to hurt or shoot Mr. Arbery.

If they had a secret intention or desire to do that, it could not be known to him. Now, there is another excerpt that I want to play from the Minshew video, only one, OK, because, again, I think it shows you Mr. Bryan's demeanor.

It has been suggested by the state that much of what Mr. Bryan says later is somehow an after-the-fact rationalization of what happened that day. But when you listen to this, I think you will see that Mr. Bryan's -- the truth of what Mr. Bryan is trying to convey hasn't really changed.

Obviously, there's a reason we all don't play more of these.

Go ahead, young lady.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: What did it look like he was trying to do?

He was trying to get on this side of the car, right? What did it look like he was trying to do? What...

BRYAN: I mean, I cut him off pretty good now. But...

UNIDENTIFIED MALE: He actually pull with your handle?

BRYAN: I wouldn't be surprised if that (INAUDIBLE) right there.

UNIDENTIFIED MALE: OK.

BRYAN: He was trying to get the handle.

UNIDENTIFIED MALE: OK.

BRYAN: Yes.

UNIDENTIFIED MALE: All right. All right. Did -- nobody got this on video? You just witnessed it, correct?

[15:15:01]

BRYAN: Yes, I got it.

UNIDENTIFIED MALE: You got it on video?

BRYAN: I ain't looked at it.

UNIDENTIFIED MALE: OK.

BRYAN: You ready?

UNIDENTIFIED MALE: Yes, sir.

BRYAN: Yes.

(CROSSTALK)

UNIDENTIFIED MALE: At what point did you start videoing?

BRYAN: Well, I thought he was going to get away.

UNIDENTIFIED MALE: OK.

BRYAN: So that was...

(CROSSTALK)

UNIDENTIFIED MALE: So, you was getting -- trying to get -- capture who he looked liked?

BRYAN: Yes.

I mean, to be honest with you, I probably got two videos, three videos. I mean, it probably started over here. I don't know what I got, because half the time I was trying to drive.

UNIDENTIFIED MALE: OK. OK.

(END VIDEO CLIP)

GOUGH: It was suggested that Roddie Bryan made up the idea that he was trying to preserve Mr. Arbery's identity, that he was trying to preserve it because he thought he was going to get away. It's been suggested that that's not what was going on.

But yet here, on the side of the road, with Officer Minshew, Roddie Bryan says within minutes of the shooting that that's exactly what he was trying to do.

We have one video in this case. Well, we have two, a shorter version of the one you have seen. But when Mr. Bryan is talking with Officer Minshew, he hasn't had a chance to look at his phone. He hasn't had a chance to see what he has. He thinks he has two or three videos. He thinks he's caught much more than he had.

Now, either you believe that Roddie Bryan is the smartest person in this room, that he's playing games and manipulating the police from the moment this has happened, or you know that Roddie Bryan had good faith from the start, that he tried as best he could to help the police.

Maybe it would have been better if he had been able to record more, if he knew better how to operate his phone. But the idea that somehow Mr. Bryan is -- quote, unquote -- "minimizing" his involvement in this case, had he recovered as much video as he thought he had, he might have had the whole thing on video.

And he's giving it to the police. He's inviting Officer Minshew to sit with him in the car, to look at it with him for the first time, not with some slick Cobb County lawyer, by himself. That tells you that Roddie Bryan is not guilty, because unless you think he's smarter than everybody else in this room, that he's smarter than all these police officers, that he's smarter than the cream of the crop, the creme de la creme of the GBI, then he's trying to tell you the truth. He just can't always find the words.

And to hear again all this stuff about Mr. Bryan about all these things that happen, we will come back to that later. But when you look at the Lowrey interview, when you look at Mr. Minshew -- the Minshew discussion on the side of the road you know. You know what the truth is here.

Now, if I'm out of order, I'm sorry. But, again, as I have said before, the events of this day from Mr. Bryan's perspective are chaos. Mr. Bryan doesn't know what happened up the street at the English residence. He doesn't know Mr. Albenze is out there. He doesn't know Mr. Albenze has called 911. He assumed somebody has called 911. And he was correct, but he doesn't

know. He doesn't know that Mr. Albenze is armed and just up the street. Mr. Bryan is not in communication with anyone prior to the shooting, not Mr. Albenze, not Diego Perez, not Gregory or Travis McMichael.

At times, as you have heard, Mr. Bryan feels like he's alone out there with Mr. Arbery. And it scares him.

Roddie Bryan doesn't see any guns until the moments before the shooting. We will come back to that. I think, if I recall correctly, testimony was, although you can see -- and you will see in a moment -- Greg McMichael standing in the back of the pickup truck in the moments before the shooting, Mr. Bryan, on that day, doesn't even recall Gregory McMichael being in the back of the truck.

He doesn't realize Gregory McMichael is in the back of the truck until later, until afterwards.

Roddie Bryan thinks that it takes the police several minutes to arrive on the scene, when we know it was a mere -- it was mere seconds. Roddie gets so many basic facts wrong, so many key facts, is it any surprise that, months later, he would struggle to recall details of what happened that day, when he couldn't recall big, obvious details right at the time it happened?

[15:20:08]

Let me shift gears for a moment.

Closing statement is sometimes referred to as closing argument. Let me assure you, I don't want to argue about you with the evidence. First of all, there is 12 of you. There's only one of me. And you can -- you get the last word.

Second, lawyers, we tend to remember things, frankly, sometimes, the way we wanted them to be or the way we expected them to be, whereas you hear it as it actually comes out. So, if my recollection differs from yours, I would trust your collective memory.

And I'm not supposed to say this, OK? We're all taught never to say this. But what we say as lawyers is not evidence. The evidence is what you heard. And if something I said doesn't ring true to you as what the evidence is, you don't have to wait for someone else to object.

I don't want you to consider something if you don't remember it as the evidence.

Now, before proceeding any further and before I forget, I do want to express my gratitude to Mr. Bryan, to the court, to my distinguished opposing counsel. As I walk through the front doors of our courthouse every day, I am reminded what an honor and absolute privilege it has been to come before you.

What I would like to do now is go back in time. I want to take you back, if you can join me, to the morning of February 23, 2020. It seems, at least to me, both so very far away and yet like it was yesterday. It was a time to which many of us might wish to return, if only we could turn back time.

Ahmaud Arbery is still very much alive, perhaps still asleep. Some of us, like Brooke Perez and her husband, Diego, have gone off to church. Others read the Sunday paper. The politically minded may recall Bernie Sanders is the front-runner for the Democrat nomination.

The sports-minded may recall that the Daytona 500 had been held a week earlier down the road. Donald Trump was the grand marshal. And our local newspaper, "The Brunswick News," And covers school events celebrating Black History Month.

You may recall COVID-19 is still a mystery. It's a China problem, an Italian problem. Some guy we have never heard of, Dr. Anthony Fauci, warns us that we should conserve the already dwindling supply of masks for first responders and for health care workers who most need them.

But Roddie Bryan isn't reading the Sunday paper. Roddie Bryan is not in church. And he probably isn't paying much attention to the corona. Roddie Bryan is working on the front porch of his home. After renting for several years, Roddie and his fiancee have just purchased their home on Burford. As a small engine repair guy working at the local hardware store, this is a big deal for Roddie. And he isn't going to waste any before fixing it up.

When you think back, it was a different world. But it's the world in which these events take place. And it's in that context that we have to look at the evidence in this case.

Now, I think we have the first Night Owl video. I call it the first Night Owl video, the porch video. I think we played it for you once before.

Here, you can see Roddie Bryan standing on his front porch, trying to repair a column. He is listening to music. The music is playing from the -- in the garage. The door is open. We have seen that from the previous picture. We will see in a moment his truck is out front. If you look carefully, I believe you can see his hammer on the ground behind him, and I believe other tools as well.

Now, we will stop that.

Now, we have a still photo which we're about to turn back on. A still photo? Sorry. Beggars can't be choosers. I'm going to wait on Ms. Burton (ph).

This is the front of the Bryan residence. You have to add in Mr. Bryan on the porch. You have to add in a pickup truck in the driveway with lumber in the back. You have to imagine, if you will, the music playing, and it's probably playing loud because his hearing is not so good.

[15:25:00]

Is there any thing threatening or menacing about this picture? Is there anything threatening or menacing about this image? Or is this something we expect to see in a Norman Rockwell painting?

We talk about driveway decisions. Mr. Arbery has driveway decisions that he's making this morning.

I'm not going back into all that stuff with the Englishes and Diego Perez and Matt Albenze and Robert Rash. That's already been covered. And although Mr. Bryan may well have read about it on the Exit 29 page, he doesn't recall it, at least on this day.

But Mr. Arbery is now running down the street, running from the English residence. He's passing house after house after house on a nice Sunday afternoon.

Is there any evidence that Mr. Arbery sought help, sought assistance from anyone in that neighborhood up to this point? Maybe you heard it. I didn't.

But as he comes up to Mr. Bryan's residence, he starts coming by his house. Why isn't Mr. Arbery asking for help? Why isn't he calling out: "Hey, somebody call 911, there's crazy people after me"?

Maybe that's because Mr. Arbery doesn't want help. Now, Mr. Bryan spots Mr. Arbery out of the corner of his eye. Roddie Bryan knows the joggers in the neighborhood, on his end of the neighborhood. Let's be clear. It's a big neighborhood. There's four or five. Ahmaud Arbery isn't one of them.

Roddie Bryan's never seen Ahmaud Arbery before. Roddie Bryan intuitively -- and that's the word for it -- intuitively knows the difference between someone running to something and someone running from something.

But that mystery is resolved pretty quickly when the white pickup truck that he does recognize from the neighborhood comes by. Now, Roddie Bryan doesn't know Travis McMichael. He would recognize Greg. But Greg McMichael is sitting on a car seat, probably with his head stuck up somewhere in the bed liner. Roddie Bryan doesn't realize Greg Michael is in this truck until after the tragic shooting.

DUNIKOSKI: Objection, Your Honor. (OFF-MIKE) object to facts not in evidence.

This -- none of this came in at all before this jury. And we would object to anything about Roddie Bryan and knowing Greg McMichael or anything.

GOUGH: I'm pretty sure that he specifically said in one of the interviews that we went through that he didn't realize Greg McMichael was in the truck.

But the jury knows what the evidence is. And they will -- their recollection controls.

JUDGE TIMOTHY WALMSLEY, EASTERN CIRCUIT SUPERIOR COURT: Let's stick to the evidence as it was presented to the panel.

GOUGH: Thank you, Your Honor.

At the time that Mr. Bryan looks out, he sees the -- Mr. Arbery in the truck. He sees them side by side. He cannot -- because of the music, he really can't hear the words. I believe the testimony is, he's basically reading the lips of what turns out to be Travis McMichael.

He can't see Mr. Arbery's lips. He can't see what, if anything, he's saying. Mr. Bryan has told us repeatedly that he's never heard Mr. Arbery say anything from day -- from the beginning to the end.

So, at this point, it's clear that Mr. Arbery does not want help from Mr. Bryan. It's clear that he goes ahead and runs off. And, at that point, Mr. Bryan has to make a decision.

Now, there's been some testimony. I think Mr. Bryan said that he called out to them, "You got him," which would be consistent with what he's seeing on the road. But nobody else hears that, that we know of. We know another witness said that they didn't hear, because they testified.

And we're going to play a second Night Owl video that we didn't play previously, where you see Mr. Bryan coming off his porch.