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Defense Gives Closing Arguments In Ahmaud Arbery Murder Trial. Aired 3:30-4p ET

Aired November 22, 2021 - 15:30   ET

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

[15:30:00]

KEVIN GOUGH, DEFENSE ATTORNEY FOR WILLIAM "RODDIE" BRYAN: Now, I'm going to suggest to you -- and you'll have to decide what the truth is here.

When Mr. Bryan says he called out to them, did he? Do you see that on either of these videos? Do you see it on the third one to come?

Again, is there Bryan relating what actually happened or what he thinks has happened. Is Mr. Bryan's mind playing tricks on him? In any event, Mr. Arbery goes down the street.

Now, Mr. Bryan -- at this point, we're going to go to the next Night Owl video.

There he is.

Watch carefully.

Mr. Bryan said he walked to the kitchen. On another occasion, he said he ran to the kitchen. He said he walked back out to the truck. Another time, he said he ran back out to the truck.

We know from this video it takes 13 seconds to get from the edge of the driveway into the kitchen to reach the keys and go back out to the truck.

Mr. Bryan is, in fact, walking calmly to the kitchen and walking calmly to the truck. And his recollection of doing otherwise is faulty.

Now, we also know, as Mr. Bryan pulled out -- and by the way, we also know that he left his rifle in the house. He left the hammer on the porch. He went out with his cell phone.

Now, here we see, when Mr. Bryan initially pulls out -- Mr. Bryan is pointed to the right. Now, he backs up. Now, it's at the very end he backs up and straightens out a bit.

Whether Mr. Bryan said he was going to the left or to the center or slightly to the left, the actual evidence in the case is consistent with him pulling stating out.

And again, we know from all the other things that we've seen that Mr. Bryan's recollection of events that day simply isn't that good.

Now, Mr. Arbery -- not Mr. Arbery. Mr. Bryan makes what is for him a very faithful decision. He actually pulls out in the road.

Now, at one point, he says he overshot the road. Another point in the same interview with Detective Lowry, he says that he crept out on to the road.

The state suggests that Mr. Bryan either hit Mr. Arbery or tried to hit him and pushed him with his 5,000-pound motor vehicle. We'll come back to that in a second, but I think the evidence is inconsistent with that.

Now, I do want to talk about the indictment for a minute. Let's take a minute to review the indictment.

It is what we sometimes call a kitchen sink indictment. Everyone, all three defendants are charged literally with everything in the indictment, every crime set forth therein.

You may find this confusing and difficult to sort through at times since the factual basis and underlying legal bases for the five murder counts are so closely intertwined with one another.

However, this is perfectly acceptable. There's nothing improper about it. Murder is murder.

Each of the remaining four counts of the indictment, aggravated assault with a shotgun, aggravated assault with a motor vehicle or motor vehicles, false imprisonment, and attempted false imprisonment actually serve as predicate felonies for the felony murder counts.

In other words, this indictment does not allege any offense against any defendant other than murder and the predicate offenses former.

There are a couple of legal principles, I feel obligated to go over in every case. One of those is reasonable doubt. You have heard several capable lawyers go through that. I'm not going to spend a lot of time there.

Without belaboring the point, however, I would consider the core principles at the heart of unreasonable doubt. A unreasonable doubt means just what it says. It is the doubt of a fair-minded impartial juror honestly seeking the truth.

If you are a fair-minded impartial juror honestly seeking the truth -- and you've certainly given us every reason to believe that you are -- if at the end of the evidence, you have a doubt, that is a doubt upon which you pay acquit the defendant.

[15:35:05]

A reasonable doubt is a doubt based on common sense. It is a doubt for which a reason can be given.

If you can give a reason to doubt whether Mr. Bryan is guilty, then your mission is complete. And at that point, you should acquit Mr. Bryan.

Now, I also often use this provision lifted from Robert Bolt, a man for all seasons, when I talk about reasonable doubt because I find it helpful,

And let's be clear, it is not a statement of the law. It is the principle behind it.

Some of you may be familiar with the play and the movie, some of you may not.

William Roper asked Sir Thomas More, so now you give the devil the benefit of law? Sir Thomas More says, yes, what would you do? Cut a great road through the law to get after the devil?

William Roper said, yes, I'd cut down every law in England to do that. Sir Thomas More replies, oh, and when the last law was down and the devil turned round on you, where would you hide, Roper? The law is all being flat.

This country is planted thick with laws from coast to coast, man's laws, not Gods. And if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the winds that would blow then?

Yes, I would give the devil benefit of law, Sir Thomas More says, for my own safety's sake.

And when you apply the reasonable doubt standard, remember, that standard.

That legal principle isn't there for Roddie Bryan. It's not for these other defendants. It's there for all of us. And it's a principle that we cannot forsake.

The court is going to charge you, I believe, without trying to put words in your mouth, to parties to a crime.

The provision that's relevant to Mr. Bryan in this case is the second one. To be a party to the crime, Mr. Bryan must intentionally help in the commission of an offense of a crime.

Mr. Bryan cannot be a party to a crime by accident. He can only be a party to the crime intentionally. And we'll come back to that principle again.

Now, count one is murder. And I don't want to tread over the same ground that other counsel have tread, but the issues are somewhat different for Mr. Bryan.

I hesitate even to respond to count one because by doing so, I don't want any of you to think for a moment that there's anything here worthy of a reply, but I'm required to do so.

Roddie Bryan didn't shoot Mr. Arbery. He was armed with only a cell phone. He was a good distance away when the shots rang out. Roddie did not cause or could not cause Mr. Arbery's death in the

meaning of this statute. Roddie was not the shooter so he could not scoot Mr. Arbery unlawfully. Bryan didn't shoot him at all.

Roddie Bryan acted in good faith on the day in question. There's no evidence whatsoever of malice.

And most importantly -- and I think this echoes arguments made by others -- nor can Roddie be a part to the crime of malice murder because there's no evidence that Roddie Bryan intentionally helped Travis McMichael murder Mr. Arbery.

Where is that evidence?

And that takes us back to the three questions I asked a moment ago when I first stood up.

Roddie Bryan certainly was not aware of any intention on the part of Travis McMichael to shoot Mr. Arbery.

And I'm not saying he had that intention. You will have to decide what Travis McMichael did or did not do.

But Roddie Bryan certainly was not aware of any such intention. And certainly could not be a party to the crime of malice murder because he can't intentionally help commit a crime he doesn't know is underway, doesn't know is contemplated.

At this point, we're going to try to go back and play the video again, the FAMTS (ph) video.

But I'm going to repeat the three questions that I started with.

When did Roddie Bryan know the McMichaels brought guns with them? When did Roddie Bryan know Travis McMichael would shoot Mr. Arbery? And at that point, rather, what could Roddie Bryan do to stop it?

[15:40:10]

We ready?

All right.

I'm going to try and keep up with this video.

At .03 seconds into this video, Mr. Arbery turns around.

Now, stop.

What I want you to do is not so much look at the video at this point. Listen with your ears to the noises in the background. Because they tell you what's really going on. Even when what you see on the screen is unclear.

At .04, you'll hear Roddie Bryan tap the brakes. He's still in drive. And you'll see he's going at approximately two miles per hour. Yes, let's try that again.

It's very, very difficult to get this video precise. We're looking for four seconds. We're looking for the speed on the speedometer.

What you can see is that Mr. Bryan, you hear him tap the brakes. You hear Mr. Bryan tap his brakes. But he's still in drive. And he's going about two miles per hour, which is about the same speed that Mr. Arbery is moving.

He's been described as chasing Mr. Arbery, as hunting Mr. Arbery, as attempt to go run Mr. Arbery down.

But what you can see on the video, and you can see Mr. Bryan is moving at approximately two miles per hour, and you can see that the seat belt is not in place.

Now, at this point, we're going to go ahead and play it to about the 17 second mark. Listen for the gear shifts -- I'm sorry.

Go ahead.

You can see Mr. Bryan's foot is not on the gas pedal. Now, you hear a motor vehicle go by. We can get which vehicle that is. But we hear it pass.

And then at 20 seconds, we're going to hear the seat belt alarm go off.

(DINGING)

GOUGH: At 26 seconds, you can hear the transmission shift as Mr. Bryan puts his truck in park. And then two seconds later, you'll hear Mr. Bryan buckle his seat belt.

Now, at about 30 seconds -- and I'm going to go through this with you before we play it so you know what to listen for.

Mr. Bryan utters the famous words, "I'm going to keep going." And you'll notice that his cell phone is down. This is where he says, "I'm going to keep going."

And the state is suggesting to you, if I recall the opening statement and the opening portion today, that this is where Mr. Bryan is turning around to give chase to Mr. Arbery in the moments before his death.

But if you listen carefully, I think you'll hear a somewhat different story and a different truth.

WILLIAM "RODDIE" BRYAN, DEFENDANT IN AHMAUD ARBERY MURDER TRIAL: You know what, I'm going to keep going.

[15:45:03]

GOUGH: Mr. Bryan says, "I'm going to keep going." He's put the car in gear. But if you watch, you'll see Mr. Bryan isn't going back towards Mr. Arbery. He's not going back towards the McMichaels. He's going in the opposite direction.

And he starts at a high rate of speed. You hear his wheels lose traction slightly.

Now, you can't see yet but he's not moving towards Mr. Arbery. He's moving away. And you'll see why in a moment.

Now, here you can see the speedometer is -- at this point, he slowed back down. He's at four miles per hour at the 51-second mark.

And shortly after this, you hear him put the -- shift the transmission again. And I think you'll see it's closure from the context, which is a K-turn, that he is putting the truck into reverse.

And then a few seconds later, he puts it back into drive. This is the K-turn, near the top of Holmes, the top of Holmes near Zellwood.

Go ahead.

OK. When I start the video up -- we start the video up, it's a team project here, we start the video up.

Listen for Mr. Bryan's breathing. I think when you hear his breathing you will hear something different than the state has suggested.

Now, I can't tell you how to interpret it, but what I hear is someone who has labored breathing, breathing as if he was in fear.

Also around the same time, watch Mr. Bryan's leg, which is momentarily visible on the gas pedal, and see whether you don't agree that Mr. Bryan's leg is literally shaking.

Now, you know, he's not driving a Cadillac. I'm sure there's vibration in the vehicle. But if you watch his leg in relation to the rest of the car, to the rest of the truck, I think you'll agree that Mr. Bryan, at this point, is shaking.

All right. Let's try that again.

Very good. Did we play the right portion there, or did we miss it?

OK. All right. Back down Holmes.

Now, what does he do here? He's pulled up his cell phone. His cell phone has been down because he was driving away.

When Mr. Bryan said that he went home, when he said the guy didn't want to be caught, that's all consistent with this video.

Now, we can see that he's turned around.

The question is, ladies and gentlemen, why is he turning around? Technically, this is the shorter path back to his house. It may be

easier to get in the driveway. You can see the bushes in the video out front.

Maybe, maybe, he's trying to document what's going on. He said that's what he was trying to do. Maybe. And that's just me going out on a limb.

I'm going to suggest to you that perhaps -- and I know I'll get grief for this. I would submit to you that you can call it karma. You can call it fate. I would call it divine providence.

Somebody is guiding Mr. Bryan. Whether it's a conscious thought process or not, something is guiding Mr. Bryan down this street to document what's going on.

Just like Mr. Bryan's on his porch, why does he go out? He doesn't know. He gets in his car. He sits out there. He doesn't even know why.

He's being guided, whether that's by a god, whether you believe in a god, or by some other entity. But do you really believe it's just coincidence or chance?

We're going to go ahead and continue playing the video.

OK. Mr. Bryan is traveling -- as he testified, as an agent indicated in the re-enactment video -- he's traveling at 10 or 15 miles an hour.

[15:50:11]

He's traveling faster than Mr. Arbery. But clearly, if he was trying to hunt him down, he would be going a lot faster.

More to the point, at this point, as Mr. Bryan comes around the dogleg, what we're seeing here -- I can't be sure whether this is the enhanced video or not.

But what we're seeing here in this courtroom with the artificial interior lighting is certainly a better view than Mr. Bryan has actually looking through that phone with the glare and other stuff that's going to be in the car on a sunny day.

Anyone who has tried to look at pictures on their phone while they're driving on a day like this understands that sometimes you can't see the phone at all.

But assuming that Mr. Bryan has 20/20 vision, and assuming that he has every bit as good a view of as phone as he's driving, as you see here, where is Travis McMichael?

I can't see Travis McMichael in this picture. Really, honestly, I can't see Greg McMichael in this picture. And I certainly can't see any guns.

UNIDENTIFIED MALE: Now what's our post on this one?

GOUGH: This is at 1:15, into a minute and 43-second video.

And Mr. Bryan, at this point, has no reason to know that the individuals in that truck have guns.

OK. Let's -- all right.

You can still, at this point -- I think you can see that there's a shadow, a silhouette of what -- Travis McMichael.

But from where Mr. Bryan is, in his vehicle, again, even if he has a perfect view of his phone, you can't see a weapon. You can't see anybody's armed.

We're going to go forward again.

At 1:15, now watch. You see Mr. Bryan's phone is focused on the right of the truck.

Why? Because Roddie Bryan doesn't know Matt Albenze is down on Jones at 220 Flotilla (ph) with his phone and his gun.

The McMichaels know because Mr. Albenze has given them the hand signal.

Mr. Arbery knows because he's running out of the house away from Mr. Albenze.

But Roddie Bryan doesn't know that.

Roddie Bryan is thinking that Mr. Arbery, like he has for the last minute or so that he's been out there, that Mr. Arbery is just going to go around the truck like he's gone around the trucks the whole time and head out toward the exit to the neighborhood.

All right. Go ahead again.

At 1:16, Travis should come into view. That's Greg McMichael. We already passed that. Now there's Greg McMichael in the back of the truck. Now we know that he has a gun. I think at this point, he's on the cell phone.

But for Mr. Roddie Bryan's vantage point, looking through this phone as he's trying to drive on a sunny day in his truck, how can Mr. Bryan know that Greg McMichael has a gun or that he's drawn it? He can't.

Go ahead. Go to 1:21. Play to 1:21.

All right. This is 1:21. You can see Mr. Arbery. You can see how far back Mr. Bryan is. And you can see Mr. Arbery going to the left momentarily.

And way over here -- and I promise not to touch the screen. This little fuzzy black thing here, this silhouette, is Travis McMichael.

Where on this video -- putting aside the fact that Mr. Bryan is not going to have as good a view driving on a sunny day in his car. From this video alone, where is Mr. Travis McMichael's shotgun?

Roddie Bryan can't see any weapon. He has no reason to know that these men are armed.

And at this point, there's 20 seconds left in this video. We're just going to go ahead and play it.

[15:54:58]

And you tell me, in your mind -- because you can't tell me. Figure out when Roddie Bryan can see Travis McMichael's shotgun.

If Roddie is looking the wrong way -- he's looking to the right expecting Arbery to run off.

Wow.

We're now, what? Where we are on the time stamp?

UNIDENTIFIED FEMALE: (INAUDIBLE)

GOUGH: We're now at 1:28.

Roddie Bryan has never seen -- and I don't care what is in any prior statement. We know looking at this video Roddie Bryan has never seen the shotgun until after it's been discharged the first time.

That's not an opinion. That's fact. You are looking at it. You just never looked at it from this perspective before.

Let's go ahead and play the rest of it.

(GUNFIRE)

(SHOUTING)

(GUNFIRE)

GOUGH: OK.

Now again, having looked at the video again, slowly, from Mr. Bryan's perspective, when did Roddie Bryan know the McMichaels brought guns?

I would submit to you that Mr. Bryan doesn't know that there's a gun until it goes off. Not because it wasn't there but you see what Mr. Bryan is seeing.

When did Roddie Bryan know Travis would shoot Mr. Arbery? I would submit to you he can't know until Mr. Arbery's actually shot.

And at that point, what could Roddie Bryan do to stop this tragic shooting?

The state has thrown out all kinds of theories. He could have honked his horn. He could have gone to the left. He could have gone to the right. He should have backed up. Well, obviously, if Mr. Bryan saw a shotgun pointing down the street

in his direction, he probably would have at least ducked. But he doesn't do that because Roddie Bryan can't see the gun.

And when the state tells you that he was hunting Arbery down, what they are trying to tell you is that he's going down the road towards them, when he's going up the road away from them.

And when he says he turns around, he brings the video back up. He takes the best video that we have, the only video we have of this shooting.

So when Mr. Bryan says on the side of the road, on February 23rd, to the officer, I was trying to record what happened. I don't know what I got. I think I got two or three.

He only got one. But fortunately, he got the one that you need to figure out what justice is in this case.

And again, it's not for Roddie Bryan, it's not for me to say what justice is here between the McMichaels and Mr. Arbery and his family. That's not our call. That's your call.

But again, but for Mr. Bryan, whether you call it serendipity, luck, coincidence, or the hand of God here.

Not once, but twice has someone who keeps to themselves, who never gets involved in anybody else's business, who is almost a stranger in his own neighborhood, has now gone out and gotten a video, which is the best evidence for you to look at in trying to figure out what happened here.

Now it's going to come up in different context, but the judge is going to instruct you on the principle of abandonment. And it has more than one application here.

But basically, if somebody abandons a criminal enterprise, then they cannot be held criminally responsible for it.

Maybe you believe that Mr. Bryan was attempting to imprison, falsely imprison Mr. Arbery. Of course, that would depend on whether or not the McMichaels were authorized to make a citizen's arrest. We'll talk more about those issues later.

But this is a defense. And it is the burden of the state to disprove that defense beyond a reasonable doubt.

[15:59:49]

Under the facts of this case, from this video, as we have just gone through it, how could anyone say beyond a reasonable doubt that Mr. Bryan, having turned away, that he didn't come back for the right reasons?