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Live Coverage of the Arbery Trial. Aired 9-9:30a ET

Aired November 23, 2021 - 09:00   ET



LINDA DUNIKOSKI, PROSECUTOR: And the barrel of that shotgun is over 28 inches. Do the math.

Did he hit him, did he punch him, did he strike him, when the shotgun's like this? It's easy, do the math.

This is what Travis McMichael did. There's no fear here. There's only anger.

Remember, it's the standard of reasonable beliefs that the force used is necessary. Do you really believe he had no other choice but to use his shotgun? Is that what you really believe? No other choice.

What are the alternatives? Well, the first alternative is, don't start this. I'm going to tell you something, my husband, he always tells this to our three nephews, David, Ben and Sam. And what he says is, there's some rules for life. And you know what those rules are? Don't go looking for trouble because you will find it. And it is not going to turn out the way you think it is. What he's really saying to them is, don't be that guy who starts the bar fight and goes, come on, let's go out in the parking lot. That's what he's really saying to them. But it's -- it's a life rule. You go looking for trouble, and what's going to happen?

So, don't leave the house. Here's an alternative, call the police. Don't chase down strangers to confront them. Don't go after pedestrians in your truck. I mean common sense tells you, you pull up in a truck on somebody who's -- like a pedestrian who's out for a jog, I mean, I don't know, are any of you runners? You ever had a strange truck pull up that has some people start yelling at you? Would that startle you? I don't know. We don't know what was in the mind of Ahmaud Arbery. But, I mean, what do you think? Did it cause some fear for him? These strange men pulling up in this truck and then not relenting and not backing off?

This was three on one. How about some empathy? Remember leaps, listen, empathize, where is Travis McMichael's empathy, where is Greg McMichael's empathy? Where did they go? You know, wow, I wonder what I'm doing to this other person. I wonder what it looks like from their point of view. I wonder if we might be scaring or startling this person. I wonder if it may be so bad that they might react in a negative way? Where's the empathy?

How about, don't bring a shotgun with you. This is really easy. Call the police, because what did Officer Rash want? Remember Officer Rash. He said they want -- he wanted them to be witnesses. I mean, so call the police. Follow behind Mr. Arbery at that two miles an hour. Where's he going to go? They could have followed him all the way back to Fancy Bluff (ph) and Boykin Ridge (ph), on the phone going, he's turning left, he's turning right.

Whooo, OK. That was a real easy choice. But did they choose to do that? No, they confronted him. They chose to confront him. They didn't need to. They didn't have to. I mean they could have followed -- I mean he's a jogger. How fast is he going?

Don't point a shotgun at people unless you're going to kill them. Don't point a shotgun at people unless you're going to kill them. How do we know he intended to kill him? He pointed a shotgun at him.

How about you stay on the driver's side of the truck. Don't go around to the front of the truck. Real easy.

All right, so let's go ahead and take a look at citizen's arrest, because this is really important. The law of citizen's arrest, OK. So, first off, the defendants never ever said citizen's arrest. They never ever said we're making an arrest. They never said, we saw him commit a crime. So, ladies and gentlemen, where in the world does the citizen's arrest thing come from, because it didn't come from the defendants on February 23, 2020. Where did it come from?

So what is the law? A private person may arrest an offender if the offense is committed in his presence. What does that mean? Right here, right now, I saw you commit an offense. OK. I saw you criminally trespass on that property, right here, right now on February 23rd, 2020. I saw you commit a burglary. I saw you commit, whatever crime it is, it's in your immediate presence. Or within immediate knowledge. OK, we talked about that. The guy at Walmart is not standing next to the shoplifter when she shoplifts, but in real time, what's he doing, he's watching it. We're not talking about videotapes. You can't watch a videotape from November and then have it in your immediate knowledge, OK.

Remember, the judge is going to tell you it's synonymous.


It means the same thing. Meaning, in your presence, or immediate knowledge, means immediately you know because you saw it. That's what that means. That doesn't mean watching a videotape on February 11th with Officer Rash in front of 220 Satilla (ph) Drive. That's not what that means. A private person may arrest an offender if the offense is committed in his presence.

Did Ahmaud Arbery commit any offense in the presence of any of these defendants? The answer to that is no. Boom, citizen's arrest is gone.

But, yes, I am going to continue because there's some more caveats.

If the offense, the one that was just committed in your presence, is a felony, do you get why they're trying to make Ahmaud a burglar so desperately? Because it -- all he's doing is criminally trespassing --

UNIDENTIFIED MALE: Your Honor, I -- again, I don't like to interrupt closings, but this is not an accurate statement of the law that the court is going to give this jury. The parenthetical is not accurate.

DUNIKOSKI: The parenthetical is mine. Totally mine. OK.

UNIDENTIFIED MALE: Well, I've made an objection, though. I'm asking for a ruling.

JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT, STATE OF GEORGIA: She's just explaining -- yes, the parenthetical is the -- what the state is arguing, the rest is the charge of the court. The charge is going to be provided to the panel. And with the same explanation I provided a little bit earlier, I will put the law, is going to be, the court is going to provide you the law of the case.

Counsel, you may proceed.

DUNIKOSKI: Thank you.

So, they -- the first sentence is, a private person may arrest an offender if the offense is committed in his presence. OK. You can arrest if the offense is committed in his presence. If the offense, and that's my parenthetical to remind you, if the offense, we're talking about that offense, the one that was just committed in your presence, is a felony, and the offender is escaping or attempting to escape, right then and there --

UNIDENTIFIED MALE: Judge, that is not the law that the court is going to give and we've had this discussion. We've --


UNIDENTIFIED MALE: It's a misstatement of law and we would object.

UNIDENTIFIED MALE: I join in the objection. (INAUDIBLE).

WALMSLEY: It's noted.

DUNIKOSKI: You all understand this is my argument. The judge is going to give you the law, right, and he's going to have it written out for you and he's going to read it to you. But this is the state's argument, that the offenders escaping or attempting to escape. The state's position is, is that what that means is, I saw the crime, I can't chase after the person, I just have to try and arrest them right there. But if it's a felony, if it's a felony, and if they're escaping, they're running away, I get to chase after them. I don't get to chase after them unless it's a felony and they're trying to escape. All right. A private person may arrest him upon reasonable and probable grounds of suspicion. That's the state's position --

UNIDENTIFIED MALE: Your Honor, we -- we -- we have to object and have a conference with the court.

WALMSLEY: No, we're going to let the state continue. We talked about this in the charge conference. The objection is noted.

UNIDENTIFIED MALE: We move for a mistrial, Your Honor.

UNIDENTIFIED MALE: We move for a mistrial.

UNIDENTIFIED MALE: Based on the incorrect statement of the law.



WALMSLEY: Ladies and gentlemen, if you could please just go ahead and take a step into the jury room.

UNIDENTIFIED MALE: All rise for the jury.

ERICA HILL, CNN ANCHOR: So you've been watching the rebuttal here from the prosecutor in the case of the three white men who are charged in the killing of Ahmaud Arbery.

Jim, and we're hearing from the defense of some --


HILL: The defense attorneys objecting here to the way the prosecution is talking about the law, which has since largely been repealed in Georgia, but the law for citizen's arrest.

And this is an objection that we've heard come up multiple times before.


HILL: Now it seems they're going to address it with the jury out of the room.

SCIUTTO: Yes, I mean, because -- when we heard this yesterday, we heard the judge say at the same time, I'm going to provide the jury with instructions to delineate exactly what the law is here. We noted the prosecutor there saying she's making an argument, in effect.

Sorry, let's listen to what the judge is saying here.

WALMSLEY: I understand the objection is being made to the law. I've indicated the law is going to be provided to the panel. I've indicated the court's position with respect to the law.

So, with that, I'd like to get the closing argument done, but I'm more than happy to hear the motion for mistrial, and proceed from there.

ROBERT RUBIN, DEFENSE ATTORNEY FOR TRAVIS MCMICHAEL: Your honor, based on the final draft of the charge that the court provided us, I guess yesterday morning, the court is going to charge that a private citizen's warrantless arrest must occur immediately after the perpetration of the offense or, in the case of felonies, during escape. If the observer fails to make the arrest immediately after the commission of an offense or during escape in the case of felonies, it's power to do so is extinguished. That's not what the state's arguing. They're arguing and.


And it's a clear misstatement the court should simply instruct the state not to argue an incorrect statement of law rather than putting the burden back on the jury to understand what the state is saying, what we're saying, and now what the charge is saying. The court has the power to do so and should do so.

FRANK HOGUE, ATTORNEY FOR GREG MCMICHAEL: In further support of the motion for mistrial, on behalf of Greg McMichael, obviously this is the last word by any council in the case. And to argue the state's case, which we're perfectly fine with their doing, is to argue the facts and evidence as the law applies to them, but not as a misstatement of the law applies to them that we can't correct except by making a -- kind of an objection when the incorrect law is being given to the jury by the state.

So, there's no way we can fix it. And we're asking the court to fix it. Not by simply saying to the jury that the law is going to come from the court, which it will, but that this is a misstatement of the law, and this argument is improper.


WALMSLEY: The state (ph).

DUNIKOSKI: Thank you, Your Honor.

Yesterday, the defense got up here and argued their interpretation of the law. And I didn't object at all because I knew it was their interpretation of what they believe the law to be. They went through the whole probable cause thing. They called him a burglar. The went through everything The state didn't object because I understood that this was their position of the law as it applied to the facts.

I've just made it clear to this jury, and I will again, that this is what the law is and this is how you apply it to these facts and this is the state's interpretation of how you read the law, just like they gave their interpretation in their closing yesterday.

So we ask that you deny the mistrial.





RUBIN: You can argue the law, you can't argue a misstatement of the law. The state never told the jury, this is my interpretation of the law until we objected. WALMSLEY: Well, I think that's what was explained in the

parenthetical. But I -- the state does need to -- I will -- the state needs to clarify that this is the argument based on the law that will be charged and what the law that will be charged and make sure that we're clear about what the law is that's being charged. I'm not -- there was a debate about this on Friday. And I'm not going to reignite that debate in front of the panel.

RUBIN: We're perfectly -- we're fine with the -- what the court's decision was on the contemporaneousness of the events. The charge is great. It's the state's argument about what that means that's flawed. And it's fatally flawed.

WALMSLEY: Well, the state has the right to -- just like the defense had the right to argue that what escape means is, escaping whatever this temporal period is, I understand the state to be arguing the same thing in a much more limited temporal period. I think the state's got the right to do that. The state needs to be sure, though, that it's clear that that is the argument that is being made as opposed to what the law is. And I think the charge is very clear about that.

So, motion for mistrial is denied.

HOGUE: And, if I may add, though, the state is arguing that the felony for the second sentence has to have just occurred in the immediate presence of the person seeking to arrest the escaping felon. That is absolutely a misstatement of the law. Even as the court agreed to charge it, that's not even correct.

The second sentence does not require the felony to have occurred within the immediate presence, contemporaneous with the escape and the chase. That is not the law. That's not the law the court agreed to charge.

DUNIKOSKI: Your Honor, you're charging the statute. And the statute are those two sentences. The state's interpretation of that statute is, if the offense, well, that is, the offense has to be committed in your presence or immediate knowledge. If that offense is a felony, I mean, that's what it says, if that offense. Well, it's referring back to that first sentence, and the state's interpretation is then that means that felony had to be committed in your presence and the person had to be escaping right then and there. And that's the state's argument to them, that they never saw anyone escaping from a felony that had been committed that day.

HOGUE: That's not what the court's charging.

WALMSLEY: Yes, that's -- that's not what was in -- so the charge -- the escape -- the second sentence the court is charging, which I understood was agreed to, was that if it's a felony and there was an escape, that's the temporal issue that we're talking about, then -- then that -- those steps can be taken to detain the -- or arrest the individual.

What I understood the defense is arguing is that this temporal period stretched over some time. [09:15:05]

What I understood the state was arguing was, no, that temporal period is limited to what had occurred there, the escape. The word escape was, he was escaping from whatever may have occurred that day.

DUNIKOSKI: I am. Yes, that is what we're arguing. Correct.

WALMSLEY: OK. Well, that's not what I'm hearing then. Because what I'm hearing is, well, if the state limits its argument to that, that that's what the second sentence refers to, an escape, that limited temporal period, then that's permitted. That's what we talked about in the charge conference.

DUNIKOSKI: Yes, Judge.

HOGUE: I don't think that is what we argued about, by email and all the rest, Your Honor. I --

WALMSLEY: Well, that's what I remember. That's what I'm saying.

DUNIKOSKI: The state will limit its argument to that.


HOGUE: Your honor, if it's OK for me to step out just for a second, I -- I will not disturb the jury if they're back by the time I get back.

WALMSLEY: OK. All right.

UNIDENTIFIED MALE: I could also use a bathroom break, I assume that's what Mr. Hogue is looking for.

WALMSLEY: OK. Let's just take literally five minutes and then we'll get back into this.

DUNIKOSKI: Thank you, Judge.

SCIUTTO: All right, a five-minute break there.

Joining us now, former federal prosecutor, CNN legal analyst, Elliot Williams. Also, Michael Moore, former U.S. attorney for the middle district of Georgia.

Michael, I might go to you there because you saw the content of that debate, which is not the first time we've seen this debate. So the prosecution in the final word of the jury in their rebuttal closing arguments makes the argument that the law that applied at the time of this required for people making a citizen's arrest for there to be a felony or suspicion of a felony and for the suspect to try to escape. If there's a felony, if they try to escape. You saw the defense object to that description of the law, even asked for a mistrial, which, we should be clear, the judge has denied.

Can you explain the law here? Does the prosecutor have it right or does the defense have it right? MICHAEL MOORE, FORMER U.S. ATTORNEY, MIDDLE DISTRICT OF GEORGIA: You

know, remember that we're arguing about an old law which is no longer on the books. It basically was a (INAUDIBLE) law. I mean what it gave people the right to do back 100 years ago was chase -- chase slaves. And it's a disgusting old law, but basically I think the prosecutor had it right, trying to follow the judge's interpretation stated charge that the court will give.

The law -- and for those people that maybe not -- don't do trials all the time, remember that the jury is the decider of the facts and they apply the law that's given to them by the court. So both sides have a right to argue how their facts, and the facts that they think fit their case are impacted by the law.


MOORE: And so they're simply giving different versions. I mean I'm not surprised at all that the mistrial was denied. I do think that they -- the defense is trying to make hay with it. And the reason is because this final closing argument, this rebuttal argument that's really a gift to the state in this case because it's -- it -- you don't -- we don't really think much about what was said yesterday, right?


MOORE: I mean the jury is going to decide something today or, I mean, or get the case today, and that's -- this is the closest thing they're going to hear from the lawyer to -- before they get the case. And so the defense is trying to knock holes to knock her off her track to, you know, sort of get -- mess up the flow, I guess, of the -- of the argument that's (INAUDIBLE).

SCIUTTO: Or raise a doubt in the minds of the jury, right, Erica? I mean that's basically their job here.

MOORE: Sure.

HILL: Yes, absolutely. And we heard the defense point out, though, the defense say, well, this is her interpretation and she should be clear about that. The prosecutor saying, I think I have been clear. I didn't interrupt the defense yesterday when they were, you know, saying what their interpretation was.

You know, Elliot, as a former prosecutor, as you're listening to Lisa Dunikoski today in her rebuttal, I'm hearing her go through each point that the defense made, both over the course of the trial but also in their closing arguments yesterday, and do her best to dismantle those. And specifically on self-defense, she's coming back to what we heard a lot of yesterday. She's using the word common sense and also noting you can't claim self-defense if you started it.

ELLIOT WILLIAMS, CNN LEGAL ANALYST: Right. When you've got the final word, you've got two things to do, which is, number one, rebut the things that the defense puts forward. So, sort of knock holes in her argument -- in their arguments. And you're going to see her do that a bunch over the course of her speaking. The other thing is put -- and this is what we got into trouble with a

second ago here, put the law into plain language. And something she did quite masterfully a moment ago is talk about this idea of false imprisonment. When people hear false imprisonment, they're thinking jail cells or handcuffs or stuff like.


WILLIAMS: But she said, quite clearly, you can falsely imprison someone with a truck by boxing him in. And those are the kinds of metaphors and easy explanations that helps put law into lay people's heads.

SCIUTTO: Michael, I have to say, that when the prosecutor put those images up from the video that was shot during this, where you see Arbery running and pickup truck and the guy with the gun in the pickup truck and, you know, going to left, going to the right, seemingly according to the video, or the stills from the video, making an effort to avoid what she described as false imprisonment.

MOORE: Right.


SCIUTTO: Are those images powerful to a jury as they're making a judgment like this?

MOORE: Absolutely. I mean her job today is to remind this jury that these men chased Ahmaud Arbery down the street like an animal. And they ran him down like you would if you were chasing a cow in a pasture.


MOORE: And that's really -- and so she -- she's going to play that over and over and she's going to repeat that over and over and all the niceties and all the fact and, you know, that somebody did something in their past life or learned about some kind of police stuff or whatever it is, you know, those things are going to maybe drift to the background. And they may linger in the jury's deliberation somewhat, but her job today is to make it real, to make it common sense, and to remind them that this was a senseless killing of a young kid who was being chased through a neighborhood simply because he didn't fit within the neighborhood.

HILL: In terms of not fitting within the neighborhood, Elliot, I think it's obvious that throughout this case the prosecution has really tried not to directly address race. It has come up a couple of times, but it was not a central focus of this case.

How effective do you think that was in terms of a decision?

WILLIAMS: You know, look, Erica, I've got a little bit of experience, both as a black man and as a prosecutor. And I've spent a lot of time thinking about this very issue. And I don't know if I'm arguing this case in Brunswick, Georgia, that I even say the word race once. Look, this is not D.C. or Baltimore or Brooklyn and you have to know

the jury. And I actually think if there's anything that would turn off this particular jury -- and I don't -- you don't have to like the fact that it's 11 white people and one black person. I mean that was itself an infirmity in the trial. But that's what you got, right? And the one thing -- or one thing that very well might turn off that jury is feeling like a prosecutor is wagging their finger at them about their own racism in the community.

So, it was probably a wise strategy to not hit it very hard, mention it in the closing statement. And, look, there is a federal civil rights trial coming where all of the allegations of the use of the "n" word and Travis McMichael's Internet history might come up. So, I do think it was a wise strategy, yes.

SCIUTTO: Michael, did that change? Did the circumstances, did the conversation in that courtroom change when yesterday we heard one of the defense lawyers make seemingly irrelevant reference to the toenails of Arbery as -- and you heard, I mean, you know, practically gasps from the courtroom? What was the intention of that, in your view, having been in a courtroom before, and did that bring to bear what Elliot was just talking about there, this issue of race?

MOORE: Yes, I think so. I mean, I don't think he escaped the overall -- or the overarching idea that race is in the case and I -- and I agree, the prosecutors want to make it sort of the key issue for their -- for their case.

I thought the comments were not appropriate. I was disturbed by them and didn't agree with them.

My belief, though, is that she's -- I know Miss Hogue (ph). She's a very good lawyer. And I expect that she had some reason, you know, whatever it was, to say what she did. Doesn't make it right. Doesn't make it appropriate. Doesn't make it more palatable. But maybe she's got her -- her -- sort of her finger on the pulse of a juror or a jury from things that we don't know about jurors, (INAUDIBLE) were said. And so it was an unfortunate moment and a disturbing moment in the closing, but also it was disturbing to hear about our neighborhood, our this, just reminds me of division, it reminds me of who fits, who doesn't fit, who belongs, who doesn't belong, and that's -- and that's disheartening. And it's a sad commentary maybe on where some communities remain in the country.


HILL: It's a very sad commentary. I mean, you know, Michael, just to push you on that, you say you know her, you know she's a good attorney. You can be a good attorney, but, still, I mean, is that a smart, legal decision? Do you think this is really all about, I'm zeroing in on one or two people on the jury who I think will maybe, you know, lean into this with me, this completely irrelevant, inappropriate statement?

MOORE: Let me -- well, she -- from a defense attorney's side, your job is to fight to try to protect your client and to -- to -- to get your client an acquittal, or at least get them a hung jury. And so you're going to throw the gauntlet down to try to -- to -- especially if you know there's one particular juror that maybe that juror is a runner, maybe that juror -- whatever the case may be.

So, you know, again, I don't think, and from the overall theme of the case, that the comments were appropriate. I didn't like them at all. But my suggestion is that, a win in this case for the defense can be a hung jury.


MOORE: You know, they're going to have to fight the civil rights case. You're exactly right about that. I mean that's going on. And a retrial in this case, I believe, I would certainly hope and encourage, if there -- if there was a hung jury.


But the defense attorneys, as a group, you take tough cases, tough clients and you try to get at least a juror, because you only need one to be the holdout for you.

WILLIAMS: Let me add one -- one tiny thing to that. (INAUDIBLE).

SCIUTTO: We should note - just briefly, Elliot, because we've been waiting for the jury to come back into the room. We should -- the judge is back in the room. He's called the jury back. Once they bring them back, we'll go to it.

But, Elliot, please do add your two cents.

WILLIAMS: Two sentences. That starts -- that starts with jury selection. You getting the black people off the jury by asking them race neutral, quote/unquote, questions, but really are designed at the race, hey, what neighborhood do you live in, what's your zip code and (INAUDIBLE) got them (ph).

MOORE: Right.

SCIUTTO: OK. The prosecutor seems to have restarted. Let's listen in.

DUNIKOSKI: And we're back to, did the offense happen in your immediate presence or in your immediate knowledge? How do you get immediate knowledge? Meaning, immediately it happened, synonymous, right? So that isn't rumor, gossip, hearsay that a crime has been committed or that some other person thinks this other person committed a crime. You can't base your citizen's arrest on that sort of stale information from unreliable sources. That's not what you can do. OK. You can't base an arrest on gossip alone. Facebook does not alone give you probable cause to go arrest somebody.

Rumors in the neighborhood do not give you probable cause alone to go and arrest somebody. That's not what immediate knowledge is.

A private citizen's warrantless arrest must occur immediately after the perpetration of the offense, or in the case of felonies, during the escape. OK.

So, what's that mean? Why is warrantless highlighted? OK. Because a citizen's arrest is a warrantless arrest. You don't have an arrest warrant that, you know, a law enforcement officer has sworn out before a judge at all. This is a warrantless arrest. And so for the warrantless arrest, under citizen's arrest, the arrest must occur immediately after the crime was committed, or in the case of a felony, during the escape, that means the person is escaping, you're chasing them and you have to arrest them right then and there. That's what that means.

Now, remember, the defense got up here and said, well, of course, how would a law enforcement officer ever arrest anybody if the crime happened over here and then they arrest them later? Well, we all know that law enforcement officers go out and get arrest warrants. OK. That's what they do. They go ahead and they know -- they know Linda has been committing shoplifting, OK. They get called. They witness her. She runs out, OK. They don't arrest her that day.

So, what does the officer do? He takes out an arrest warrant for her. That's how she gets arrested later on the arrest warrant for shoplifting because she wasn't arrested by the law enforcement officer on that day when he saw her shoplifting, he takes out a warrant and arrests her later. So that answers that question that the defense brought up.

All right, law on citizen's arrest. If the observer fails to make the arrest immediately after the commission of the offense, or during escape in the case of felonies, his power to do so is extinguished. OK. So, when you're in the store, and the woman shoplifting, and you go to do a citizen's arrest, you have to do it right then and there. She comes back in the store four days later, yes, you can't arrest her. You can't do a citizen's arrest four days later. It has to -- if you fail to make that arrest immediately after the commission of the offense, you have no power to do a citizen's arrest.

In other words, I mean, in other words, I mean this is what we're talking about. We're talking about citizen's arrest for emergency situations.


DUNIKOSKI: Emergency situations.

UNIDENTIFIED MALE: I object to this interpretation which is a misstatement of the law.

UNIDENTIFIED MALE: We join in that objection.

WALMSLEY: Keep going. It's noted. This is the argument that's being made. That's -- I've already addressed that.

UNIDENTIFIED FEMALE: Except that it says law on citizen's arrest, not the inference as the court was making clear to the state. Not their interpretation, but the law it says. WALMSLEY: OK. This may be semantics with the slide, I don't know, and

I have not gone through the slide. But the law of the case will be provided by the court. All right. This is argument. This is the state's argument concerning what should be the facts of the case, and how to apply them to the law. The slide to the extent that it indicates that this is the law on citizen's arrest is, again, as I understand, demonstrative.


The court is going to provide that.

Miss Dunikoski.

DUNIKOSKI: Thank you.

It says, in other words, this is me sort of summarizing it for you, this is the state's argument. You all understand that, right?