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Prosecutors Deliver Final Rebuttal in Arbery Murder Trial. Aired 9:30-10a ET

Aired November 23, 2021 - 09:30   ET

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

[09:30:00]

JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT, STATE OF GEORGIA: The court is going to provide that.

Miss Dunikoski.

LINDA DUNIKOSKI, PROSECUTOR: 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? This is just the state's argument. And the state's argument is that citizen's arrest is for emergency situations when something is happening and they're right in front of you and you want to go ahead and act as a citizen and arrest the person because you just saw the crime happen. That's what it's for.

So, what we have is, I'm sorry it says law on citizen's arrest. This is, once again, a summary slide done by the state. This is the state's argument to you. That the crime is committed in your presence, immediate knowledge is not the unsupported statements of others alone, that a private citizen's warrantless arrest must occur immediately after the offense, and if it's a felony and the offender's escaping or attempting to escape, you can chase them and then make your arrest. OK. That's it in a nutshell right there.

All right. So, we're going to apply that law to the facts of this case, right? So what crime are we talking about that they thought he had committed? Was it clear to you at all, based on their closing arguments, what they were talking about?

All right. Well, it can't be October 25, 2019, because Ahmaud was on the dock and he didn't take anything. All right.

So, what do we have? Well, we don't even have criminal trespass because criminal trespass is when you enter on the property of someone else to do an unlawful act. All right. You decide. Did he did enter on to 220 Satilla (ph) Drive on the dock to commit an unlawful act? Well, go ahead and look at the video. Didn't touch any of that stuff. Didn't steal any of that stuff out on the dock. Wandered around and looked around on the dock.

All right. Let's talk about Larry English here. Larry English was not concerned about people there in the daytime. He didn't bother to even collect those daytime videos. Kelly Park (ph) told you, yes, there was a Sunday, I saw Ahmaud there in the doorway. Now, we don't if it was December or January. Larry English couldn't have cared less. Might have been instances of other people there during the day, but he couldn't remember because he didn't care about people coming on the property during the day.

What he did tell you? He told you he could remember his subcontractors were there, the kids came over there, and Mr. Billy (ph). I don't know who Mr. Billy is. He would sometimes shut off the video cameras and not turn them on for days. Remember in his deposition, he said, yes, I'd shut them off because they kept going off because people were over there and I'd forget about them and not turn them on. OK. So he's concerned about his property, but he's concerned about liability because of those kids. He doesn't want one of those kids falling off his dock.

Earlier, English, he's a contractor. And, by the way, Larry English is the one who referred to it as a construction site. Remember, during his deposition, he called it the construction site. And his experience, it's very common, as a general contractor, to have people come in and out of the construction site. And what did he tell you? He told you this in his deposition, nothing had ever been stolen from the construction site in all of 2019 and the first two months of 2020.

Let's be really, really clear. This whole boat thing, that's a red herring. All right. Total red herring. Nothing had been stolen from the construction site. And you can see how much stuff is in there. You got lumber. You got all this stuff. Mr. Arbery never shows up with a bag, doesn't back a U-Haul up to it and start loading out that big saw or anything like that. What does he do? He wanders around inside for a few minutes and leaves. That's all he does.

But during late October or the beginning of November 2019, we have no idea what the actual date is, Larry English climbs up a ladder and looks down into his boat that's parked there and goes, oh, my gosh, my stuff's missing. OK, He notices it sometime the end of October, beginning of November. He can't even tell you what date that was. OK. And he calls Rash, and he goes, OK, Rash, you know, what do I do? And he talks to Rash about this and says, well, I don't know when the stuff was stolen. I don't know who stole it. I think it was my subcontractors who stole it. They're the first subjects -- suspects.

But he also notes that the boat had been back and forth to Douglas where he lives during this timeframe. So, Larry English, when he's talking to Rash, now notes, I don't know when it was stolen, I don't know who stole it, I don't know where the boat was and he decides to not even get the police involved because, what does Rash say, if you want to report it to the police, what do you do? You call the non- emergency number and an investigator will come out and take a report from you, will interview you, figure out what everything is.

But what are the suspects from Larry English's point of view. Well, it's his subcontractors, it's the lookie-loos (ph), the white couple with the bag. I mean that's in the 911 call. He thinks they're the people.

[09:35:02] And then it might have been the four teenagers in Douglas.

So, it can't be sometime in October, November, when Larry English noticed the items missing from the boat, OK, because we don't even have enough for Larry English to call the police and even do an investigation into this because he doesn't know where the boat was, much less what date the stuff was stollen off the boat was. We don't know what date this took place.

So, he never told Travis McMichael, never spoke to Greg McMichael, never talked to William "Roddie" Bryan about any of this. This boat thing. OK. Travis McMichael knew the boat thing from gossip. An unreliable source. Stale information. Who told it to him? He told you. His mother.

Greg McMichael knew about this from Officer Rash. And what did Rash tell you? Yes, I went down and talked to Greg McMichael and told them that Larry English had stuff stolen off his boat and that he suspects his contractors. They knew better.

What was the intent? I mean Officer Rash told you, my intent here was for Greg McMichael to be a good witness for the police. He's supposed to be a good witness. If he sees the guy over there again, he's supposed to call 911. And then he's supposed to go, hey, he went this way, he went that way. That's what he's supposed to do, be a good witness.

Greg offers his contact information to Officer Rash to give it to Larry English, but Larry English never gets this text. He totally ignores it. He never makes contact with Greg McMichael, never authorizes Greg McMichael to act on his behalf at all.

Now, Larry English, it's completely reasonable. I mean, look at this, this is what the actual owner of the property wants to have happen. This is what the owner wants. Find him, talk to him, and tell him not to come back. OK. That's a totally reasonable response. Completely reasonable. Just, Officer Rash, just tell the young man to please stop coming on the property. Because, what happened? My blink alarm thing goes off and then I have to call the police and then I have to call Diego Perez (ph) and this is a real hassle. He never takes anything, never steals anything, but, you know, my camera's going off. Can you just tell him not to come back anymore?

What did Officer Rash tell you? One of the last questions Officer Rash was asked on the stand, what did he say? Well, if Larry English had called the Glynn County Police Department to report the theft of items from his boat, what would have happened? An officer would have been assigned to investigate the case. Meaning, he would have interviewed Larry English.

What would he have said to Larry English? Sir, what was taken? When was it taken? Well, Larry English wouldn't have been able to say when. And, who took it? Well, it was my subcontractors, I think. But then there is this white couple, I think. And, by the way, I think they're living under the bridge, and, you know, I don't know. And then there's this young man who keeps coming in but he never takes anything. So, this idea that Ahmaud would be a suspect, he's a suspect along with a whole bunch of other people, OK.

So, here's the problem. If you're a suspect and you're a suspect and you're a suspect, the police don't automatically go, I'm going to arrest him. I mean that's not what they do. They actually investigate it, right? Like -- like law enforcement officers. So the idea would be that an officer would go and look into it. That's exactly what Rash said on the stand. You remember this? He said, Ahmaud might be a suspect, but he would look into it. We don't even know when this stuff was stolen. Ahmaud would not have been automatically arrested just because Larry English made contact with the police. There would have been an investigation. That's what Rash told you. Rash, an actual law enforcement officer with a badge, in a marked patrol car.

So, then we've got the white couple with the bag. He calls the police on December 2nd. They're the suspected boat thieves now. Remember, even on December 1st, he's calling the police going, yes, these are the thieves who stole stuff off my boat. I want you to go and check them out.

Now, here's what's really important. Larry English called the police and said, please go check out the white couple, they're homeless, living under the bridge. He did not go himself to confront the people under the bridge. I want you to compare and contrast this. Because what do we know about Greg McMichael and Travis McMichael at this point in time? July 13th, they went down and confronted the homeless man under the bridge with their guns. And then called the police to tell them about it, there's a shady looking guy.

February 11th, Travis McMichael, runs home, tells his dad, they get their guns and they head back down to 220. He says, I'm calling parked in front of 220. All right. Where is Greg McMichael at that time?

[09:40:02]

He's inside with his gun about to run into Diego Perez (ph), who's inside with his flashlight and his gun. Neither Diego Perez or Greg McMichael offer (ph) to tell Officer Rash that they've both have been inside already with their firearms on February 11th, did they? Nope.

And you'll note that the 911 operator stayed on the phone with Travis McMichael the entire time until Officer Rash arrived. That's important. Stayed on the phone the entire time so Travis could keep reporting what he was seeing.

So now, November 18, 2019. They don't know anything about November 18, 2019, until they're shown some videos on February 11th of 2020. So they don't even know about this. And it can't be December 17, 2019, because nobody knew about that at all. Even Larry English. I don't know. I found these on my phone. I never paid attention to them. Police weren't called. Nothing happened. OK.

But what do we know? OK. A couple of things. Let's look at this. I want you to watch this. What's Mr. Arbery doing? More importantly what's Mr. Arbery not doing? All right.

Here's the thing. All right. I'm going to -- I'm going to do this. I'm really scared, but I'm going to do it. It's pitch black. It's pitch black. I'm in the house. I can't see. I know there's a table. I seriously do. There it is. OK. Did you see Mr. Arbery do that? Did you see him do this? Did you see him run his shin into anything? Did you see him run into any of this furniture or this equipment? They keep claiming it's pitch black in there. Does he look like he's acting like it's pitch black? OK. No. I don't know how he's seeing. I don't know if it's a street light. I don't know if it's the moonlight. I don't know if it's a combination of those things. But, for him, he can see what's going on inside.

How about here. Just skirted that lawn mower. Didn't run into it. Didn't bash his elbow on it. And here's what we know Mr. Arbery did on December 17th, after he went in there, for a few minutes, and looked around, didn't take anything, didn't damage anything. This is what he did.

There we go. So, can't be February 11, 2020, that's not the crime we're talking about that they're trying to do a citizen's arrest for, because a private citizen's warrantless arrest must occur immediately after the offense, if you fail to immediately arrest, you can't arrest later. OK.

And what do we have here? Well, we know what we have here. We have criminal trespass at the most according to law enforcement Officer Rash, who then said it was loitering and prowling.

But, first off, I want to address this. Empathy once again. Where is the empathy from Travis McMichael? Travis McMichael's point of view is, I pulled up and I got out of the car and had a confrontation with this guy because I was about to say, what are you doing here and then he put his hand near his pocket and then I jumped back in my car.

Well, OK, let's think about this. Empathy. Do Ahmaud's actions afterwards, does it look like he thought he was just in a confrontation when he walked into the house on February 11th? What did he do when he walked into the house on February 11th? Walked around. Wondered around and looked around for a few minutes and was gone by the time Diego Perez gets over there with his gun, right?

So what do we got? Does it look like he just saw someone in a car out front and it was no big deal to him. I don't know. I don't know what he's thinking. I have no idea.

You saw the video. What does it look like from the video? Is he in there hiding? Is he in there crouched down? Or is he just wandering around as usual inside?

Remember, no one had ever told him to not be on that property.

So, the thing is, what you're saying to me is, you're going, but, Linda, the defense got up here and said he's a burglar. He's a burglar, he's a burglar and he committed all these burglaries. Well, why are they saying that? Well, because they want it to be burglary, so that's a felony. So if he's escaping from that felony that he committed, that burglary, they can chase him down.

[09:45:03]

But they didn't know he had done anything that particular day on February 23, 2020.

What's burglary? When without authority, and with the intent to commit a theft therein, that person enters or remains within the dwelling of another. OK. Criminal trespass. When that person knowingly and without authority enters upon the land or premises of another for an unlawful purpose. OK.

So, what do you got? Kind of really similar. One's a felony. One's a misdemeanor, right? Criminal trespass, a misdemeanor.

So what's really important right now is, what did the defendants know on February 11, 2020? What did they know?

UNIDENTIFIED MALE: Some guy (INAUDIBLE).

UNIDENTIFIED MALE: The driveway. There's some blacks right in there.

UNIDENTIFIED MALE: Is that right?

UNIDENTIFIED MALE: They -- as a matter of fact, you know, come to think of it, I keep forgetting about this (ph), they have some kids that age that hang around that house.

UNIDENTIFIED MALE: Yes. Well, I've been there for an actual -- a report of alleged assault or whatever, and it's -- the kids they have are only females. Now, I don't know if it's one of them's boyfriends. They only had daughters there. So it could be, unless somebody's moved in with them or whatever, but, yes, nobody seems to know who this kid is, where he's coming from. But, like, he's always -- all the times on the video that Mr. English sent me, he sent me one now, it's always been just in there plundering around. He hasn't seen him actually take anything. I said, so, --

UNIDENTIFIED MALE: You know, it's criminal trespass.

UNIDENTIFIED MALE: Yes, yes, at the very least. So, loitering and prowling.

UNIDENTIFIED MALE: (INAUDIBLE). I had reported it stolen on the 1st right down the road. Now we did have -- I took a report down the road here, the house on the corner, the guy where the Jeep and all is, he had some stuff stolen of some guns stolen, but we got on video the car that people that come in and stole them. They were from another neighborhood.

UNIDENTIFIED MALE: Yes.

UNIDENTIFIED MALE: How you all doing?

UNIDENTIFIED MALE: What's up, man?

UNIDENTIFIED MALE: Hey, Greg.

UNIDENTIFIED MALE: Hey, bud.

UNIDENTIFIED MALE: Good.

DUNIKOSKI: What did they know? In front of Travis McMichael, Greg McMichael specifically says to Officer Rash, this is criminal trespassing, a misdemeanor. Why is it criminal trespassing? He's never taken anything. He's never stolen anything. Nothing had ever been taken from the construction site. Officer Rash says it's loitering and prowling.

So, on February 11, 2020, at 7:30 at night, Travis McMichael and Greg McMichael know there is absolutely no evidence that Mr. Arbery has committed any felony or theft from the construction site from the owner himself and from a police officer. This is what they know on February 11th.

What was Officer Rash's plan? This is important. Officer Rash, Glynn County police officer, what was his plan when it came to Mr. Arbery? It was to get his identity information, inform him that this was private property, call Larry English in front of Ahmaud Arbery, put him on speakerphone, let the owner, the owner, Larry English, make the decision to either just ask Ahmaud not to come back or to have the police trespass him, meaning, I'm giving you an official trespass warning. If you ever come back here again, you'll be arrested. This was officer rash's plan. Reasonable.

This is what Larry English wanted. Just somebody telling him to not to come back, please. That's all. That's all.

Robert Rash took the stand. He said a couple more things that were very, very important in this case. How do you identify a burglar? He was asked by the defense this. What did he say? Caught taking something from the house. This is your Glynn County Law Enforcement Officer Rash, who's on the case, who's been talking with Larry English constantly, knows all about this. What did he say to the defense? How do you identify a burglar? Because they get caught taking something from a house.

Then he was asked, but wait a second, isn't burglary, you enter with an intent to commit a felony or theft therein? What did he say? How would I know what his intent was? Right. Right. How would Officer Rash know what Ahmaud Arbery's intent was? Right there. Said it right at the stand.

But the defense, of course, says, well, there are things of value in there. OK. But those things of value have been in there. They were in there all of 2019. They were in there October, November, December, January, and February. And they were never stolen or taken. Ever. By anyone. Including Mr. Arbery. He's not a burglar. All right.

[09:50:00]

So how do you analyze this case? Well, was it a citizen's arrest? You decide. But if they were not conducting a lawful citizen's arrest, you do not have to consider -- you still may if you want to, but you don't really have to consider self-defense because if it's not a lawful citizen's arrest, that they were the first unjustified aggressors and they were committing felonies against Mr. Arbery, and therefore they don't get to claim self-defense. And you can go directly to the charges in the indictment.

So, it's not a citizen's arrest. This is the state's argument. No crime. Not a burglary. Not criminal trespass committed in the defendant's presence. None whatsoever. The suggestion that the victim committed a burglary in 2019, you can't arrest him now because he's not escaping from those things. Think about this. How is someone escaping from October 25th out on a dock? How is someone escaping from February 11, 2020, on February 23rd? OK. That is irrational.

Wanting to question the victim demonstrates their uncertainty on what he had done that day and wanting to question the victim demonstrates a lack of immediate knowledge which is required for a lawful citizen's arrest. They didn't see him commit any crime that day.

And the state's not saying he wasn't at 220 Satilla Drive. We all know he went in there, and wondered around, and then came out, and then ran off down the street. We all know that. They didn't know that.

So let's go ahead and take a look at the evidence in the case. So, first off, once again, where are we, Satilla Shores, Royal Oaks is next door. Fancy Buff. That's where Ahmaud Arbery lives. There's U.S. 17. The expressway is over there, 95. Ahmaud Arbery.

Yesterday, Laura Houge (ph) got up here and she gave you criminal defense 101. Usually criminal defense 101 is no crime actually took place. Now the crime's on video. My client didn't commit the crime. Well, yes, your clients are on the video committing a crime.

Criminal defense 101, step three, it's the victim's fault. Standard, standard stuff. Malign the victim. It's the victim's fault. I know you're not going to buy into that. It's offensive.

He lived 1.8 miles away. There was his residence. There's the house under construction. Only 1.8 miles away. February 23, 2020, at 1:08 p.m., Mr. Arbery walks up to the open, unsecured construction site, we have our Olson (ph) video. Remember, it's off by an hour and five minutes.

Heard the video from inside 220, Mr. Arbery does not take anything. Just does what he always does, wanders around, and leaves. It's not a burglary. OK. How would you know what his intent was? Well, did he steal anything? No. Did he leave, like he always does? Yes.

It's a Sunday afternoon and Mr. Albenze calls the non-emergency police line at 1:08. I said to him, why didn't you call 911? Because this was not an emergency. It wasn't an emergency. Mr. Albenze, just another guy over a that house, again. The house that's unsecured. Doesn't have a fence. Doesn't even have no trespassing signs on. Can you send somebody out? (INAUDIBLE). Not an emergency.

Greg McMichael is in front of 230 Satilla Drive alone and he sees Mr. Arbery running down the street. Driveway decision one, how do we know he didn't witness any crime? But the whole thing started when I saw this guy running down the street. He does not know that Mr. Arbery was inside 220. He only sees him running down the street.

Travis McMichael certainly didn't know anything. He's inside on the sofa. Greg McMichael assumed the worst. And so I thought, well, you know, he's running from somebody. He's just done something. You know, he might have hurt somebody or whatever, because, you know, this guy's been in and out of that damn house -- one house over and over and over again, got him on videos and everything.

That is not sufficient for a citizen's arrest. This is not probable cause. This is, I don't know what in the world this guy was doing, but he was running down the street real fast. That's what this is.

And, remember, he's talking to the police about what he believed Ahmaud Arbery had done that day.

[09:55:04]

He must have done something today, he's running down the street. Let's chase after him with guns. That's what happened.

Driveway decision, Greg McMichael choses to arm himself with a handgun, Travis McMichael choses to arm himself with a pump shotgun. These are their choices. Travis McMichael had his cell phone but Greg McMichael does not take his cell phone to him.

All right. This is really important, ladies and gentlemen. On February 11th, the 911 operator stayed on the phone with Travis McMichael the entire time, right? If Greg McMichael had actually made contact with a 911 operator, what would have been happening inside the truck? He would have been on the phone with that 911 operator going, yes, he's going this way, he's going this way, he's going that way, OK? The fact that Greg McMichael was not on the phone with 911 giving them a play by play tells you that Travis and Greg knew they weren't -- they had not called 911. Travis knew his dad hadn't called 911, OK? Neither one of them called 911. They had no intention of calling 911. Just like they went and confronted the homeless guy under the bridge and then called 911. Just like they ran back down on February 11, 2020, to the house and then called 911.

What did they do? They get their guns, they go to do a confrontation, and then called 911. Greg McMichael didn't even bother to take his cell phone with him. Obvious that Travis did not call 911.

Travis McMichael, 60 seconds after Mr. Arbery has run past 230 Satilla Drive, he makes his driveway decision. Doesn't tell his dad to calm down. Doesn't tell his dad that, no, he's not getting his shotgun and running after somebody. Not -- doesn't tell his dad this is a really, really bad idea, we shouldn't do this. No. What does he do? His white F-150 pickup truck backs out of the driveway and heads in the direction that Mr. Arbery was running.

This happens after he gets his shotgun and getting into his pickup truck. Travis McMichael testified that he went to the end of the driveway and he saw Mr. Albenze point one time down the street. There was no verbal communication by Mr. Albenze with the McMichael's. That was a lie. I want to focus your attention up here, ladies and gentlemen. What we

have here is 2:13:25. Can you all see this OK? Am I blocking your way? All right. So what we have here, as you can see, is Mr. Albenze, right? Here's the black car. You remember the black car goes by and Mr. Arbery runs the other way, down this way, right?

So let's go ahead and play it. There goes the black car. Mr. Albenze is there. There goes Ahmaud. Do you see him? Right there. Ahmaud's running, running. There he goes. Right there. You see him? Down the street. And there he goes. All right.

Then what happens? See the white truck right here? You're looking at it. Somebody comes out. Goes to the door of the truck. Mr. Albenze is still right here underneath the tree. Somebody else comes out. Do you see the second person come out and go around the front of the truck? Greg McMichael. Because where's Greg McMichael? Greg McMichael has gone into that -- sitting in that car seat, right?

Second person comes around. Then what happens? Then Mr. Albenze walks down the street. He's walking. He's walking. He's walking. He's walking. Truck pulls out. Wow. Truck pulls out. Mr. Albenze does his pointing when the truck is already pulled out and going down the street. Want to see it again? Back it up.

Here we go. There's Mr. Albenze. Here's the black car. There goes Ahmaud running down the street. There he goes. This is the white truck.

[10:00:01]

He's still underneath here. There comes somebody to the truck.