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Prosecutors Deliver Final Rebuttal in Arbery Murder Trial; Judge Instructs Jury Ahead of Deliberations. Aired 10:30-11a ET

Aired November 23, 2021 - 10:30   ET




JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT, STATE OF GEORGIA: All right, ladies and gentlemen, we're going to take a ten-minute recess, then we'll come back with the charge of the court. Do not begin your discussions or deliberations in this case until you have received the final charge of the court. Again, about ten minutes and we'll come back and get that onto the record. Thank you.

UNIDENTIFIED MALE: All rise for the jury.

JIM SCIUTTO, CNN NEWSROOM: We just saw the final rebuttal from the prosecution in the trial of the three men accused of killing Ahmaud Arbery. It was methodical. It was thorough, nearly two hours long, at times impassioned. The final words, though, notable to the jury as in a few minutes they're going to begin their deliberations. She says this is not about point of view. It's about facts. She says it's not about whether the defendants are good or bad, it's about responsibility.

And, Erica, it was quite a powerful moment at the end where she says responsibility for turning this young man, that is the then living Ahmaud Arbery, into that young man, referring -- and you couldn't see this as we were watching because it was off camera -- to the pictures from the coroner's office of his dead body.

We should know this also happened off camera, Erica, and I thought notable that his father left the room as those pictures went up on the screen. Her moth his mother stayed but she was visibly, understandably distraught.

ERICA HILL, CNN NEWSROOM: Absolutely. And as a parent, I think it's understandable that anyone -- how they would feel that way, even the decision to leave. You talked about this being methodical, Jim. Really, the prosecutor going through every single point, walking us back through much of the testimony that we had heard in this trial as she rebuts. What we heard from the defense and their closing arguments yesterday, talking about how they made their decisions, what those decisions resulted in, laying all that out. So, the big question, of course, will be was it effective once the jury does begin its deliberations? Joining us now to discuss, Federal and White Collar Attorney Caroline Polisi, Defense Attorney and former Federal Prosecutor Shan Wu, Ryan Young is also live for us in Brunswick.

Shan, I want to begin with you. As a former prosecutor, as you're watching the way that this unfolded, yes, it's what you want a prosecutor to do in a rebuttal, right, rebut what they have heard from the defense. But what else stood out to you in the way that Linda Dunikoski laid this out?

SHAN WU, CNN LEGAL ANALYST: I thought she did a good job. She really tried to give the jury the high points they should focus on. And, to me, what I came away with was this idea that the knowledge that the defendants had simply doesn't add up to give them a basis for this alleged citizen's arrest defense. I thought she did a very good job of using the video, going through what can be a complex timeline, to show they really had no reasonable basis or even to know at all that a crime had been committed.

And that implicitly focuses it back really on the racial animus. As we heard in that recording, the crime is a black guy running down the street. So, I thought she did a very good job of that as well as tying in how the non-shooters are the party to the crime under their theory.

SCIUTTO: Yes. Her line there, what's your emergency? There's a black man running down the street, her paraphrase of the 911 call.

To your point, Shan, she made a clear distinction because there had been some portrayal in the defense perhaps based on McMichael's experience in the Coast Guard that he was somehow a qualified law enforcement officer or someone able to make law enforcement judgments, she referred to the testimony of someone she identified as an actual law enforcement officer with a badge and said that based on what was known, there would have been no arrest by someone in uniform.

So, Caroline, and that leaves to other defense strategies, of course, which is going after the victim to some degree. And I want to play one response that the prosecutor used to that defense argument, get your reaction. Have a listen.


DUNIKOSKI: Laura Hogue got up here and she gave you criminal defense 101. Usually, criminal defense 101 is no crime actually took place. Now, the crime is on video. My client didn't commit the crime. Well, we have your client on the video committing a crime. Criminal defense 101, step three. It's the victim's fault, standard, standard stuff.


SCIUTTO: Do you agree, Caroline Polisi, that that's where, in effect, the defense stands at this point, that she characterized that powerfully or impactfully rather to the jury?

CAROLINE POLISI, FEDERAL WHITE COLLAR CRIMINAL DEFENSE ATTORNEY: Well, absolutely, Jim. I think she was rightfully so calling out the defense attorney's arguments yesterday, some of which were really out of line and inflammatory, specifically with respect to the long, dirty toenails commentary.


That clearly was a dog whistle to any racist jurors sitting on that jury panel. The defense attorney did what she thought she had to do, and the prosecutor there was really calling her out for that.

I think the real issue here that Shan aptly noted is this citizen's arrest law. And you saw them, the defense attorneys, actually object in the rebuttal by the prosecutor earlier today, which is a pretty drastic move, moving for a mistrial, saying that the prosecutor had actually misstated the law. They're actually arguing over the temporal boundaries of when a citizen's arrest can be implemented by a citizen and whether that -- the crime and/or felony had to be committed within the direct presence or sometime thereafter.

Really, that's all the defense has their hat to hang on in this trial. And if they don't get the benefit of the citizen's arrest law, their whole case goes down the drain, because then they don't get to argue self-defense. So I think that the defense honed in on really the key points of this case. But I think the prosecutor did a great job rebutting it.

HILL: In terms of that self-defense claim she made very clear from the beginning here, Shan, you can't claim self-defense if you're the one who started it. Did she make that point effectively today?

WU: I think she did. I think she's done a really good job with using the totality of these circumstances, because sometimes you want to really break it down moment by moment to show that a split-second decision actually was something much longer, and that's what the defense wants to make it look like, is that this is a split-second decision, that Travis was in fear for his life. And what she did a good job of doing was showing the totality of what led up to that, really undermines that idea, you know?

And to Jim's point about the idea of portraying him as a law enforcement background training with the Coast Guard, you know, I call that the best of both worlds defense, which is on the one hand they want the vigilante to be portrayed as doing things by the book. He is trying to de-escalate. But at the same time they want to say, oh, he was really a scared, frightened citizen in fear for his life the way any of you might be afraid for. And so they're trying to have the best of both worlds there, and I think she, the prosecutor, did a good job of really undermining that point.

And I think also to Caroline's point about the portrayal of the victim that really racist remark that was made, I mean, I think one interesting comparison to the Rittenhouse trial is what a difference it makes when you can call victims victims.

SCIUTTO: Yes. Well, and another comparison, by the way, very different cases, is the idea that in each case, the defendant said it was their weapon that they brought that they were fearful that the other person was going to take away to justify the threat to themselves, which I do want to get your sense of that legally, but we do have Ryan Young there outside the courthouse now. He's been covering this trial since the beginning.

And, Ryan, one point I think worth noting to viewers is that some of the legal drama here took place with the jury outside of the courtroom.

RYAN YOUNG, CNN NATIONAL CORRESPONDENT: Yes, absolutely. You think about everything that's played on outside the court so far, you think about all the statements that Kevin Gough has made over the last two weeks or so, and it's really sort of enflamed the feelings in this community. You think about all the black pastors who arrived after saying he didn't want black pastors. And you think about the fact that there have been protests in the street directly responding to what the lawyers have been saying in court.

And one thing I wanted to pick up on, Jim, that you brought up is the pictures that were shown in court. You could really feel the change every time those pictures were shown. And when you think about parents sitting in a court and having to see the dead body of Ahmaud Arbery sitting there next to his picture of when he was alive, it was something we couldn't show because it was quite graphic, but it really -- every time they've shown those pictures, the court watchers have told us it has changed the tone inside the court.

I mean, there have been conversations about one juror who was apparently falling asleep at certain times. We know every time the video is shown. We know every time those pictures are shown. Nobody is not paying attention to what it is, so you feel that when you get it all together. And that picture really stuck with me as they showed it in closing and she put it up on that screen. It really took your breath away to think about what's how she was ending this today.

HILL: And that's the -- to your point, Ryan, that's the image that she wanted to believe the jury, the ultimate outcome of this situation is the death of a young man in a very graphic way.

One of the points, and, Shan, you touched on this a little bit, but she also really drilled down on William Roddie Bryan being a party to the crime.


Because we know that his attorneys were hoping that maybe that would not be the case. And she set this up. She used the analogy of a bank robbery, that if you're driving the car, if you were on lookout, you are still just as guilty as the person who pulls the trigger if someone in your party went in there and shot the security guard at the bank.

Do you think that's something that, as a jury, they are going to follow that? Yes, it's the law in the state of Georgia. Was that the right analogy for her to show why all three men, when it comes to the law in Georgia, would be equally guilty? WU: I think that's exactly the analogy she had to make. Bank robbery is a good one because, here, his defense, Roddie Bryan's defense, is really that he is really just the guy filming this on his camera. He has got nothing to do with it. And I thought she did a very good job of using the statement he made, you all got him, and him jumping into the fray.

So, I think for most people, well, common sense, they understand the idea of driving a lookout vehicle, that's how he can still be involved in a felony murder that occurs inside the bank. So, I think that was a good analogy. And I think it's a tough call. There have been questions -- I have questions whether she made a bad strategic choice not focusing on race more. You have to play to what you know with your jury, but you also have to trust the jury. And she's trusting the jury here that they're going to follow the law and they're going to use their common sense. And that's what she's really asking them to do.

SCIUTTO: No question, and repeating that it's about the facts of case, not about point of view or the goodness or badness of the defendants themselves involved.

Caroline Polisi, I do have a question because, again, very different cases, but in both the Rittenhouse case and this one, you have the defendant saying, justifying self-defense by saying I had my weapon and I was fearful that the other person might take that weapon and turn it on me, how does the law see that, particularly when a person brings the weapon to the fight, as it were?

POLISI: Exactly. And, you know, the prosecutor sort of made that point in her closing, not necessarily in rebuttal, but she said, you know, they were the ones that brought the gun to the knife fight, so to speak. Well, in this instance, they brought a gun to Arbery's jog.

So, there is -- in the law, there's this idea of proportionality, and the prosecutor made that clear that when you have a self-defense claim, you can only use a proportionate amount of defense to make yourself sort of safe in that regard.

And so what is a proportionate amount of defense when somebody is unarmed? She noted over and over again, you know, the bagginess of Arbery's pants, that it was clear that he wasn't armed, that in the defendant's post-arrest statements, they did not make it clear that they thought necessarily that he was armed.

Of course, now, after having the benefit of hindsight, they have clarified their testimony on the stand. Of course they're saying, oh, they feared for their life. But, really, the proportionality element wasn't there. And then, Jim, they didn't even get the benefit of the self-defense defense if, in fact, they weren't committing a lawful and legitimate citizen's arrest, which is why that's such an important element.

SCIUTTO: I believe the judge has brought in -- the jury back into the courtroom. Actually, we're waiting. He's asked for them to come back in. Erica, back to you just as we wait. There a lot of pauses. HILL: Exactly. As we're waiting for them to be brought back in, I'm just looking back at my notes in terms of things that I wrote down as we're watching all of this. And to Caroline's point, all this talk about this has to be about the evidence, this has to be about the facts. We know that, ultimately, that is what the jury is supposed to look at, will be looking at.

Shan, as they're given those instructions that it is all about the facts, remind us how important are the closing arguments?

WU: The closing arguments are really important because of two things. First, they are the last chance for the lawyers to make the point to the jury, it's what you leave them with, and, secondly, it's because it's the first time that the lawyers really get to argue.

An opening statement is really supposed to be a preview of what you're going to show them. But in the closing, you're able to take the evidence that's been brought in, add your passion, add your narrative to it, and that's what's really important. That's why they call it a closing argument.

So, here, big advantage that she got a fresh jury. I was criticizing her yesterday for wanting to push through at the end of the day with two hours more of argument, but she got them fresh this morning. She's the last voice they'll hear and then they'll hear the law. So, that's a good set for her.

SCIUTTO: That's a good point. You want them paying attention as you go through your final argument.

I believe, if I heard the judge correctly, they're standing because the jury is being brought back in. Of course, you don't see the jury in this shot.


Let's listen in.

WALMSLEY: All right. Welcome back, ladies and gentlemen. You are considering the case of the state of Georgia versus Travis McMichael, Greg McMichael, and William R. Bryan. Now that the evidence and the arguments of counsel have been submitted to you, it becomes my duty to give you the final instructions of the court as to the law applicable in this case.

As I told you at the outset, it is my duty and responsibility to ascertain the law applicable to this case and to instruct you on that law. You are bound by these instructions. It is your responsibility to ascertain the facts of the case from all the evidence presented. Then you must apply the law I give you in the charge to the facts as you find them to be.

It is your duty to follow the law in the instructions I have given you and I'm about to give you. You should not single out one instruction alone but must consider all the instruction as a whole. You have a sworn duty to decide this case based upon the law given you by the court and upon the evidence submitted during the trial.

The defendants, Travis McMichael, Greg McMichael, and William R. Bryan, in this case, have been indicted each individually and as parties concerned in the commission of a crime by the grand jury of this county for the offenses of malice murder, felony murder, four counts, aggravated assault, two counts, false imprisonment, and criminal attempt to commit a felony. The indictment was turned into court on June 24th of 2020. You will have the indictment with you at the end of the case, and you should consult it for the specific allegations brought by the state.

The defendants have each entered a plea of not guilty to the indictment. The indictment and the pleas form the issues that you are to decide. Neither the indictment nor the pleas of not guilty should be considered as evidence.

The defendants are charged in the indictment with crimes are violations of certain laws of the state of Georgia. I want to emphasize to you that the indictment, including all of the counts therein, and the pleas of not guilty, are the legal procedures by which these criminal charges are brought against each defendant. The charges and the plea of not guilty are not evidence of guilt, and you should not consider them as evidence or implication of guilt of any crime whatsoever.

The defendants are presumed innocent until each is proven guilty. Each defendant enters upon the trial of the case with a presumption of innocence in his favor. And this presumption remains with the defendant until it is overcome by the state with evidence that is sufficient to convince you beyond a reasonable doubt that the defendant is guilty of the crime or crimes charged. No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt.

The burden of proof rests upon the state to prove every material allegation of the indictment and every essential element of the crimes charged beyond a reasonable doubt. However, the state is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty. A reasonable doubt means just what it says.

It is a doubt of fair-minded, impartial juror honestly seeking the truth. It is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt, but it is a doubt from which a reason can be given arising from a consideration of the evidence or lack of evidence, a conflict in the evidence, or any combination of these.

There is no burden of proof upon the defendants whatsoever, and the burden never shifts to the defendant to prove his innocence. When a defense is raised by the evidence, the burden is upon the state to negate or disprove it beyond a reasonable doubt.

Though you may consider all of the evidence as a whole, conviction of one defendant does not necessarily require conviction of another. You, the jury, must determine whether the state has proven the guilt of each defendant beyond a reasonable doubt as to each count. If, after giving considerations to all the facts and circumstances of this case, your minds are wavering, unsettled or unsatisfied, then that is a doubt of the law and you must acquit that defendant. But if that doubt does not exist in your minds about the guilt of the accused, then you will be authorized to convict that defendant. If the state fails to prove a defendant's guilt beyond a reasonable doubt, it would be your duty to acquit that defendant.


Facts and circumstances that merely place upon a defendant a grave suspicion of the crime or crimes charged or that merely raise a speculation or conjecture of a defendant's guilt are not sufficient to authorize a conviction of a defendant.

Now, your oath requires that you will decide this case based on the evidence. Evidence is the means by which a fact that is put in issue is established or disproved. Evidence includes all of the testimony of the witnesses or the equivalent, such as depositions, any exhibits admitted during the trial and stipulations of the attorneys.

As I have previously charged you, the stipulation is an agreement between the parties concerning some fact or facts which you, as the jury, are bound to accept as facts during your deliberations. Evidence does not include the indictment, the plea of not guilty, opening or closing remarks of the attorneys, or questions asked by the attorneys. Evidence may be either direct or circumstantial or both.

In considering the evidence, you may -- excuse me -- in considering the evidence, you may use reasoning and common sense to make deductions and reach conclusions. You should not be concerned about whether the evidence is direct or circumstantial. Direct evidence is the testimony of a person who asserts that he or she has actual knowledge of a fact. Circumstantial evidence is proof of a set of facts and circumstances that tend to prove or disprove another fact by inference.

There is no legal difference in the weight that you may give to either direct or circumstantial evidence. Whether dependent upon direct evidence or circumstantial evidence or both, the true test is whether there is sufficient evidence or whether the evidence is sufficiently convincing to satisfy you beyond a reasonable doubt. If not, you must acquit. If so, you may convict.

There's no rule that either circumstantial or direct evidence is stronger than the other if conflicting. The comparative weight of circumstantial evidence and direct evidence on any given issue is a question of fact for the jury to decide.

Now, testimony has been given in this case by certain witnesses who are termed experts. Expert witnesses are those who, because of their training and experience, possess knowledge in a particular field that is not common knowledge or known to the average citizen. The law permits expert witnesses to give their opinions based upon that training and experience. You are not required to accept the testimony of any witness, expert or otherwise. Testimony of an expert, like that of all witnesses, is to be given only such weight and credit as you think it is properly entitled to receive. Now, the jury must determine the credibility of witnesses. In deciding this, you may consider all of the facts and circumstances of the case, the witness' manner of testifying, the witness' means and opportunity of knowing the facts about which they testify, the nature of the facts about -- the nature of the facts about which the witness testifies, the probability or improbability of their testimony, the witness' interest or lack of interest in the outcome of the case, the witness' personal credibility insofar as it may have been shown in your presence and by the evidence.

Any evidence of bias for or against a party, any possible motive in testifying, if shown by the evidence, in that regard, you are authorized to consider any possible pending prosecutions, negotiated please, grants of immunity or leniency or similar matters and whether a witness has been impeached. The question of whether a witness has been impeached is whether you, the jury, believe the witness has been proved unworthy of belief. A witness may be impeached by disproving the facts to which the witness testified.

Your assessment of a trial witness' credibility may be affected by comparing or contrasting that testimony to statements or testimony of that same witness before the trial started. It is for you to decide whether there is a reasonable explanation for any inconsistency in a witness' pretrial statements and testimony when compared to the same witness' trial testimony. As with all issues of witness credibility, you, the jury, must apply your common sense and reason to decide what testimony you believe or do not believe. The testimony of a single witness, if believed, is sufficient to establish fact.


Generally, there is no legal requirement of corroboration of a witness provided you find the evidence to be sufficient.

Now, the defendant in a criminal case is under no duty to present any evidence tending to prove innocence and is not required to take the stand and testify in the case. If the defendant elects not to testify, no inference, hurtful, harmful, or adverse to the defendant shall be drawn by the jury, nor shall such fact be held against the defendant in any way.

A number of statements that the defendants have allegedly made were offered for your consideration. Before you may consider any of these as evidence for any purpose, you must determine whether the individual statements were voluntary. To be voluntary, a statement must be freely and willingly given and without coercion, duress, threats, use of violence, fear of injury or any suggestions or promises of leniency or reward. A statement induced by the slightest hope or benefit or the remotest fear of injury is not voluntary. To be voluntary, a statement must be the product of a free will and not under compulsion or any necessity imposed by others.

The burden of proof is upon the state to establish that the statement was voluntary that is, freely and willingly made. If you do not find that the statement was voluntarily, you may not consider it for any purpose. You should consider with great care and caution the evidence of any out-of-court statement allegedly made by a defendant offered by the state. The jury may believe any such statement in whole or in part, believing that which you find to be true and rejecting that which you find to be untrue. You alone have the duty to apply the general rules for testing the believability of witnesses and to decide what weight should be give on the all or any part of such evidence.

The defendant's out of-of-court statement that is not supported by any other evidence is not sufficient to justify a conviction, even if you believe the unsupported statement. However, proof by other evidence beyond a reasonable doubt that the crime alleged has been committed may constitute supporting evidence of a defendant's statement, if any, should so you find, the law does not fix the amount of supporting evidence necessary. You must determine whether or not other evidence sufficiently supports a defendant's statement so as to justify a conviction.

If you find that there was a statement made by a defendant that was supported by other evidence, the degree of proof necessary to convict is that you be satisfied of the guilt of a defendant beyond any reasonable doubt.

Any out-of-court statement made by one of the defendants on trial in this case after the alleged criminal act has ended may be considered only against the person who made the statement and only if you find that such statement was freely and voluntarily made. If you find that an out of court statement was made to the police freely and voluntarily by a defendant on trial in this case, then you are to consider the statement only as against the particular defendant who made it.

Now, members of the jury, this court is responsible for determining the admissibility of certain evidence with regard to statements in this case. Sometimes full audio and/or video recordings cannot be played for you for legal reasons. You are not to make any inferences for or against either party in the case about the fact that the law does not allow the playing of certain recordings by the parties in this case.

Now, evidence of prior difficulties or lack thereof between one or more of the defendants and Mr. Arbery has been admitted for the sole purpose of illustrating, if it does, the state of feeling between the defendants and Mr. Arbery and the reasonableness of any alleged fears by the defendants or Mr. Arbery. Whether this evidence illustrate illustrates such matters is a matter solely for you, the jury, to determine. But you are not to consider such evidence for any other purposes.

Certain evidence of fingerprint comparison has been admitted by the court for your possible consideration. Identification by fingerprint comparison is opinion evidence and is dependent upon the credibility or believability and accuracy of the expert witness called for that purpose as well as the following factors.

[11:00:02] One, the validity of the theory of identification by fingerprint comparison, two, the credibility --