Defense attorneys for the Georgia men charged in thewant a judge to allow them to introduce evidence showing Arbery had several run-ins with law enforcement in the years before his February 2020 fatal shooting. At a pre-trial motions hearing in Glynn County court Wednesday, the defense called a series of law enforcement officials who described Arbery as agitated and hostile during encounters over shoplifting and trespassing incidents.
A Cobb County prosecutor strongly objected to allowing the evidence at the October trial, calling it irrelevant because Travis McMichael and his father Gregory McMichael had no knowledge of the incidents when they armed themselves and pursued Arbery through their Brunswick neighborhood.
"The only purpose for placing the 'other acts' of Mr. Arbery before jury is to is to smear the character of Mr. Arbery and suggest that his murder was deserved," prosecutors wrote in a court filing.
The McMichaels maintain they believed Arbery was the burglary suspect who had been stealing items from the neighborhood in the months prior to the shooting, leaving the community "on edge." In court Wednesday, Travis McMichael's defense attorney Jason Sheffield said the McMichaels had a right to pursue Arbery under Georgia's citizen's arrest law, which allowed citizens to detain people who had committed felonies. Governor Brian Kemp repealed the Civil War-era law this week. The defense has argued that Travis McMichael shot Arbery in self-defense when Arbery attacked him.
Arbery's family, however, believes he was gunned down because of his race. A third defendant who joined in the chase and filmed the shooting with his cellphone, William "Roddie" Bryan, told investigators Travis McMichael used a racial slur as Arbery lay dying. All three men were indicted this month on.
In court, Sheffield played body camera video of Arbery's encounter with a Glynn County police officer who testified that Arbery became agitated when he asked him why his car was parked in an odd location. A sheriff's sergeant from another Georgia county testified that Arbery became hostile when confronted about trespassing on a property near his grandmother's home in 2018, and a school district chief testified Arbery fled officers after bringing a gun to a high school game. Sheffield also called an officer who responded to a Walmart where Arbery was accused of stealing a television in 2017, and a store employee testified she recognized Arbery as the person who shoplifted eight times in the months before his death.
Sheffield said Arbery had a "pattern of conduct and behavior" that included theft or burglary crimes and "when confronted about his actions that were under question, his response to that is to get angry and aggressive, physically and verbally."
Prosecutors say they do not contest that Arbery went inside a home under construction in the McMichaels' neighborhood four times, including on the day of the fatal pursuit, but say there is no evidence Arbery stole anything. In court, Cobb County senior assistant district attorney Linda Dunikoski argued the defendants falsely imprisoned Arbery and weren't legally allowed to make a citizen's arrest because they didn't witness Arbery committing a crime.
"What Mr. Arbery did was he fled because he was under no legal obligation whatsoever to talk to strangers who were trying to hit him with their pickup trucks and shoot him with their shotguns," Dunikoski said.
The defense also asked to introduce evidence that Arbery had not been taking his medication for his schizoaffective disorder, a mental condition they say can be linked to violence.
Sheffield argued the disorder was relevant to Arbery's actions on the day he was killed and called a nurse who diagnosed Arbery in 2018 to testify about the condition. Sheffield said Arbery shared during a mental health evaluation that he suffered from hallucinations that told him to rob, steal and hurt others.
"The question for the court is, is it possible the mental illness he suffered from... contributed in a significant way to his actions on that day, including engaging in hand-to-hand combat with Mr. McMichael," Sheffield said.
Prosecutors argued against allowing evidence of the diagnosis at trial, saying it had no relevance to Arbery's death.
"It's clearly an effort to go ahead and say, 'Mr. Arbery wasn't right, he had some mental health issues, and therefore it's his fault about what happened,'" Dunikoski said. "'He didn't respond appropriately or correctly to the defendants and therefore it's his fault they had to kill him,' and that's offensive."
Prosecutors may also seek to introduce evidence showing that Travis McMichael and Bryan used racist terms in text messages and that Travis and Gregory McMichael viewed racist Facebook posts, but not as a part of their principal case, Dunikoski said. They may petition the judge during the trial to allow it as rebuttal evidence, depending on what evidence the defense presents, Dunikoski said.
The judge did not immediately rule on the motions, and the hearing was expected to continue on Thursday.
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