(GLYNN COUNTY, Ga.) -- A Georgia judge is considering whether to allow Ahmaud Arbery's criminal history and a diagnosis of mental illness to be presented at the trial of the three white men accused of tracking down the 25-year-old Black man and fatally shooting him in February 2020.
Chatham County Superior Court Judge Timothy R. Walmsley, who was appointed to oversee the Glynn County case, began a two-day hearing Tuesday on a dozen motions by the defense and prosecution on what will and will not be allowed as evidence during the trial scheduled for October.
Attorneys for defendants Gregory McMichael, 65, and his 35-year-old son, Travis McMichael, argued that Arbery's criminal background shows a pattern of him responding in an "angry and aggressive" way when confronted by someone with authority.
Defense attorney Jason Sheffield called witnesses in Tuesday's all-day hearing who testified about different instances involving Arbery's encounters with police, including a 2013 arrest for bringing a gun into a high school gym during a basketball game.
But Cobb County prosecutor Linda Dunikowski countered that none of the instances were relevant in the death of Arbery because the McMichaels and a third defendant, William "Roddie" Bryan, 51, a neighbor of the McMichaels, had no knowledge of them when they allegedly chased down Arbery, who had been jogging in their Satilla Shores neighborhood in Brunswick, Georgia. Travis McMichael allegedly ended up shooting him three times with a shotgun.
The incidents the defense attorneys want to use included a Dec. 1, 2017, shoplifting case, when Arbery was arrested for trying to steal a 65-inch TV from a Walmart, and a Nov. 7, 2017, incident caught on body camera footage showing Arbery getting aggravated over being questioned by an officer about parking his car in a grassy area of a park. In that encounter, Arbery was allowed to walk away from the scene.
Arbery pleaded guilty in the shoplifting case and received five years probation, according to Atlanta ABC affiliate WSB.
The defense also asked the judge to be allowed to tell a jury of an incident when Arbery became angry when sheriff deputies issued him a warning for trespassing on private property.
Dunikowski countered that the defense attorneys are attempting to blame Arbery for his own death.
She noted that the defendants are claiming they acted in self-defense when Travis McMichael allegedly shot and killed Arbery on Feb. 23, 2020.
"You can't claim self-defense if you started it," Dunikowski said.
The three men also claimed they were exercising the state's Civil War-era citizen's arrest statute when they attempted to detain Arbery.
On Monday, Georgia Gov. Brian Kemp signed a law repealing the state's citizen's arrest statute, a move that was prompted by Arbery's killing.
Dunikowski alleged what the men committed was not a citizen's arrest, but an "illegal detention."
"It's false imprisonment," she said.
She said the fatal encounter started when Gregory McMichael, a former George police officer and investigator for the Glynn County District Attorney's Office, saw Arbery running through his neighborhood and suspected him of being a burglar.
Dunikowski said that while Arbery was captured on surveillance video walking into a home under construction in the neighborhood and leaving empty handed, Gregory McMichael had no way of knowing that when he first spotted Arbery.
"The last time I checked, this is the United States of America and you could go anywhere you wanted," she said. "He walked into a house that was not open, yes -- not his, but not theirs (the defendants) either."
Sheffield also asked Walmsley to allow him to admit medical records that Arbery was diagnosed in 2018 with schizoaffective disorder, a combination of schizophrenia and mood disorders.
Walmsley stopped Sheffield from proceeding with his argument to use the medical records, saying he needed more time to consider whether that would be legally appropriate.
Dunikowski argued that Arbery's mental state is also irrelevant and should not be allowed.
"They want to talk about Mr. Arbery's reaction to Greg McMichael and Travis McMichael," she said of the defense. "It's common sense, fight or flight. And what Mr. Ahmaud Arbery did was he fled because he was under no obligation whatsoever to stop and talk to strangers who are trying to hit him with their pickup truck and shoot him."
"They just basically said that Ahmaud Arbery's decision and his conduct is what this case is about," Dunikowski said. "That's bad character evidence."
In June 2020, a Glynn County grand jury voted to indict the McMichaels and Bryan on charges of felony murder, malice murder, aggravated assault, false imprisonment and criminal contempt to commit a felony in the death of Arbery. They each have pleaded not guilty and have been ordered to stand trial later this year.
On Tuesday, all three men were arraigned on federal hate crime charges. A federal grand jury indicted them last month on charges of interference of rights and attempted kidnapping, while the McMichaels were also charged with using, carrying and brandishing a firearm in relation to a crime of violence. They also pleaded not guilty to those charges.
The pretrial hearing in the state's case is expected to continue on Thursday.