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Discussions of race are notably absent in trial of Arbery’s accused killers

Prosecutor Linda Dunikoski spoke during the trial of Ahmaud Arbery's alleged killers at Glynn County Superior Court on Nov. 19, 2021 in Brunswick, Georgia.Pool/Getty

BRUNSWICK, Ga. — When Ahmaud Arbery, a 25-year-old Black man, was chased through a Georgia neighborhood by three white men and shot at close range, his killing was widely viewed as an act of racial violence.

One of the men uttered a racist slur moments after shooting Arbery, one of his co-defendants told authorities. One of the trucks the men were in had a vanity plate with a Confederate flag symbol on it.

And yet over 10 days of testimony in a South Georgia courtroom, jurors heard no discussion of race or allegations of bigotry. Prosecutors largely shied away from the issue, despite chances to ask about it as they presented their case.

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The absence has been notable, given that prosecutors signaled early on that they might make race an important aspect of their case.

On Thursday, Linda Dunikoski, the lead prosecutor, asked permission to tell the jury about the claim that Travis McMichael had used a racist slur — an allegation that McMichael’s lawyers have contested. Dunikoski faced significant legal hurdles in getting such evidence introduced. But before the judge could rule on the matter, the defense rested its case, and she declined her right to present rebuttal witnesses after hours of cross-examining McMichael on the stand.

Still, the absence of any overt discussion about race in court surprised legal experts and sparked disagreements over the wisdom of a prosecution strategy that might have been influenced by the fact that 11 of the 12 jurors are white.

“I’m at a loss,” Esther Panitch, a legal analyst and longtime Atlanta-based criminal defense lawyer, said Thursday. “While the state doesn’t have the obligation to prove motivation, jurors certainly would want to know what would motivate defendants to commit a crime like this.”

The state murder trial, which is unfolding in the small coastal city of Brunswick, close to the site of the shooting, is not the last word on whether the defendants — McMichael; his father, Gregory McMichael; and their neighbor William Bryan — were motivated by racial animus: A federal hate crimes trial looms for all three men in February.

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But in Brunswick in recent days, the gulf between the limited story presented in court and the broader story being told beyond earshot of the jurors seemed to yawn wider than ever.

Kevin Gough, the lawyer for Bryan, has repeatedly introduced race into the public narrative by arguing that the presence of prominent civil rights leaders in the courtroom, including the Rev. Al Sharpton, the Rev. Jesse Jackson and Martin Luther King III, could influence the jury. “We don’t want any more Black pastors coming in here,” he said at one juncture. Gough, following the rules of the court, has always made those comments while the jury was out of the room.

He was joined this week by Jason Sheffield, a lawyer for Travis McMichael, who said the jurors needed to be shielded from the “national conversation” that the case had generated.

Gough’s comments were widely criticized and prompted Sharpton’s National Action Network to invite scores of Black pastors to Brunswick on Thursday to show support for the Arbery family.

In theory, none of this is known to jurors, who, at the close of each day in court, have been instructed by Judge Timothy R. Walmsley not to seek out outside information about the case.

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Instead, jurors heard repeated, detailed accounts of the way in which the three men chased Arbery through their neighborhood and were asked to consider whether they had legal grounds to do so. The defense told jurors that the men had cause to believe Arbery was a burglar amid a series of break-ins in the neighborhood. Dunikoski argued that they pursued him based on what she described as flimsy “assumptions and driveway decisions.”

They heard that Gregory McMichael had told police officers that Arbery had been “trapped like a rat” before he was shot. And jurors were shown the graphic video filmed by Bryan that shows Travis McMichael shooting Arbery three times with a shotgun.

A spokesman for the Cobb County district attorney declined to comment on the prosecution’s strategy. But Paul Butler, a former federal prosecutor and professor at Georgetown University Law Center, said the lopsided number of white jurors might have played a role in the prosecution’s decision to not be more aggressive in framing the case in racial terms. Before the jury was empaneled, prosecutors tried unsuccessfully to convince the judge to block the defense’s move to bar a number of Black potential jurors.

“I’m sure the fact that it’s a virtually all-white jury matters,” Butler said. “There’s a risk when race talk is introduced in a trial, so the prosecutors I think obviously saw a risk of introducing evidence about race.”

In a hearing, prosecutors read a text message from November 2019 in which Travis McMichael used a racist slur about Black people as he described the idea of shooting a “crackhead” with “gold teeth.”

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In the weeks before the trial, however, prosecutors indicated that they had decided not to introduce “evidence of racial animus in the form of communications by the defendants with third parties” in their presentation of evidence, calling it a “strategic decision.”

Even without any overt discussion of race in open court, said S. Lee Merritt, a lawyer representing the Arbery family in a civil case, the defense seemed to be “leaning in on the benefits of racial bias that they hope exists on the jury” by arguing that it was incumbent upon the defendants to confront “this outside danger, this mysterious Black man.”

Butler, the Georgetown law professor, believes that the prosecution should have brought up the issue of racial motivation before it rested its case. “If there is a verdict of not guilty, I think the prosecution’s failure to use the evidence of racism by the defendants will be blamed,” he said.