UPDATE: Because it seems possibly helpful to the discussion, I’ve appended to the bottom of this post the video, and a transcript, of the entirety of the citizen’s arrest portion of Judge Walmsley’s instructions to the jury.
We’ve all heard about the verdicts now in the Ahmaud Arbery case trial. Rather than list all the convictions, it’s easier to note the few acquittals.
Only Travis McMichael was convicted of Count 1 malice murder.
Bryan was found not guilty of the Count 6 aggravated assault with a firearm charge, so naturally he was also not guilty of the Count 2 felony murder based on that agg assault charge.
Other than that, everybody was found guilty of everything.
Some closing thoughts:
I was asked on Twitter if I disagree with these guilty verdicts.
My answer is that I don’t have any particular personal feelings about the verdicts themselves.
These defendants aren’t my clients, my friends, or family. What happens to them as individuals is of no great consequence to me personally.
I do, however, care a great deal about the process—the legal process, due process of law.
And that process was horrifically mutilated in this trial.
We’ll never know on what ambiguous version of the critical citizen’s arrest statute these defendants were convicted on, because there was never any single unambiguous definition of that critical statute provided by Judge Timothy Walmsley, presiding over this circus of a trial.
And no defendant should be sentenced to life in prison based on an ambiguous statute that is the lynchpin to the entire defense.
And make no sense, citizen’s arrest was everything—if the arrest was lawful, everything that followed was lawful. If the arrest was unlawful, everything that followed was also arguably unlawful (possibly excepting the malice murder, but that hardly matters, really, as the felony murders are already enough for life in prison without the possibility of early release).
With everything hinging on this critical statute, a statute possible of different interpretations that were argued over in good faith by experienced attorneys both inside and outside the courtroom, it was a travesty of justice for Judge Walmsley to allow the jury to decide the fate of any defendant, including these particular defendants, based on their own untrained, inexperienced, whimsical sense of how that statute was to be applied.
Juries are not there to interpret the law. They are there to interpret facts as they believe those facts to be proven or disproven. In that fact-finding role, they reign supreme.
The job of interpretation of law is that of the judge—here Judge Walmsley. And that critical job he simply refused to do.
And that’s contemptible.
It was Judge Walmsley’s duty to decide a specific, unambiguous meaning of that statute—but he knew under the doctrine of lenity, ambiguity in a criminal statute must be decided in favor of the defendant, not in favor of the State. I guess he didn’t want to do that. So, instead, he presented the jury with the ambiguous version of the statute, and just let them decide what they wanted the law to be.
That’s not the proper role of the jury, and never should be.
So, I’ve no great personal interest in the verdicts in this particular trial or the consequences for these particular defendants.
But I do have a great professional interest in this monstrosity of a legal process—why? Because if such a broken process can be applied to these defendants it can be applied to ANYBODY. Me. You. Your children.
We have particularized roles for the prosecution, for the defense, for the Judge, and for the jury, a kind of separation of powers so to speak, for an extremely important reason. It’s not merely a random assignment of authority and responsibility.
We structure these roles in the way we do because we believe this structure to facilitate a legal process best suited to arriving at justice.
And when we achieve arrive at a verdict outside of that well-established process, regardless of whether the verdict is for guilt or acquittal, we’ve moved further from justice, not closer to it.
And that’s never good. The world has far more injustice already, we needn’t add to it unnecessarily.
And that’s probably my final word on the Ahmaud Arbery case trial, absent some future legal action such as appeals, I suppose.
TONIGHT: Attorney Andrew Branca on TimCast IRL, 8 pm ET
I do, however, want to mention that tonight, Wednesday, November 24, 2021, at 8 pm Eastern time, I will be a guest on the wildly popular YouTube show, TimCast IRL, hosted by none other than Tim Pool. Tonight, I expect we’ll be discussing the recently acquitted Kyle Rittenhouse, the just delivered convictions in the Ahmaud Arbery case trial, perhaps the upcoming Kim “Taser-Taser-Taser” Potter trial, perhaps the recent Waukesha massacre, and much, much more.
I hope a bunch of you join us! You can find the show at: TimCast IRL.
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.
UPDATE: Judge Timothy Walmsley: Citizens Arrest Instruction (emphasis added)
The defense of justification can be claimed a when the person’s conduct is justified, as the use of force in defense of self or when the person’s conduct is reasonable and is performed in the course of making a lawful arrest.
The private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony, and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.
The terms in his presence and within his immediate knowledge are synonymous in a crime committed in one’s presence only if, by the exercise of any of his senses, he has knowledge of its Commission, or by the accused admitting that such a crime is being or has been committed.
A private person may not act on the unsupported statement of others alone.
A private citizens warrantless arrest must occur immediately after the perpetration of the offence or in the case of felonies during escape.
If the observer fails to make the arrest immediately after the commission of the offense or during escape, in the case of felonies, his power to do so is extinguished.
A private person may arrest an offender upon reasonable and probable grounds of suspicion that is on probable cause, which is defined as facts and circumstances that are sufficient toward a prudent person, or one of reasonable caution in believing in the circumstances shown that the suspect has committed an offense.
The facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial. The test merely requires a probability less than a certainty, but more than a mere suspicion or possibility.
In determining whether probable cause exists, the totality of the circumstances must be considered.
Whether probable cause existed is for the determination of the jury.
Now, an arrest is defined as the taking seizing or detaining of the person of another, either by touching or putting hands on him or by any act indicating an intention to take such person into custody, and which subjects such person to the actual control and we’ll have the person making the arrest. An arrest can occur, even when a subject is not told that he is under arrest.
A person is authorized to use in making a lawful arrest only that degree of force that is reasonably necessary to accomplish the arrest. The mere fact that a lawful arrest is being made, does not give the person the right to use excessive force or an unlawful degree of force upon the upon the person being arrested.