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.
9 thoughts on “Ahmaud Arbery Case Trial: Final Thoughts”
I know that the defense of citizens arrest should have been the easiest defense, but you really didn’t need a defense when the elements of the counts were not proven by facts in evidence. So the jury found that simply driving down the street and rolling down your window and asking someone to stop and talk is an attempted unlawful imprisonment. I don’t recall any evidence of any use, attempted use, or threat of use of force to detain Arbery. He was free to go and he did. Unlawful imprisonment, again there was no evidence of a use or threat of force to detain Arbery and no evidence he was detained by force ever. He was free to run any direction other than over the McMichaels, but he chose to attack the McMichaels. Assault, no evidence of a threat of force, an attempted use of force, or a use of force other than defensive force, not to defend from an imminent use of unlawful force, but to defend from an actual use of unlawful force. And there certainly wasn’t any evidence of malice aforethought when the killing was both necessary self defense and the use of defensive force provoked. This is just one of those 10% cases you talk about and it will make you a good example when you are trying to point out the perils of getting yourself into a use of force situation when, even though you had a right to get into it, you would be best served by avoiding it.
“This is just one of those 10% cases you talk about and it will make you a good example when you are trying to point out the perils of getting yourself into a use of force situation when, even though you had a right to get into it, you would be best served by avoiding it.”
Looks like we have another one coming up in Florida just today. Without knowing anything else about the situation, without going into provocation or original aggressor, it appears without any media bias from reports that the pregnant lady made it to the safety of her home, and instead of locking the door and calling 911 while holding a defensive position, she apparently chose to come back out while armed.
Discretionary gunfight ensued.
Why was citizen’s arrest so important in this trial? The defense should have mostly ignored it, since no citizen’s arrest was made, and none was attempted at the time of the shooting.
The McMichaels tried to make a citizen’s arrest, but the only video shows arbery doubling back by his own choice, not diverted or driven by Bryan, who had to turn around to follow, and running to the McMichaels, who were at their parked truck, going nowhere, having apparently given up the hunt, while Gregory was calling the police.
Citizens arrest law would have been important if there was any evidence of the right to make a citizens arrest and there was sufficient evidence to prove beyond a reasonable doubt a verbal notice of intent to arrest or a threat to use force, an attempt to use force, or a use of force in an attempt to detain or confine before Arbery threatened, attempted, or used force. Since there wasn’t any evidence of an attempt to arrest, detain, or confine (citizens arrest) it wasn’t all that important.
I didn’t see any evidence or an unlawful arrest, detention, or confinement. Arrest isn’t even alleged in the indictment and you can’t unlawfully detain or confine a person on an open street with two pickup trucks. There was never an attempt to place, and Arbery was never placed, in a position where he didn’t have an avenue of escape so there was, as a matter of legal definition of the term detain and confine, any attempt to detain or confine Arbery and no actual detention or confinement of Arbery.. To the best of my knowledge there was not sufficient evidence to find an offense under counts two through nine. And since Arbery was the initial unlawfull physical aggressor in the mortal combat at the front of the truck, there was no malice aforethought in Travis expressed by the circumstances or implied by law.
Not having watched or kept of with the Arbery trial, all I’ve seen regarding jury instruction on the Citizens Arrest definition was from KTAR News:
– Judge Timothy Walmsley noted that a person making a lawful citizen’s arrest can’t use “excessive force or an unlawful degree of force.” And he instructed the jury that a person who’s the target of an unjustified citizen’s arrest “has the right to resist the arrest with such force as is reasonably necessary.” (IMO key word is “unjustified”)
– Self-defense cannot be used as a defense if the person is the aggressor in a confrontation and excessive force cannot be used in self-defense, the judge said. (IMO key word is “aggressor.”)
– He also told the jury that with defenses of citizen’s arrest and self-defense, the prosecution must disprove those defenses beyond a reasonable doubt.
So I’m of the impression the jury deliberations would focus more on provocation than the five elements of self defense. And after 11 hours of deliberation, the Jury agreed with the Prosecutor that Arbery posed no imminent threat to the 3 men and they had no reason to believe Arbery had committed a crime, thus giving the 3 men no legal right to chase Arbery. So IMO the jury decision might delve into a “reasonable person” test rested on their interpretation of unjustified aggression while making a justified citizens arrest… or not.
IMHO the jury was not convinced that the defendants articulated the probable cause needed to make a felony arrest. That was either lack of the judge defining the law or lack of the defense proving that evidence. I think if Arbury had been running down the same street at the same time with a flat screen tv known to be from that residence this case would have had a different outcome. From my understanding of this citizen’s arrest law, an arrest for a misdemeanor crime would not allow you to detain the perpetrator by force. Misdemeanor citizen arrest happens every single day in this country every time a citizen goes before a magistrate with a police report and swears out a warrant for another citizens arrest. This form of citizen arrest is so common that it would be considered normal or proper for a misdemeanor offence. If you could not articulate the probable cause needed to make that felony arrest, you would not have the authority to chase or even attempt to detain the perpetrator as the jury determined in this case. If you did not have that authority you would lose the element of innocence and therefore lose self defense as the defendants did in this case.
I thought it might be beneficial to float this out. Could this be a jury nullification? There was a old law of citizen’s arrest on the books that the jury considered to be obsolete and not in step with the times of modern policing. So the jury said, in effect, we don’t agree with the law of citizens arrest. This looked to the jury more like three men taking the law into their own hand and so they are responsible for the consequences.
The jury didn’t know what the law was because the judge didn’t explain it to them, so they didn’t need to nullify the law. The court failed to explain the law of citizens arrest, both when a citizens arrest was legal and what acts had to happen before conduct to be considered a citizens arrest, or an attempt to make a citizens arrest. The court didn’t explain what “detain” or “confine” meant. Confine has the ordinary meaning, but “detain” has a legal meaning. You detain people all the time in the ordinary meaning of the word, you don’t “detain” someone in the context of lawful arrest or false imprisonment unless they do not have an avenue of escape and you are preventing them from going by a use or threatened imminent use of force. Arbery was never detained or confined and there was no use or imminent use of force against him for that purpose. This means not guilty on counts two through nine without considering self defense law and not guilty on count one by reason of necessary self defense.
That is all based on the evidence I am aware of. Travis might have said something that gave the state probable cause to believe he intended to make a false arrest, but I never heard that evidence presented. And probable cause, although a very low standard of proof is sufficient for proof beyond a reasonable doubt.
I really appreciate your coverage of the Rittenhouse case, and as much as I wanted to see your coverage of this, if given the choice between Rittenhouse and this one, I would have chosen Rittenhouse hands down.
Having said that, I cannot help but have this feeling that perhaps this was the more important case to cover — both, to see whether the Prosecution had really met their burden of proof, and also to better understand the need of judges to make sure that the trial is indeed fair — but, regardless, it’s difficult to see a case unfold before our eyes, and see unjust things allowed by, or even pushed by, the judge.
I also appreciate that these cases are made public. It allows us to see how the “sausage” is being made, it shows us what we’re “up against” if we get charged with a crime, and it helps us understand parts of the system that may be in desperate need of reform.