ATLANTA — State prosecutors are continuing to try to prevent attorneys defending the three men charged with Ahmaud Arbery’s killing from introducing evidence of Arbery’s past scrapes with the law and his mental illness.
In a court filing, lead prosecutor Linda Dunikoski said the state anticipates calling on witnesses who knew Arbery and who will testify they had seen him running or jogging in his neighborhood or in the surrounding neighborhoods in Brunswick.
The witnesses are not being called to testify about Arbery’s “general good character,” Dunikoski said. “Rather, these witnesses are being offered as fact witnesses about Ahmaud Arbery being an avid runner.”
Such testimony should not, she said, “open the door” to allow the defense to present evidence of Arbery’s past.
The motion was filed Monday, the first day of jury selection, which continued Wednesday morning. So far, eight prospective jurors have been qualified to sit in the final pool. Up to 68 jurors are going to be needed before the prosecution and defense exercise their strikes to arrive at 12 jurors and four alternatives for the trial.
Travis McMichael, who fired the fatal shotgun blasts; his father Greg McMichael; and a neighbor, William “Roddie” Bryan, who took the cellphone video of Arbery’s killing, are standing trial, charged with murder, false imprisonment and other crimes. They are strongly contesting the charges.
After seeing Arbery, a 25-year-old, unarmed Black man, run past his house on the afternoon of Feb. 23, 2020, Greg McMichael called on his son to run Arbery down. They armed up, got in Travis McMichael’s pickup truck and began chasing Arbery. They were soon joined by Bryan, a neighbor who got in his truck.
The defense contends the defendants, all of whom are white, were making a lawful citizen’s arrest and wanted to detain Arbery until police arrived. Prosecutors say Arbery frequently went on jogs and was doing so the day he died. Police found no stolen items on Arbery after he was killed.
Marietta criminal defense lawyer Ashleigh Merchant, who is following the case, said she understands why the state is doing everything it can to prevent the defense from introducing evidence of Arbery’s past.
“Anytime the defense can argue a victim is less worthy as a person it’s always going to be harmful to the state,” Merchant said. “If it can be argued his life had less value it makes it easier for the jury — or even one juror, for that matter — to overlook what happened to him.”
In prior rulings, Superior Court Judge Timothy Walmsley ruled out evidence of Arbery’s past convictions and confrontations with police. He also denied defense requests to allow jurors to know Arbery had been diagnosed with schizoaffective disorder and had told medical staff he sometimes had delusions.
Walmsley said such evidence was unfairly prejudicial and he noted the three defendants charged with Arbery’s killing knew nothing about his past. Walmsley also said, “The character of the victim is neither relevant nor admissible in a murder trial.”
Defense attorneys have said if the state introduces testimony that Arbery was jogging the day he was killed, that will allow them to introduce evidence of Arbery’s past. The defense contends Arbery was not jogging the day he died but was going through the Satilla Shores neighborhood to break into houses there.
But Dunikoski, citing a 2019 state Court of Appeals precedent, said the prosecution must purposefully place good character evidence before a jury to allow the defense to cross-examine a witness about a victim’s past conduct.
That is not the case here, Dunikoski said. She added that even if the state “inadvertently” elicits character evidence from a witness it still does not allow the defense to introduce evidence of Arbery’s past.
As expected, the court is having a tough time finding potential jurors who aren’t already familiar with the facts of the case. After viewing constant news coverage and the widely shared cellphone video of Arbery’s death, many prospective jurors have said their minds are already made up.
When Walmsley asked Wednesday whether 19 prospective jurors had already formed or expressed opinions about the guilt or innocence of the men on trial, nearly a dozen raised their hands.
At least three people have said they accessed court records posted to the Glynn County Superior Court website along with instructions telling prospective jurors where and when to report. Some of those filings included information that Walmsley has ruled inadmissible, including records showing Arbery’s previous brushes with the law and his mental health diagnosis.
Defense attorneys brought up the issue late Monday afternoon and the links have since been removed from that section of the website.
“When you were called for jury duty, you were directed to a website,” Dunikoski told Wednesday’s jury panel. “Also listed on that website were some links to some of the filings in this case. It’s OK if you looked at it, because it was there, but we all need to know if you looked at it.”
One person raised a hand, the third to do so during the jury selection process.
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