Is the Arbery Investigation Being Botched?

By John Dorschner

Based on what I’m reading, I wonder if Georgia investigators and prosecutors are rushing the Ahmaud Arbery, the Georgia jogger, the same way that Janet Reno botched a similar investigation in 1980.

That 1980 case involved six white Miami police officers charged with beating up a black motorcyclist, Arthur McDuffie, or covering up the way he died. The bungled prosecution led to acquittals on all charges. The ensuing riots killed 18 and did $100 million in property damage.

I’m hoping I’m wrong, but … Both cases started off with the cops/prosecutors doing nothing. Then came a public uproar, and in both cases the state rushed to make up for lost time and respond quickly to outraged demonstrators and the victim’s family.

I spent seven years examining the McDuffie trial and put the research into a book, Verdict on Trial. Reno, Miami’s state attorney at the time, rushed to appease angry media and irate protestors, and she made some horrendous decisions. To name just a couple: She gave immunity to a cop that the lead detective thought started the beating, and she charged another cop who didn’t even arrive at the scene until the beating was over because his patrol car got a flat tire. What was supposed to be an open-and-shut case turned into a disaster.

Right now, the horrific murder of Ahmaud Arbery, killed by a shotgun-wielding vigilante, seems to be an open-and-shut case as well. But is it?

After being brushed aside for months, the case finally got traction with the emergence of the video. The father and son were quickly charged, as well they should have been. But then the state went farther — charging the video guy, William “Roddie” Bryan, with felony murder. The maximum penalty for that crime in Georgia is death.

Bryan was following the jogger. Didn’t touch him. Didn’t shoot at him. He simply used his phone to record the deadly confrontation.

The Georgia detectives’ theory is that Bryan was keeping Arbery from fleeing — Bryan is also charged with “criminal intent to commit false imprisonment,” a felony. If a death occurs while committing a felony, the defendant can be charged with felony murder, even though he didn’t pull the trigger.

Arbery’s family applauded Bryan’s arrest. So did many who had been demonstrating in a demand for “justice.”

BUT … a jury is ultimately going to decide this case. The legal concept of felony murder may be sound, but how’s that going to play to a jury? A death sentence (or life imprisonment) for making a video? That will be the defense, and it could easily resonate among jurors.

In the 1980 McDuffie case, angry demonstrators complained that manslaughter charges were not enough, and Reno responded by charging one cop with second-degree murder, which in Florida means “evincing a depraved mind regardless of human life,” with a maximum sentence of life. After the trial, one of the jurors complained that the second-degree charge was an “effrontery” to the jurors’ intelligence.

In McDuffie, the charges against the cop with the flat tire were thrown out by the judge half-way through the trial. But the lesson of his case was not lost on the jurors, who believed that if the state had bungled in charging one cop, they could have surely bungled with others.

Certainly, when the Arbery case comes to trial, lawyers for Travis McMichael and his father Greg McMichael will argue that the state was so bending to mob pressure that it even charged the video guy with murder. Mob pressure was a theme for the defense in the McDuffie case, as it is in many cases involving the deaths of unarmed black men.

Of course, the McMichaels will plead self-defense. They just wanted to stop Arbery and wait for the police. They’ll say Arbery grabbed the shot gun, and McMichael the younger fought back to protect himself. Self-defense was the theme in the McDuffie case, too: Officer Alex Marrero said he felt the motorcyclist grabbing his gun, and he hit him as hard as he could with his nightstick. The autopsy report showed McDuffie had NOT been fighting — no defense wounds on his hands — and must have been on the ground when his skull was cracked with such force, but the coroner was the last witness the state called, and the jurors shrugged off his findings.

There’s a lot of similarities here, too, between Arbery and the wretched case of Trayvon Martin, who was accosted by vigilante George Zimmerman after Trayvon bought a snack at a convenience store. Zimmerman’s claim was self-defense. A jury believed him. As one experienced lawyer told me: “The only person who could have disputed Zimmerman was dead.”

Let me be clear here: Trayvon Martin shouldn’t have died for a trip to the convenience store. Arthur McDuffie shouldn’t have died for speeding on a motorcycle. Ahmaud Arbery shouldn’t have died for jogging down a street.

But we are a nation of law. The defendants’ fate will be decided in a courtroom based on the rule of law. The irony is that vigilantes — Zimmerman and the McMichaels — will get the rule of law they denied Trayvon Martin and Ahmaud Arbery.

Progressives can call for “justice” in the awful, oft-repeated incidents of the deaths of unarmed black men. Trumpsters can chant “lock her up” without bothering with an indictment of Hillary Clinton, much less a trial. But in America, cases are decided in courtrooms, not by crowd chants.

In Georgia, it’s apparently legal to carry a shotgun on the street. Was it OK for the McMichaels to be waiting for Arbery? Blocking his progress? Will the video guy — the only direct eyewitness, I believe — say McMichael acted in self-defense? What basis did the Georgia Bureau of Investigation have to charge the video guy? These are questions that may only be answered in a courtroom, and the ultimate deciders will be jurors.

The Arbery case has a long way to go. Let us hope that Georgia’s investigators and prosecutors are making sensible decisions.

Verdict on Trial: The Inside Story of The Cop Case That Ignited Miami’s Deadliest Riot is available on Amazon.

A Miami journalist for a half-century dedicated to peace, equality and environmental protection. Author of Verdict on Trial, available on Amazon.