Three men chased Ahmaud Abery in Brunswick, Georgia in 2020. This resulted in a fatal confrontation. They were all convicted by a Georgia state jury of murder in November. They were all sentenced to life imprisonment. Now, the three same white men face federal trial for similar conduct. FurtherLife sentences are possible if the prosecutors convince the jury that Arbery was targeted “because he is black.”
This second prosecution, according to the Supreme Court does not constitute double jeopardy. Federal and state offenses, which are defined by different “sovereigns,” do not count as “the same offense”. You might be wondering why the federal government bothers to prosecute Travis McMichael and Gregory McMichael again, when they are all already on life sentences.
It seems that they want to label them racists and murderers. Shan Wu, a former federal prosecutor, stated that this is exactly the type of case that you need to make it clear that the Justice Department will not tolerate racist hate that leads to violence. The Washington Post. Federal prosecutors will use this trial to make moral statements about the defendants, something that isn’t normally seen as legitimate by criminal courts.
Yesterday, The New York TimesReports state that the jury received “voluminous digital evidence proving racism” to establish the defendants’ guilt. That evidence included a meme that Gregory McMichael—who first deemed Arbery suspicious and accompanied his son, Travis McMichael, in the pickup truck they used to chase him—shared on social media in 2016. The post stated that white Irish slaves had been treated more harshly than other races in America. It was followed by vulgar language that compared the Irish to other ethnic or racial groups demanding ‘free things’.
Travis McMichael was also mentioned in the prosecution’s response to “a video showing a Black person making a joke.” McMichael the younger, who shot the gun that killed Arbery “reacted with a racist epithet” and stated he would shoot the person who had made the joke.
The Post According to reports, the evidence included “a multitude of conversations” where Travis McMichael denigrated Black people and called them the “n-word” many times. McMichael was seen to associate Black people with crime and blame them for his failure to obtain a commercial driver’s license. He also accused them of “running the show”. McMichael claimed that McMichael loved his job as “zero n rs” worked with him.
Bryan was the one who drove his pickup truck and recorded the last minutes of the encounter with his cell phone. NPR reports that Bobbi Bernstein, a federal prosecutor, stated Monday that Bryan used the N-word in one instance after being informed that her daughter was with a Black man. She claimed Bryan had said that Bryan’s daughter “has her n —–r right now.”
Of course, it isn’t a crime not to be a racist. All this serves to determine the motives of Arbery’s attackers, and is critical to their conviction for violating 18 USC 245. (b)(2)(B). That statute applies to offenders who use force to prevent someone, “because of his race, color, religion or national origin,” from “participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof”—in this case, the street on which Arbery was jogging.
Given the opinions of the defendants, it is reasonable to conclude that Arbery would have been less likely to accuse him of burglary had his skin been of a different colour. However, this isn’t the same thing as showing beyond reasonable doubt they chased and attacked him “because” he was of a different race.
Avlana Eisberg, Florida State University’s law professor said the following: “The strongest pieces of evidence will always remain those that are directly related to the incident at issue.” Post. Eisenberg noted that proof of motive may be hard, but also cautioned against acquittals for hate crimes cases. This would create a gap between official findings as well as the “court of public opinions.”
This is a very puzzling concern. The difference in what is considered evidence in “courts of public opinion” and in an actual court makes a huge difference. After reviewing all evidence presented, jurors may decide that they should not convict Arbery and his family if the prosecution fails to show a racist motivation for Arbery’s killing.
Gregory McMichael or Travis could be sentenced, although they are not eligible for parole. Bryan could theoretically benefit from a federal conviction, as his state sentence permits him to apply for parole after thirty years. However, Bryan will likely be well into his 80s by then, assuming he’s still living.
This decision has had an impact on penalties in other federal hate crimes cases. For instance, Tiffany Harris was charged by the Justice Department in 2020 with violating 18 USC 249, which is a violation of several New York state crimes.
This law covers an offender who causes bodily harm to another person “because” of their “actual or perceived race or religion or national origin. The crime is a felony punishable by up to 10 years in prison—more than twice the maximum penalty for the most serious state charge that Harris faced, which was itself four times the maximum penalty that would have been authorized without a state “hate crime” enhancement.
Harris’ case had very clear evidence. She slapped three identifiably Jewish women—two across the face and one on the back of the head—as they were walking in the Crown Heights section of Brooklyn. According to reports, she said the following: “Fuck you Jews!”
According to the prosecution, Travis McMichael, et al. has the most crucial evidence. It is the ugly attitudes that they held months and years prior to their crimes. Another seemingly redundant federal case for “hate crime,” was based upon evidence that included a racist manifesto, and anti-Semitic online posts. The government effectively tries to penalize people who express their views by threatening them with harsher punishments, like a longer sentence or even execution. In a country where that sort of thing is not supposed to happen, punishing people for their criminal behavior—preferably just once!—should be enough.