Killing of Ahmaud Arbery - Trial of the McMichaels and Bryan Set for October 18, 2021

[pipistrelle]

Thanks for this. I couldn’t remember what they looked like at the time but was thinking they cleaned up quite a bit for trial.

[zekeb]

I wonder if their families are gathering for Thanksgiving.

[bob]

A small nit to pick… As I understand it, while Georgia has second degree murder, it doesn’t really have first degree murder. Instead, it has malice murder and felony murder, and those usually fall into the definitions other states have for first degree murder.

There are two ways for the state to prove malice: (1) express, meaning that the killing was intentional; or (2) implied, where “all the circumstances of the killing show an abandoned and malignant heart.” (The second one the common law definition of malice). And to prove felony murder they have to prove all of the elements of the underlying felony.

And only Travis was found guilty of malice murder, meaning the jury did not unanimously agree (beyond a reasonable doubt) that the other two harbored either an intent to kill or an abandoned and malignant heart (sometimes restated as a reckless disregard for human life). Which is a touch surprising because some of their actions sure get close to that.

It is actually very useful that Georgia breaks down the various theories of liability. Some states would just charge one count of murder (one count per defendant per victim), and let the appellate court figure out which theory the jury may have relied upon.

[W. Kevin Vicklund]

Fuck Kemp this wasn't vigilantism this was a lynching. What are the sentencing guidelines for all the charges? What kind of time are we looking at here?

Malice murder and felony murder carry mandatory minimum of life with no chance of parole before 25 years*. So 3-5 life sentences depending on which white supremacist you're looking at. The rest of the charges don't really matter after that.

*Death sentence is possible, but I doubt it will be handed down, though the fact they did it even after being told to stand down by the police has me a little unsure of that.

[Maybenaut]

A small nit to pick… As I understand it, while Georgia has second degree murder, it doesn’t really have first degree murder. Instead, it has malice murder and felony murder, and those usually fall into the definitions other states have for first degree murder.

There are two ways for the state to prove malice: (1) express, meaning that the killing was intentional; or (2) implied, where “all the circumstances of the killing show an abandoned and malignant heart.” (The second one the common law definition of malice). And to prove felony murder they have to prove all of the elements of the underlying felony.

And only Travis was found guilty of malice murder, meaning the jury did not unanimously agree (beyond a reasonable doubt) that the other two harbored either an intent to kill or an abandoned and malignant heart (sometimes restated as a reckless disregard for human life). Which is a touch surprising because some of their actions sure get close to that.

It is actually very useful that Georgia breaks down the various theories of liability. Some states would just charge one count of murder (one count per defendant per victim), and let the appellate court figure out which theory the jury may have relied upon.

That wouldn’t fly where I practice. If there is more than one way to commit an offense, they have to say in the charging document which theory they’re proceeding under so the accused knows what he must defend against.

[RVInit]

Thanks for this. I couldn’t remember what they looked like at the time but was thinking they cleaned up quite a bit for trial.

The thug son cleaned himself up seriously for the trial. I think he also lost quite a bit of weight. Prison food probably has a bit to do with that. But yeah, he looked quite a bit different for the trial. The other two not as much.

[RVInit]

A small nit to pick… As I understand it, while Georgia has second degree murder, it doesn’t really have first degree murder. Instead, it has malice murder and felony murder, and those usually fall into the definitions other states have for first degree murder.

There are two ways for the state to prove malice: (1) express, meaning that the killing was intentional; or (2) implied, where “all the circumstances of the killing show an abandoned and malignant heart.” (The second one the common law definition of malice). And to prove felony murder they have to prove all of the elements of the underlying felony.

And only Travis was found guilty of malice murder, meaning the jury did not unanimously agree (beyond a reasonable doubt) that the other two harbored either an intent to kill or an abandoned and malignant heart (sometimes restated as a reckless disregard for human life). Which is a touch surprising because some of their actions sure get close to that.

It is actually very useful that Georgia breaks down the various theories of liability. Some states would just charge one count of murder (one count per defendant per victim), and let the appellate court figure out which theory the jury may have relied upon.

Thanks Maybenaut and bob for your explanations. It does make sense that malice murder is basically the same as what I typically have heard of as first degree murder. In Florida it would be called first degree murder. I was a little surprised the jury didn't find at least the father guilty of malice murder as well. I think part of what shows his depraved attitude toward the life of Mr Arbery was actually for the most part left out of the state trial. Prosecutors made a conscious decision to stay away from mention of racial animus, which is what the federal trial will be all about. I think it was a good decision on their part, they kept it more simple and the facts even without the racist motivation were enough for the jury to see what happened here, but I do think malice murder charges against the elder McMichael probably needed to be backed up by the evidence of his clear racist motivation. I'm OK with his verdicts though. He may get the possibility of parole in his sentencing, but he will likely die of old age in prison long before his first parole hearing ever comes around.

Has anyone heard when the sentencing will take place?

[pipistrelle]

Robert Hirschorn, the great jury consultant and one of the best CLE presenters evah (I've seen him several times),was on CNN last night. He's also a lawyer. His educated guess is that Roddie and Papa may walk as he sees some "holes" in the case against them. He thinks Travis might get convicted of *something* but has doubts on the murder charge.

I post this so none of you get your hopes up.

I’m happy this guy’s analysis didn’t age well.

[scirreeve]

A small nit to pick… As I understand it, while Georgia has second degree murder, it doesn’t really have first degree murder. Instead, it has malice murder and felony murder, and those usually fall into the definitions other states have for first degree murder.

There are two ways for the state to prove malice: (1) express, meaning that the killing was intentional; or (2) implied, where “all the circumstances of the killing show an abandoned and malignant heart.” (The second one the common law definition of malice). And to prove felony murder they have to prove all of the elements of the underlying felony.

And only Travis was found guilty of malice murder, meaning the jury did not unanimously agree (beyond a reasonable doubt) that the other two harbored either an intent to kill or an abandoned and malignant heart (sometimes restated as a reckless disregard for human life). Which is a touch surprising because some of their actions sure get close to that.

It is actually very useful that Georgia breaks down the various theories of liability. Some states would just charge one count of murder (one count per defendant per victim), and let the appellate court figure out which theory the jury may have relied upon.

Thanks Maybenaut and bob for your explanations. It does make sense that malice murder is basically the same as what I typically have heard of as first degree murder. In Florida it would be called first degree murder. I was a little surprised the jury didn't find at least the father guilty of malice murder as well. I think part of what shows his depraved attitude toward the life of Mr Arbery was actually for the most part left out of the state trial. Prosecutors made a conscious decision to stay away from mention of racial animus, which is what the federal trial will be all about. I think it was a good decision on their part, they kept it more simple and the facts even without the racist motivation were enough for the jury to see what happened here, but I do think malice murder charges against the elder McMichael probably needed to be backed up by the evidence of his clear racist motivation. I'm OK with his verdicts though. He may get the possibility of parole in his sentencing, but he will likely die of old age in prison long before his first parole hearing ever comes around.

Has anyone heard when the sentencing will take place?

Date not set yet AFAIK. https://www.11alive.com/article/news/cr ... f014897394

[LM K]

Fuck Kemp this wasn't vigilantism this was a lynching. What are the sentencing guidelines for all the charges? What kind of time are we looking at here?

Malice murder and felony murder carry mandatory minimum of life with no chance of parole before 25 years*. So 3-5 life sentences depending on which white supremacist you're looking at. The rest of the charges don't really matter after that.

*Death sentence is possible, but I doubt it will be handed down, though the fact they did it even after being told to stand down by the police has me a little unsure of that.

The prosecuion said they are going to ask for life without the opportunity for parole.

For Greg McMichael, a minimum 25 years is a life sentence. He's 65/66, has had 2 heart attacks and one stroke. At 64 (time of Arbery's murder). He's extremely unhealthy. If he's not vaccinated, he's a dead man walking. Covid is rampant in jails and prisons.

Bryan is approx 56. 25 years in prison is likely a life sentence.

Travis McMichael is, imo, more likely than the other two murderers to get life without parole. He's 35/36. He'll be 60 by the time he's released.

I rewatched the video of the murder of Arbery. The only reason Greg McMichael didn't shoot at Arbery is because he kept fumbling with his gun. He almost dropped his gun twice.

The federal sentencing guidelines for hate crimes. All 3 murderers are facing life sentences for their federal charges. They won't receive life sentences, but the sentencing guidelines allow life sentences.

[zekeb]

Some states have Felony Murder. Why the need to call it "Felony" Murder? From what I've seen just about every state makes murder a felony. In just about every case manslaughter is also a felony. I'm just curious as to why there are so many different ways of charging someone with murder.

I've heard of Murder with Malice, but to me that's good ol' First Degree Murder.

[Maybenaut]

Some states have Felony Murder. Why the need to call it "Felony" Murder? From what I've seen just about every state makes murder a felony. In just about every case manslaughter is also a felony. I'm just curious as to why there are so many different ways of charging someone with murder.

I've heard of Murder with Malice, but to me that's good ol' First Degree Murder.

The felony in “felony murder” isn’t the murder itself. It’s killing during the commission of some other felony.

For example, you’re the getaway driver. Your buddy goes inside to rob a bank and accidentally kills someone inside. That’s felony murder for both of you.

They charge it that way to prevent the getaway driver from saying, “But I didn’t even kill anyone!” and in case the government can’t prove intent or malice, which might be difficult in the event of an accidental killing. But the state would want a felony murder conviction as opposed to second degree or manslaughter because they want to deter the commission of the felony.

In some jurisdictions it’s felony murder so long as the person is killed during the commission of any felony. In others, it has to be done during the commission of certain enumerated felonies.

[jcolvin2]

It would be amusing if there were something called “misdemeanor murder” to cover situations where someone gets killed in connection with a criminal conspiracy to remove mattress tags before delivery to the ultimate consumer.

[filly]

Robert Hirschorn, the great jury consultant and one of the best CLE presenters evah (I've seen him several times),was on CNN last night. He's also a lawyer. His educated guess is that Roddie and Papa may walk as he sees some "holes" in the case against them. He thinks Travis might get convicted of *something* but has doubts on the murder charge.

I post this so none of you get your hopes up.

I’m happy this guy’s analysis didn’t age well.

Me too! He didn’t say he had any inside knowledge of the jury which is, of course, his magic. Better to be pleasantly surprised than right.

[Maybenaut]

It would be amusing if there were something called “misdemeanor murder” to cover situations where someone gets killed in connection with a criminal conspiracy to remove mattress tags before delivery to the ultimate consumer.

There is in some jurisdictions, but they call it misdemeanor manslaughter.

[zekeb]

I learn something new every so often every day.

[zekeb]

It would be amusing if there were something called “misdemeanor murder” to cover situations where someone gets killed in connection with a criminal conspiracy to remove mattress tags before delivery to the ultimate consumer.

There is in some jurisdictions, but they call it misdemeanor manslaughter.

I presume this would generally involve a death due to a traffic accident.

[pipistrelle]

It would be amusing if there were something called “misdemeanor murder” to cover situations where someone gets killed in connection with a criminal conspiracy to remove mattress tags before delivery to the ultimate consumer.

There is in some jurisdictions, but they call it misdemeanor manslaughter.

I presume this would generally involve a death due to a traffic accident.

Wasn't Caitlyn Jenner involved in a fatal car accident a few years ago? I'm too lazy to look up how that was treated.

[Estiveo]

No criminal charges, civil suits settled.

[bob]

That wouldn’t fly where I practice. If there is more than one way to commit an offense, they have to say in the charging document which theory they’re proceeding under so the accused knows what he must defend against.

Another wrinkle is some jurisdictions don't require specifying a legal theory (e.g., felony murder versus malice murder) but do require specifying a factual theory (e.g., killing during the commission of a false imprisonment versus killing during a robbery).

* * *

For example, you’re the getaway driver. Your buddy goes inside to rob a bank and accidentally kills someone inside. That’s felony murder for both of you.

The getaway driver is a classic example of felony murder attaching when the participant had no intent to kill. But there's a movement afoot in legal circles to require more than mere participation in a felony.

* * *

There is in some jurisdictions, but they call it misdemeanor manslaughter.
I presume this would generally involve a death due to a traffic accident.

It would depend on the jurisdiction whether it has to be an enumerated misdemeanor or any misdemeanor.

It is meant for a scenario when a relatively minor crime leads to a death, like a fistfight where one of the combatant's heads hits a table and dies as a result of this freakish, unforeseen turn of events.

[humblescribe]

Fuck Kemp this wasn't vigilantism this was a lynching. What are the sentencing guidelines for all the charges? What kind of time are we looking at here?

Malice murder and felony murder carry mandatory minimum of life with no chance of parole before 25 years*. So 3-5 life sentences depending on which white supremacist you're looking at. The rest of the charges don't really matter after that.

*Death sentence is possible, but I doubt it will be handed down, though the fact they did it even after being told to stand down by the police has me a little unsure of that.

The prosecuion said they are going to ask for life without the opportunity for parole.

For Greg McMichael, a minimum 25 years is a life sentence. He's 65/66, has had 2 heart attacks and one stroke. At 64 (time of Arbery's murder). He's extremely unhealthy. If he's not vaccinated, he's a dead man walking. Covid is rampant in jails and prisons.

Bryan is approx 56. 25 years in prison is likely a life sentence.

Travis McMichael is, imo, more likely than the other two murderers to get life without parole. He's 35/36. He'll be 60 by the time he's released.

I rewatched the video of the murder of Arbery. The only reason Greg McMichael didn't shoot at Arbery is because he kept fumbling with his gun. He almost dropped his gun twice.

The federal sentencing guidelines for hate crimes. All 3 murderers are facing life sentences for their federal charges. They won't receive life sentences, but the sentencing guidelines allow life sentences.

Would these putative sentences from convictions or guilty pleas be concurrent with or consecutive to the state sentencing? Assuming that their appeals go nowhere, I don't want Travis getting out of prison when he is 60-65. A second life sentence would be nice that is served consecutively.

I agree that the 25 years for the father and Bryan will more than likely be enough to see them released from prison sporting a toe tag.

[LM K]

The prosecuion said they are going to ask for life without the opportunity for parole.

For Greg McMichael, a minimum 25 years is a life sentence. He's 65/66, has had 2 heart attacks and one stroke. At 64 (time of Arbery's murder). He's extremely unhealthy. If he's not vaccinated, he's a dead man walking. Covid is rampant in jails and prisons.

Bryan is approx 56. 25 years in prison is likely a life sentence.

Travis McMichael is, imo, more likely than the other two murderers to get life without parole. He's 35/36. He'll be 60 by the time he's released.

I rewatched the video of the murder of Arbery. The only reason Greg McMichael didn't shoot at Arbery is because he kept fumbling with his gun. He almost dropped his gun twice.

The federal sentencing guidelines for hate crimes. All 3 murderers are facing life sentences for their federal charges. They won't receive life sentences, but the sentencing guidelines allow life sentences.

Would these putative sentences from convictions or guilty pleas be concurrent with or consecutive to the state sentencing? Assuming that their appeals go nowhere, I don't want Travis getting out of prison when he is 60-65. A second life sentence would be nice that is served consecutively.

I agree that the 25 years for the father and Bryan will more than likely be enough to see them released from prison sporting a toe tag.

States typically go with concurrent sentencing.

I'm not sure if the defendants can serve state and federal sentences concurrently.

Regarding state sentencing.

In Oregon v. Ice, the Supreme Court held that states could give judges the discretion to decide whether a convicted defendant will serve a concurrent or consecutive sentence. There are some cases in which the judge will have no discretion in this matter because a state law may require a consecutive sentence.

A few years after the Supreme Court decision in Oregon v. Ice, Congress passed 18 U.S. Code § 3584, which provides judges discretion to decide whether the sentences will run consecutively or concurrently. The statute also states that the default rule is for concurrent sentences unless the state statute calls for consecutive sentences or the judge finds a consecutive sentence would be the best outcome in the case. If a person is convicted of attempting to commit a crime and actually committing the crime, then the judge will be restricted from giving the defendant a consecutive sentence. For example, someone who has been sentenced for attempted murder and murder, can’t serve a consecutive sentence. The statute also provides a list of factors judges should consider when determining what sentence to give defendants.

I'm curious about Greg McMichael's incarceration status. He's ex law enforcement. Does he need protective custody?

[chancery]

I'm not sure if the defendants can serve state and federal sentences concurrently.

Interesting. I did a quick search, and it seems as though the federal sentencing guidelines not only allow but require federal sentences to run concurrently with state sentences.

Federal judges are allowed to impose sentences that are longer or shorter than the guidelines for sufficient cause. I don't know if they are allowed to ignore the guidelines' direction that federal sentences that run concurrently with state sentences.

Speculation: I suppose that if the court had a reasonable basis for concluding that both the federal and the state sentence were anomalously short given the overall circumstances, it wouldn't be an abuse of discretion to order the federal sentence to run consecutively. Otherwise, otherwise. /speculation

[Tiredretiredlawyer]

I plan to start a thread about the federal charges. Trial is in February.

[LM K]

Does anyone know how McMichael Sr, McMichael Jr, and Bryan paid their attorneys? Each of the defense lawyers has a private practice. Would anyone take on this case for pro bono work? Did anyone fundraise for the defendants?

Travis lived with his parents, so he and his dad had only one house to sell to pay legal bills.