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Lawyers left racism out of the trial over Ahmaud Arbery’s death. Here’s why.

Prosecutors made no mention of the slain 25-year-old’s race until the very end of the trial.

People behind a barricade shout and raise their right fists.
People react outside the Glynn County Courthouse in Brunswick, Georgia, on November 24, following guilty verdicts for the defendants in the trial of the killers of Ahmaud Arbery. Greg McMichael, his son Travis McMichael, and a neighbor, William “Roddie” Bryan were found guilty of murder in the February 2020 fatal shooting of 25-year-old Ahmaud Arbery.
Sean Rayford/Getty Images

From the moment video footage of Ahmaud Arbery’s murder went viral on social media in May 2020, many viewers labeled it a lynching.

They concluded that racial animus guided Gregory McMichael, Travis McMichael, and William “Roddie” Bryan to pursue Arbery and shoot him without cause. For many who saw the video, that a Black man who was jogging down the street in the middle of the day was then cornered and shot dead by three white men unquestionably constituted a lynching motivated by the color of Arbery’s skin as he traveled through a mostly white suburb of Georgia.

There were other glaring elements. Bryan, who recorded the fatal encounter, told authorities that Travis McMichael, who pulled the trigger, called Arbery a racial slur after firing. One of the pickup trucks that the men used to chase Arbery featured a vanity license plate of the old Georgia state flag. The flag, flown from 1956 to 2001, prominently displayed the Confederate battle flag, which has come to be a symbol of the Lost Cause ideology that falsely holds the Civil War was not fought over slavery.

Systemic issues of racism loomed large over the case, too. The men were arrested 74 days after murdering Arbery, only after video of the shooting was leaked and went viral, and following days of protests.

Why did the arrests take so long? critics wondered. Body camera footage from the first responding officer on the scene on February 23, 2020, showed the officer tending to Travis McMichael, telling him to “take a breath” and to be careful not to get blood on himself after shooting Arbery dead. The white officer seemed to empathize with him. “Do what you need to do,” “I can only imagine,” and, “You got anyone we can call for you?” the officer said to Travis McMichael. The treatment was reminiscent of the officers who purchased a Burger King meal for an avowed white supremacist just after he murdered nine Black churchgoers in Charleston, South Carolina, in 2015. Why did these white men who committed heinous acts against Black people get gentle handling from the police?

But despite all the racial issues that surrounded the core facts of the case, skin color hardly came up during this month’s trial of the three men who were convicted on Wednesday of Arbery’s murder. It wasn’t until the closing argument that prosecutor Linda Dunikoski mentioned Arbery’s race. The McMichaels and Bryan, she said, felt entitled to chase Arbery down “because he was a Black man running down the street.”

Legal experts and activists who spoke to Vox said the avoidance of addressing race in the trial was strategic. The question before prosecutors was stark: “Play it safe” by not offending a nearly all-white jury with talk of race and racism, or take a risk by addressing the elephant in the room.

“The prosecutors walked a thin line in trying to persuade jurors. They’re in the Deep South, so a Confederate flag in a juror’s mind, superficially, may not equate to racism or white supremacy. If you cross that line, you’ve lost them,” said Tiffany Jeffers, a professor of law and legal practice at Georgetown University Law Center.

But some experts argued that the prosecutors’ choice not to mention race in front of a nearly all-white jury suggests that progress on racial justice has been marginal.

​​“A lot of people in our country adhere to the myth of colorblindness. They think to talk about race makes you racist, so they’re afraid to talk about race. The whitewashing of this trial needs to be addressed,” Justin Hansford, a professor at the Howard University School of Law, said.

The defense used racial tropes while the prosecution evaded race

Prosecutors originally signaled that they planned to introduce race-related evidence during the trial to help jurors see racism as a motive for the three men. The evidence included a Facebook post by Travis McMichael referencing Johnny Rebel, the 1960s-era white supremacist singer who made racist music riddled with the n-word; racist text messages from Bryan’s cellphone; and an “Identity Dixie” Facebook post by Gregory McMichael, according to the New York Times. Before the trial, the defense tried to exclude the Confederate emblem vanity plate from the trial but the judge permitted it, though the prosecution never brought it up to the jurors. In fact, none of these details were presented to the jury.

While the prosecutors didn’t rely on the claim of racism, race entered the trial in other ways.

One defense attorney insisted that Black pastors and leaders like Jesse Jackson and Al Sharpton not sit inside the courtroom since they would supposedly intimidate the jurors. “We don’t want any more Black pastors coming in here ... sitting with the victim’s family, trying to influence the jurors in this case,” defense attorney Kevin Gough told the judge. Gough later apologized.

From left, Ahmaud Arbery’s mother Wanda Cooper-Jones, the Rev. Al Sharpton, Arbery’s father Marcus Arbery, and civil rights attorney Benjamin Crump react after the jury convicted Travis McMichael on November 24 in the Glynn County Courthouse in Brunswick, Georgia.
Stephen B. Morton, Pool/Getty Images

The defense team also invoked race through a series of dog whistles about Arbery’s hygiene and appearance, though they never mentioned the color of Arbery’s skin or that of his murderers.

“Turning Ahmaud Arbery into a victim after the choices that he made does not reflect the reality of what brought Ahmaud Arbery to Satilla Shores in his khaki shorts with no socks to cover his long, dirty toenails,” defense attorney Laura Hogue told the jury in closing remarks.

Legal experts and activists following the trial blasted Hogue’s rhetoric. Civil rights attorney Benjamin Crump claimed Hogue’s description likened Arbery to a “runaway slave” and ludicrously suggested that the men had the right to “chase him and make him comply or kill him.”

Defense attorneys blended these racist tropes with arguments about the three men needing to patrol Satilla Shores to keep residents and property in the suburban neighborhood safe.

The makeup of the jury forced race to loom even larger in the trial before it began. Eleven jurors were white and one was Black in a county that is 27 percent Black.

“The [nearly all-white makeup of the jury] was completely intentional. The judge noted it but didn’t rule on it,” said Jeffers. “You expect juries to resemble the communities they are representing.”

The Sixth Amendment guarantees a right to a criminal trial by an impartial jury, but there is no law that states a jury needs to be racially representative of the area where it takes place. Lead prosecutor Dunikoski claimed the defense disproportionately struck qualified Black jurors and based some of their strikes on race. Though the jury convicted the men of murder, there’s ample reason to question the decision to strike almost all Black jurors from the start, experts told Vox.

“Whiteness is a race. It’s an ideology, and there is bias associated with it, but we don’t have those discussions,” Jeffers said. “All of the burden is shifted onto Blackness and any potential bias Black people have because of their race. But no one talks about the potential bias of white jurors.”

While the verdict in the trial was widely hailed by civil rights leaders, many experts who spoke to Vox signaled that the country still has not grappled with racism and how it infiltrates many facets of American life.

“All these trials seem to be happening at once, and these conversations aren’t going away,” Hansford said, adding that the trial only made the need for teaching subjects like critical race theory more urgent. “It taught me how they can try to use these racial tropes like talking about someone’s ‘dirty toenails’ to win freedom for defendants,” he said.

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