The Men Who Killed Ahmaud Arbery Were Convicted of Murder. Now They Are on Trial for Racism.

According to a former federal prosecutor, the seemingly redundant case sends "the message that the Justice Department won't tolerate this type of racist hatred."

The three men who chased Ahmaud Arbery through a Brunswick, Georgia, suburb in 2020, resulting in a deadly confrontation, were convicted of murder by a state jury in November. All three were sentenced to life in prison. Now the same three white men are on trial in federal court for the same conduct, facing the possibility of additional life sentences if prosecutors can persuade the jury that they targeted Arbery, who was black, "because of his race."

According to the Supreme Court, this second prosecution does not amount to double jeopardy, because the state and federal crimes, defined by two different "sovereigns," are not "the same offense." But since Travis McMichael, Gregory McMichael, and William Bryan are already serving life sentences, you might wonder why the federal government is bothering to prosecute them again.

The answer seems to be that the Justice Department wants to condemn them as racists as well as murderers. "This is the kind of case you really need to do to send the message that the Justice Department won't tolerate this type of racist hatred that results in violence," former federal prosecutor Shan Wu told The Washington Post. Federal prosecutors are using the trial to make a moral statement about the defendants' beliefs, which is not ordinarily seen as a legitimate function of criminal courts.

Yesterday, The New York Times reports, the jury was presented with "voluminous digital evidence of racism" aimed at establishing 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. "White Irish slaves were treated worse than any other race in the U.S.," the post said, followed by "vulgar language that contrasted the Irish with other racial or ethnic groups who demanded 'free' things."

The prosecution also noted Travis McMichael's reaction to "a video of a Black person playing a practical joke." The younger McMichael, who fired the shotgun that killed Arbery, "responded by using a racist epithet and saying he would kill the person who made the joke."

The Post reports that the evidence also included "a litany of conversations" in which Travis McMichael "denigrated Black people, often while calling them the n-word." The messages showed that McMichael "associated Black people with criminality" and "blamed them when he struggled to get a commercial driver's license, accusing them of 'running the show.'" In one message, McMichael said "he loved his job because 'zero n—-rs work with me.'"

What about Bryan, who drove his own pickup truck during the chase and used his phone to record the final minutes of the encounter? In her opening statement on Monday, NPR reports, federal prosecutor Bobbi Bernstein said the government would show that Bryan "used the N-word and other slurs, in one instance, after learning that his daughter was dating a Black man. She said Bryan commented that his daughter 'has her n—–r now.'"

It is not a crime to be a bigot, of course. The point of all this is to establish the defendants' motive for chasing and assaulting Arbery, which is crucial to convict them of 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.

We may reasonably surmise, especially in light of the views that the defendants had expressed, that they would not have been so quick to suspect Arbery of burglary if his skin had been a different color. But that is not the same as proving beyond a reasonable doubt that they chased, detained, and assaulted him "because of" his race.

"The most compelling pieces of evidence will always be those that are most directly tied to the incident at hand," Florida State University law professor Avlana Eisenberg told the Post. Eisenberg "noted that proving motive can be challenging, but also warned that acquittals in the hate-crimes case would deepen a disconnect between official findings and the 'court of public opinion.'"

That concern is rather puzzling. There is a big difference between what counts as proof in the "court of public opinion" and what counts as proof in an actual court. If the jurors, after hearing all the relevant evidence, conclude that the prosecution has not met its burden of proving a racist motive for chasing and killing Arbery, they certainly should not convict the defendants anyway because that is what public opinion demands.

Convicting Travis and Gregory McMichael would have no impact on their punishment, since their sentences do not allow parole. A federal conviction theoretically could make a difference for Bryan, whose state sentence allows him to seek parole after 30 years. But he will be in his early 80s at that point, assuming he is still alive.

In other cases where people have been charged with federal "hate crimes," by contrast, that decision had a big impact on the penalties they faced. In 2020, for instance, the Justice Department charged Tiffany Harris, a black woman who had already been charged with several state crimes in New York after allegedly slapping three Orthodox Jews on the street, with violating 18 USC 249.

That law applies to an offender who "willfully causes bodily injury" to someone "because of" that person's "actual or perceived race, color, 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.

The evidence of motive in Harris' case was pretty straightforward. 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. "Fuck you, Jews," she reportedly said during the second incident.

In the case against Travis McMichael et al., the prosecution says, the crucial evidence can be found in the ugly attitudes they expressed months or years before their crimes. Other seemingly redundant federal "hate crime" cases were based on evidence such as a racist manifesto and anti-Semitic social media posts. When such prosecutions threaten enhanced penalties, such as longer prison terms or execution rather than a life sentence, the government is effectively trying to punish people for their opinions. 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.