That’s half-right. There’s no way this would have occurred without the video leaking. Remember, local cops and the DA’s office had the footage the whole time. It’s just that they somehow failed to see that the McMichaels were the aggressors in the confrontation until the clip went public and the rest of the world had to politely point it out to them.
In a way, it’s worse than that. The video may have actually gotten the McMichaels off the hook initially. The raw facts of the case are very bad for them: An unarmed man lay dead in the road after the McMichaels, brandishing guns, and a friend went looking for him. That’s alarming and suspicious, worthy of a skeptical investigative eye.
But the now-recused DA looked at the same clip you and I watched and thought, “Oh, I see. Arbery, who was chased down by two vehicles and then confronted by men with firearms, was the aggressor here.”
In a better world he’d be charged with something too.
Gregory McMichael, 64, and his son, Travis McMichael, 34, were arrested on Thursday evening and were booked into the Glynn County Jail.
“Based on our involvement in this case…within 36 hours we secured warrants, that speaks volumes for itself to the probable cause in this case,” said GBI’s Director Vic Reynolds at a press conference on Friday morning…
“I don’t think I’ll ever be in a mental state where I can actually watch the video. I had others that watched it that shared what they saw and that just was enough,” Wanda Cooper-Jones told ABC News in an interview that aired Thursday morning on “Good Morning America.”
The GBI wasn’t brought into the case until Tuesday, when the new DA in charge requested their help. It took them less than two days to find probable cause after local cops couldn’t find any in two months. “Probable cause was clear to our agents pretty quickly,” said the head of the GBI, pointedly. “I’m very comfortable in telling you there’s more than sufficient probable cause in charging felony murder.” Whether they would have moved as nimbly without the public outcry over the video is a separate question. Presumably they wouldn’t have been involved at all.
My first reaction after hearing the news last night was, “Uh oh. Did they overcharge?” Without seeing the statute I didn’t know how Georgia law defined “murder.” The McMichaels are guilty of an awful lot but proving premeditated intent to kill would have been difficult given the facts as we know them. But it turns out the statute doesn’t require premeditation. It’s broad:
(a) A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.
(b) Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.
(c) A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.
We could have a long debate about whether the McMichaels’ actions showed “implied” malice, but we don’t need to. The felony murder charge here is straightforward. The Georgia statute on aggravated assault defines that offense as assault with a deadly weapon. That’s a felony, of course. Kill a man in the course of committing a separate felony and you’re on the hook for his murder.
I think they also could have been charged with false imprisonment: “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” The GBI may have concluded that it wasn’t worth fighting that battle since the defense could have argued that Arbery was never actually confined or detained. The McMichaels tried to confine him by having their friend cut Arbery off with his car on one part of the road and then cutting him off with their own truck in the other direction. They tried to detain him by demanding that he stop and speak to them while brandishing weapons. But they could have argued that Arbery still had the option to run past the truck and continue down the road.
Which would have been ludicrous. His attempts to choose flight over fight had been thwarted several times — the friend cutting him off, Travis McMichael stepping out of the truck to block him in the road, then McMichael coming around towards the front of the truck to confront Arbery again as he ran past on the passenger side. But they’re desperate for a defense so they might have resorted to it. GBI probably figured that it was silly to press that felony when they could choose the much less controversial felony of aggravated assault instead.
The McMichaels will presumably argue at trial that this wasn’t assault, it was a lawful citizen’s arrest. It wasn’t, for reasons I’ve already explained, but it’s their best shot. It’s worth thinking about what a meritorious citizen’s arrest would look like as a contrast with what the McMichaels did, though. Yesterday I gave the example of a bank robber pulling a gun on a teller and being tackled and detained by someone behind him in line. Why do we grant special legal authority to a private citizen to detain another private citizen in a case like that? For two reasons. One: There’s zero doubt about whether the suspect is guilty. The citizen making the arrest has witnessed the crime personally. And two, importantly: The police aren’t available. Not only aren’t the police available, the police can’t even be summoned. Whip out your phone to dial 911 when an armed robber is holding up a bank six feet in front of you and you’re apt to get your head blown off. We allow citizens to make an arrest in that situation because we don’t want the bank robber to waltz out of the bank and escape. If you’re willing to take the risk of stopping him, the law has your back.
Those two criteria, zero doubt about guilt and the police being unavailable, are the opposite of the situation faced by the McMichaels. They’d never witnessed Arbery committing a crime; they thought he looked like a suspect in an earlier offense. And the police very much were available. They could have dialed 911, told the sheriff that they thought they’d spotted a wanted man, and let the police handle the rest. If they were worried about Arbery disappearing before the sheriff reached the scene, they could have followed him from a distance in their truck. Standard neighborhood-watch stuff. No need for confrontation.
Here they are being carted away yesterday. Charges haven’t been filed against their friend, but that could change. Exit quotation from the GBI chief: “We’re investigating everyone involved in the case, including the individual who shot the video.”
Update: Trump has seen the video too and pronounced it “very disturbing.”