Njeri Mathis Rutledge and Geoffrey S. Corn
There’s an old saying in the courtroom that when the law is against you hammer on the facts, when the facts are against you hammer on the law, but when both are against you hammer on the table. This week, a defense attorney for the men who killed Ahmaud Arbery in Georgia chose to pull out a different hammer to distract from both the facts and the law: the racist hammer.
Yet, by its guilty verdict Wednesday, the jury rejected the defense’s obvious efforts to exploit what it hoped would be the racial undercurrent.
Instead, the jury did its duty and followed the law by answering “no” to the critical legal question: whether the three defendants, Greg McMichael, Travis McMichael and William “Roddie” Bryan validly engaged in a citizen’s arrest that led to a justifiable use of deadly force against Ahmaud Arbery?
They did not, and as a result, all three men were found guilty of felony murder. They must be accountable for the unlawful killing of this innocent victim.
This was a good day for justice. But the verdict cannot and should not negate the way in which race permeated this case.
For the prosecution, it was nothing more than the victim’s race – or more precisely the inherent bigotry triggered by his race – that led the three defendants to chase him down and initiate the alarmingly violent confrontation.
For observers, the legal process that allowed the defense to remove all but one African American juror from the case in a community that is nearly 27% Black – even with the judge voicing his concern that the tactic appeared to indicate discrimination – seemed perplexing.
And for too many Americans, it was once again time to brace for the all-too-common “not guilty.”
But for all of us, this case is a powerful illustration of how the legitimacy of criminal justice is always vulnerable to the corrosive effect of racial bias.
The defense’s new level of low
It was essential for the defense to characterize Arbery as a menacing presence. Only by doing so could they justify the conduct of their clients. That is not surprising and is a common tactic in a self-defense case. But using Arbery’s race as the basis for that characterization went too far.
Specifically, Laura Hogue, one of Greg McMichael’s lawyers, stated: “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.”
This description was both puzzling and inflammatory, but also recognized immediately as a despicable effort to tap into inherent racial bias to justify the actions that led to his death. While blaming a victim’s aggressive conduct is logical to assert self-defense, criticizing a decedent’s clothing and hygiene is a new level of low.
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The description of long dirty toe nails, taken from the autopsy report, and the emphasis of the type of shorts he was wearing with no socks helped paint Arbery as an outsider who did not belong in a community that may wear expensive exercise gear and get regular pedicures.
And why not? What down side was there to take that shot hoping it would appeal to the darker instincts of the almost all-white jury? Such an argument might resonate with someone who agrees that a young Black man who “really doesn’t fit” running down that street was automatically suspicious, who can’t understand why Arbery would resist after being chased down and confronted with a gun.
Questioning the system’s legitimacy
Yet isn’t it ironic that what was truly dirty weren’t Arbery’s toenails, but the effort to use that racist hammer. Yes, it is the duty of defense counsel to zealously advocate for their clients. But there is a line between zealous advocacy and the effort to exploit pernicious racial stereotypes and biases.
While there seems little doubt that such bias was the principal motivation for the defendants’ choices that fatal day, attempting to leverage them to vindicate those actions crosses the line from ethical advocacy to corruption of the criminal justice process.
And when such tactics are on full display as they have been in this case, is it any wonder that too many Americans question the legitimacy of this system?
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So, while the verdict is a credit to both the prosecution and the jury that returned it, no one should overlook how from inception this case is about more than the law; it was about race.
Results like today’s may inspire a sigh of relief that the criminal justice system worked, but it will take much greater determination from all Americans to purge racial bias from our criminal justice system and our society at large.
Njeri Mathis Rutledge, a professor of law at South Texas College of Law Houston and a member of USA TODAY’s Board of Contributors, is a former prosecuting attorney, a wife and a mother. She graduated from Spelman College and Harvard Law School. Follow her on Twitter: @NjeriRutledge
Geoffrey S. Corn is The Gary A. Kuiper Distinguished Professor of National Security at South Texas College of Law Houston in Texas. His teaching and scholarship focus on the law of armed conflict, national security law, criminal law and procedure, and prosecutorial ethics.