Progressives Have Been Obsessing Over the Wrong Trial

Progressive America has been obsessing over the wrong case. For weeks, activists and commentators have been laser focused on the trial of Kyle Rittenhouse in Kenosha, insisting that it illustrated systemic racism when all the players were white and the verdict turned on the application of Wisconsin’s permissive self-defense law. In doing so, the public has largely ignored a gut-wrenching trial about this exact malady. 

The facts in the Ahmaud Arbery case, which begins closing arguments today in Brunswick, Georgia, are straightforward. 

On the afternoon of February 23, 2020, Ahmaud Arbery, a 25-year-old black man and former high school football star, was taking his regular jog in the neighborhood of Satilla Shores. He was unarmed. 

Gregory McMichael, 65, who lived in the mostly white suburb, spotted Arbery, whom, he said, resembled a suspect in a series of local break-ins. He alerted Travis McMichael, his 35-year-old son, and the two pursued Arbery in their pickup truck armed with a shotgun and a .357 magnum handgun. A neighbor, William “Roddie” Bryan, 52, followed Gregory and Travis McMichaels in his own vehicle, trying to chase Arbery down. 

Video shot from Bryan’s phone shows Arbery running away from Bryan until he is blocked by the McMichaels’ truck, which is parked in the middle of the road.  The footage shows the elder McMichael standing in the truck bed and Travis McMichael standing beside the driver’s side door. Both are holding their guns. 

According to Travis McMichael’s testimony, he asked Arbery to “stop for a minute. Please stop.” When Arbery refused, there was a struggle, and Travis McMichael shot Arbery three times, fatally wounding him. 

The defendants face a slew of charges, including malice murder and felony murder. (The federal government has also brought hate crimes and kidnapping charges against the three men, claiming that they targeted Arbery “because of his race.”) 

In her opening statement, Cobb County Senior Assistant District Attorney Linda Dunikoski told the jury that Gregory McMichael barked at Arbery: “Stop, or I’ll blow your fucking head off.” He also said in a recorded interview with the police that Arbery “was trapped like a rat.” Bryan told investigators that Travis McMichael used a racial slur as he stood over Arbery’s body, although that remark was not introduced into evidence because Bryan did not testify. 

The defendants counter that race had nothing to do with what happened. They acted, their lawyers say, because they believed Arbery had burglarized a vacant house and were well within their power to apprehend him. (Arbery was seen on security footage going in and out of an unoccupied home shortly before his deadly confrontation with the defendants, but no stolen items were found on his body, nor had any burglary been reported.) Travis McMichael, who took the stand last Thursday in his own defense, insisted that it was Arbery who attacked him, creating “a life-or-death situation” that left him no choice but to shoot to kill. Detaining Arbery in the first place, his lawyer argued, was part of McMichaels’ “duty and responsibility” to keep his community safe.

In the current, zero-sum culture war, racism is either everywhere or nowhere. In particular, the term systemic racism—shorthand for the belief that racial bias is baked into our institutions—has become a lightning rod. It is either pervasively present, or it is rarely present at all. The result is often two echo chambers. In one, “systemic racism” is elasticized beyond any reasonable definition; in the other, it is dispatched as a vestige of the distant past.  

Systemic racism is not an explanation for all of what ails our country. The notion that things like calculus or admissions tests are examples of systemic racism leaches the words of any real meaning. But just because some activists have misused the phrase does not mean it isn’t still very much alive, perhaps most significantly in the functioning of our criminal justice system. The Arbery case provides a concrete example.

Whether you believe the defendants in this case are racist or not, it is undisputed that they felt empowered to act under Georgia’s citizen’s arrest statute, enacted in 1863. That law—which was rightly repealed by Georgia’s Republican governor in the wake of Arbery’s death—permitted civilians to detain anyone if they had “immediate knowledge” that the person committed a crime or “reasonable and probable grounds of suspicion” to believe he was a fleeing felon.  

It is this law that stands between the defendants and guilty verdicts for conduct that would otherwise be indefensible vigilante violence. While race-neutral on its face, it is rooted in racism.  As the Cornell historian Ed Baptist explained to me, “these laws going all the way back to the 1600s demonstrate a very long pattern of whites, particularly in the South, believing that they have the discretion to use deadly force against African Americans in situations that are outside their homes when they are not authorized in any professional way to do this.”  

The Georgia law is the direct descendant of slave patrols, which existed throughout the state and elsewhere in the South beginning in the 1700s to permit white landowners to capture runaway slaves and quash uprisings on plantations. But with the tide turning in the Civil War, and the institution of slavery imperiled, patrol power was preserved in the citizen’s arrest statute, which applied to free people as well as slaves. The law was introduced while the state’s criminal code was being drafted, a process spearheaded by a white supremacist named Thomas R.R. Cobb, who wrote a book lauding the intellectual and health benefits of slavery. 

The law worked as designed. From 1877 to 1950, nearly 600 black people were lynched in Georgia, often chased down by armed whites purporting to stop a criminal act.  These murders went unprosecuted. Indeed, those who carried them out could plausibly claim they were acting in accordance with the law.  Nearly 75 years later, Gregory McMichael, Travis McMichael and William Bryan seek to lay claim to this same legal justification: a state-sanctioned “duty and responsibility” to safeguard their communities. 

That the case found its way into a courtroom is nothing short of remarkable. The officer who was called to the scene determined that no crime had occurred and let the defendants go. Had the world not seen what they did to Arbery when Bryan’s recorded video was leaked to the media, they would still be free. It was not until the video went viral that the Georgia Bureau of Investigations stepped in, on May 6, and arrested both McMichaels—more than two months after Arbery’s death. Before that, prosecutors in two different counties had declined to bring charges. “Under Georgia law this is perfectly legal,” wrote one. It was the state attorney general who finally took over and presented the case to a grand jury.  

One of the many lessons of the Kyle Rittenhouse case—a lesson that some conservatives are learning at long last—is that the state is not always a force for good. Prosecutors can commit misconduct in their zeal to convict. Judges can grandstand, show favoritism, and generally behave badly.

Similarly, the case of the murder of Ahmaud Arbery—and the legal fig leaf behind which his murderers are hiding—ought to undermine some of our implicit respect for the state’s authority. It ought to make us ask how a law like this, concocted just as the antebellum regime of white supremacy was crashing down, managed to persist into the third decade of the 21st century. It ought to make us wonder whether some of those claims about systemic racism being baked into some of the institutions of American life are not so far-fetched after all.

Lara Bazelon is a professor at the University of San Francisco School of Law where she directs the criminal and racial justice clinics. Her first novel, A Good Mother, was published earlier this year.