The three men — Bryan, McMichael and his father, Gregory McMichael — were charged last month with felony murder in the Feb. 23 shooting death of Arbery, 25. The defendants face a minimum of life in prison if convicted on the murder charges, or more severe penalties of life with parole or death.
Lawyers for the McMichaels argue that their clients had acted lawfully as they pursued a man they believed to be responsible for burglaries in the neighborhood, and that the younger McMichael acted in self-defense when Arbery was shot. But GBI investigator Richard Dial countered that argument Thursday, saying it was Arbery who was fighting for his life.
The case has been plagued by allegations of bias and passed through multiple prosecutors, before the McMichaels were arrested 74 days after Arbery’s death. Activists in Georgia took to the streets to protest the delay, weeks before demonstrations spread nationwide over the death of George Floyd, a black man in Minneapolis who died after police held him down for more than eight minutes as he gasped for air.
Arbery’s death attracted nationwide attention after Bryan’s video went viral, showing Arbery attempting to evade the McMichael’s truck before engaging in a struggle over Travis McMichael’s shotgun. Bryan’s attorney has said he was an innocent bystander who merely filmed the deadly encounter on his cellphone. The McMichaels face an additional aggravated assault charge while Bryan is also charged with attempting to illegally detain and confine.
A local district attorney, George E. Barnhill, argued in April the suspects’ actions were lawful — that they were trying to make a citizen’s arrest of a suspected burglar. The case is now on its fourth prosecutor.
Travis McMichael’s attorney, Jason Sheffield, on Thursday asked the special agent in charge of the case whether Arbery’s killing was really a story of “self-defense.”
“You are of the opinion that this was not self-defense by Mr. McMichael?” he asked Dial, after reviewing the details of the encounter.
“I don’t believe it was self-defense by Mr. McMichael. I believe it was self-defense by Mr. Arbery,” Dial responded. “I believe Mr. Arbery was being pursued, and he ran until he couldn’t run anymore. And it was: turn his back to a man with a shotgun, or fight with his bare hands against a man with a shotgun, and he chose to fight.”
Dial spent several hours on the stand Thursday testifying to the events of Feb. 23, as the three men — two of whom were armed — chased Arbery through Satilla Shores, a marshy enclave near his home where he often jogged.
The incident began when Gregory McMichael saw Arbery running through the neighborhood and suspected he was responsible for recent burglaries, Dial said. Security video had shown Arbery had been spotted in a nearby house that was under construction, prompting a neighbor to call 911, although there is no indication he took anything from the site.
Dial said McMichael called for his son, Travis McMichael, and the pair hopped into a pickup truck and gave chase — the son armed with a shotgun, the father carrying a .357 magnum. Soon after, Dial said, they were joined by a neighbor, Bryan, who helped corner Arbery and later recorded his death on his cellphone camera. None of the suspects called 911 before pursuing Arbery, Dial said.
Dial said Gregory McMichael told authorities he shouted at Arbery: “Stop! Stop! We want to talk to you” as they tried to effect a kind of citizen’s arrest before McMichael fired the first shot and a scuffle ensued that ended in Arbery’s death.
In his testimony, Dial described aspects of the case that have been debated among prosecutors and people across the country.
He said Arbery was shot after trying to evade Bryan and the McMichaels for several minutes and engaged only after he appeared to run out of options to flee. He also gave testimony that disputed Bryan’s version of events — that he was just a witness and a bystander.
Gregory McMichael “described that Mr. Bryan was trying to block him in as well,” Dial said. “Mr. Bryan admits to joining the pursuit of Mr. Arbery. He admits to trying to block Mr. Arbery in, trying to detain him several times.”
Bryan’s attorney, Kevin Gough, argued Thursday that he was nothing more than an “innocent bystander” doing the duty that any “patriotic” American would do.
Thursday’s testimony was a marked contrast to the version of events authorities in Georgia had detailed in April before the damning video came to light and caused a national firestorm. In an April letter to the Glynn County police chief, Barnhill, a local prosecutor, had characterized the fatal shooting of Arbery as justifiable.
The McMichaels were “in hot pursuit” of a suspect with a checkered criminal history, the district attorney wrote, which helped “explain his apparent aggressive nature and his possible thought pattern to attack an armed man.” The McMichaels were making a citizen’s arrest of a person they believed to be involved in a burglary, he argued — and Arbery contributed to his own death by attacking Travis McMichael as he held a gun.
“Arbery initiated the fight,” Barnhill wrote. While McMichael’s finger was on the trigger, “we do not know who caused the firings. Arbery would only had to pull the shotgun 1/16th to 1/8th of one inch to fire the weapon himself and in the height of the altercation this is entirely possible.”
On Thursday, Travis McMichael’s attorney, asked Dial about Arbery’s history of mental health problems — which Barnhill had earlier implied contributed to the altercation, along with a criminal history that included a weapons violation and shoplifting accusation.
The prosecutor raised an objection. “There’s no evidence before the court … that these defendants even knew what history the deceased victim in this case had, so this serves no purpose in this case other than to cast his character into question,” he said.
Arbery, Dial said, had been previously diagnosed with a mental illness that manifested as hallucinations, he said. He did not know the date of that diagnosis. He said Arbery was not being treated for any mental illness at the time of his killing.
The lead investigator on Thursday also detailed other examples of Travis McMichael’s alleged racism.
“Have you seen any other evidence that he has used that horrible ‘n-word’ anywhere else?” Sheffield asked Dial.
Dial said that investigators found an Instagram post where Travis McMichaels had suggested that someone should blow a “f---ing n---er’s head off” and also wrote on social media that he loved his job in the U.S. Coast Guard because he was out on a boat, and “there weren’t any n words anywhere.”
Authorities worried that the day’s testimony would further inflame tensions in a nation already on edge after the killing of Floyd on May 25. Floyd died after a Minneapolis police officer held his knee on the black man’s neck for more than eight minutes. Protests calling for police reform, equal justice and an end to systemic racism have convulsed dozens of cities around the world over the past week.
A day before the hearing, Georgia Gov. Brian Kemp (R) said security around the demonstrations in the state would be increased. “We will take appropriate action to hold bad actors accountable if they try to infiltrate peaceful gatherings to cause chaos,” Kemp said. “Let me be clear: We will not tolerate disruptive, dangerous behavior or criminal conduct. We will put the safety of Georgians first.”
Abigail Hauslohner contributed to this report.
An earlier version of this report stated that all three defendants appeared via video at the hearing. Only Gregory and Travis McMichael appeared. The reference in the article and an earlier secondary headline have been corrected.