Federal prosecutors saw the plea deal as a victory: further justice for Ahmaud Arbery, a Black man in Georgia hunted down and killed by three White men, and a historic step in the goal of advancing civil rights.
One of the men, Travis McMichael, 36, will return to Wood’s courtroom in Brunswick, Ga., on Friday to have an opportunity to withdraw his guilty plea, now that the 30-year prison sentence prosecutors agreed to is not an option. His father, Gregory McMichael, 66, pleaded not guilty in a court filing Thursday night. Jury selection in Gregory McMichael’s federal trial will begin Monday. If the younger McMichael changes his plea, he will face a jury alongside his father.
For the Justice Department, securing a plea settlement on a federal hate-crime charge would have marked a rare coup, sending a strong public message that the U.S. government “takes crimes motivated by racial animus very seriously and is committed to prosecuting them,” said Joyce Vance, who served as U.S. attorney for the Northern District of Alabama from 2009 to 2017.
Such cases are complicated and difficult to win, experts said. Federal prosecutors declined to prosecute 82 percent of hate-crime suspects investigated from 2005 to 2019, according to a Justice Department report last summer. During that time, the U.S. government secured hate crimes convictions, on average, in just 19 cases per year.
Vance noted that the McMichaels, who denied a racial motive in their state trial, “would have to acknowledge under oath that they killed Ahmaud Arbery because he was Black. That would be a very powerful moment for the country.”
But the Arbery family was outraged by the prosecutors’ offer to the two men, said S. Lee Merritt, a lawyer for Cooper-Jones.
The deal was structured to allow the McMichaels — who were convicted in Georgia state court of felony murder and sentenced to life in prison without the possibility of parole — to spend 30 years of their sentence in federal prison. The Arbery family believed that would mean more lenient conditions for the McMichaels and demanded that prosecutors withdraw the plea agreement, Merritt said. But the Justice officials, holding up the signed paperwork on the Zoom screen, said no.
“They said it was already done and represented a promise to the McMichaels. We said we did not particularly care if it was a promise to the McMichaels,” Merritt recalled. “We finished with, ‘It’s necessary to withdraw the plea, or you’ll find yourself in conflict with the family.'”
Experts said the case illustrates a particularly painful example of the competing priorities of prosecutors and victims in criminal cases. While the government’s responsibility is to protect the interests of the public at large, victims and their families are focused on the narrower matter of legal retribution for personal injury.
“The victims get their say, but the prosecutor is not primarily thinking about the victim,” said Phyllis Gerstenfeld, professor of criminal justice at California State University at Stanislaus. “That’s what civil law is for. Harms like this are not just to the victim and the family, but also to society.”
Vance — whose father-in-law, a federal judge, was murdered by a mail bomb in 1989 — said she empathized with the Arbery family. But she also said federal prosecutors appeared to go “above and beyond what they needed to do” in consulting the family. Once the deal was signed, Vance said, it represented a legal contract and could not be withdrawn.
“What I would have done as a prosecutor is always talk to the victim’s family and take their views into consideration,” Vance said, “but also be clear that my responsibility is to the United States writ large.”
The McMichaels and William “Roddie” Bryan were convicted in Georgia state court in November on charges that they had pursued Arbery, 25, who was jogging on Feb. 23, 2020, in a chase that ended when Travis McMichael confronted Arbery and shot him three times. Bryan recorded the crime on a cellphone. He was not involved in the plea deal talks; he will also be part of the federal proceedings that are scheduled for Monday.
Merritt said Justice officials first raised the potential for a deal in the federal case before the men were sentenced in state court in early January. Federal authorities, he said, suggested the McMichaels would get a tougher sentence on the federal crimes than they would on the state conviction.
But the Arbery family rejected the proposal, willing to take their chances with the state court process, Merritt said. They felt vindicated when Judge Timothy R. Walmsley issued life sentences. At that point, he added, “we were content that the family has won. The federal case was the cherry on top.”
Lawyers for the McMichaels again approached federal prosecutors, according to a person involved in the case who spoke on the condition of anonymity to discuss the private deliberations. The McMichaels were concerned that the Georgia state prison system would be particularly unsafe, given the racial nature of their crime and the fact that Gregory McMichael was a former police officer.
“They come to us and say, ‘We have another plea offer of 30 years.' We say, ‘Go for it. Sounds great,’” Merritt said of Justice officials. But he emphasized that he and Ben Crump, who represents Marcus Arbery, Ahmaud’s father, made clear in discussions with Tara Lyons, the assistant U.S. attorney for the Southern District of Georgia, and Justice Department officials in Washington, D.C., that any federal plea deal must not undermine the severity of the state sentence.
Crump did not respond to a request for comment. Representatives for Cooper-Jones and Marcus Arbery also did not respond.
Assistant Attorney General Kristen Clarke, who heads Justice’s civil rights division, offered a different narrative. In a statement Monday, Clarke, who declined an interview request, said the department entered into the plea agreement only after the family’s attorneys “informed me that the family was not opposed to it.”
Clarke, who is Black, is highly regarded in the civil rights advocacy community, having served as the head of the Lawyers’ Committee for Civil Rights Under Law. Merritt called her a “peer hero” and said she spoke directly with him and Crump during the negotiations. Merritt said Clarke told him she was mindful of the family’s interests, and that “it was not her policy to go against the wishes of the family had she not believed sincerely that she had the family’s approval.”
Jonathan M. Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, called it unusual for the Justice Department to pursue a criminal civil rights case against defendants who have already been convicted and received a harsh sentence in state court. Unless federal prosecutors worried the state conviction could be overturned on appeal, “it’s hard to identify what the federal interest is here,” said Smith, who served as the head of the special litigation section in the Justice Department’s civil rights division during the Obama administration. He pointed to the federal prosecution in 1993 of police officers who assaulted Rodney King in Los Angeles and were acquitted on state charges as an example of how the Justice Department might typically intervene.
In pressing for their clients to be transferred to federal custody, lawyers for the McMichaels pointed out that the Justice Department last fall announced a federal civil rights investigation into allegations of abusive treatment of inmates in Georgia’s state prison system, according to the person familiar with the deliberations.
Last Friday, federal prosecutors and the defense team signed the plea deal, which required the McMichaels to plead guilty to the federal charge of intimidating and interfering with Arbery’s right to use a public street because of his race. Under the terms, the men waived their rights to an appeal.
At the court hearing Monday, Lyons, the prosecutor, touted the deal as one that “powerfully advances the larger interest of justice” and said the defendants would admit “publicly in front of the nation that this offense was racially motivated.”
But Cooper-Jones told the court that the McMichaels were trying to use the hate-crime charge to their tactical advantage.
“All they would have to do is stand up and say that they were motivated by hate, and then this court will concede to their preferred conditions of confinement,” Cooper-Jones said. “I do not need to hear them say they were motivated by hate. That does me no good. It does my family no good.”
The next steps for the McMichaels carry varying degrees of risk. The botched plea deal means they have already admitted in public to being motivated by racial animus, potentially swaying a federal jury if their case goes to trial. On the other hand, such cases remain challenging for prosecutors and a conviction is far from assured, experts said. Either way, if they are found guilty, Wood will have significant discretion on their sentencing.
The Arbery family isn’t budging. If federal prosecutors can’t guarantee that the McMichaels will remain in state prison, Merritt said, the family would rather the Justice Department drop the hate-crime charges altogether.