Judge will review motions made during Arbery case hearing

FILE - This combo of booking photos provided by the Glynn County, Ga., Detention Center, shows...
FILE - This combo of booking photos provided by the Glynn County, Ga., Detention Center, shows from left, Travis McMichael, his father Gregory McMichael, and William "Roddie" Bryan Jr. The Justice Department announced federal hate crime charges against the three men Wednesday, April 28,2021, in the death of Ahmaud Arbery, a Georgia man who was killed while out for a run last year.(Glynn County Detention Center via AP)
Updated: May. 13, 2021 at 3:56 PM EDT
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GLYNN COUNTY, Ga. (WTOC) - Day two of a motion hearing in the Ahmaud Arbery case ended Thursday.

The pre-trial hearing is for the state-level charges against the suspects.

The defendants - Travis McMichael, Gregory McMichael, and William “Roddie” Bryan - face murder, aggravated assault, and false imprisonment charges. Arbery was killed on Feb. 23, 2020. Three months after Arbery’s death, an attorney leaked the graphic video of Arbery’s killing. The video went viral and drew national attention.

All three suspects have pleaded not guilty in the state case and have said that they pursued Arbery because they thought he was a burglar.

Lawyers made several motions on day one about what evidence they believe should be presented at the trial. The defense attorney for Travis McMichael asked the judge to consider presenting evidence of Arbery’s mental health and previous run-ins with law enforcement. The claim was that Arbery had a pattern of theft or attempted burglary crimes.

The defense claimed that several incidents, several years ago, will speak to Arbery’s state of mind on the day he was killed.

The prosecution argued his state of mind was fight or flight because Bryan hit him with a car, and the McMichaels chased him with guns.

The defense’s argument is that Arbery’s mindset affected his actions the day he was killed and that Arbery’s behavior played a role in the McMichaels killing him. The defense is asking the judge to allow his mental health records to be shown to a jury.

The prosecution’s response is that his records are protected by law as private medical information.

“It’s not about the credibility of Ahmaud Arbery. It’s okay to recognize and celebrate who Ahmaud Arbery was in 2012, when he graduated high school. It is reckless to disregard the mental health illness that plagued him for eight years leading up to this moment, February 23, 2020,” Defense Attorney Jason Sheffield said.

The prosecution has said Arbery’s history has nothing to do with the men chasing him with guns. In the end, the judge said he’d review Arbery’s records under a seal before he decides if they can be used at trial. The defense also has 30 days to tell the court why it would be relevant in the case.

Another motion up for discussion involves the partnership between the FBI and Cobb County DA’s office, as the three men are being charged with federal hate crimes, a separate case from this Georgia state trial.

The McMichaels’ defense attorney is asking for the prosecution to hand over any evidence that might come from the federal case.

The prosecution says that is something that is out of their hands.

“Do we have authority over the FBI? Can we really come near the Department of Justice and the FBI, and say ‘Hand over your file.’ We cannot do that,” Assistant DA Larissa Ollivierre said.

For the first hour and a half of Thursday’s hearing, the defense and State focused on recorded jail calls of the McMichaels and William “Roddie” Bryan. The defense is asking the judge to not allow those jail calls to be presented as evidence to a jury at trial.

The defense laid out four arguments against the use of the jail calls.

Those arguments included that these calls violate their clients’ right to due process, saying the State plans to use the calls to incriminate the McMichaels and Bryan.

Defense also says it violates the clients’ expectation of privacy. However, the prosecution says there’s no expectation of privacy.

Prosecution referenced the defense’s own exhibit of the jail’s policy for phone calls, as well as a message that plays before each call made from the jail that says the call is being recorded.

Prosecution also came back with testimony given by the defense’s witness, who is the deputy that oversees jail calls. She testified that having access to a phone isn’t a right, it’s a privilege.

“We’re not required to give you access to telephones because you’re confined pre-trial. There is absolutely no right to talk on these telephones at jails. It’s a privilege and courtesy given to the defendants. Some defendants choose to use it while others choose to not talk on the telephone. Thus the jail calls should not be categorically excluded based on due process rights,” said Assistant DA Larissa Ollivierre.

The attorney for Bryan has made the argument for some time that his client was a witness to Arbery’s death and not a participant.

The lawyer argued that Bryan’s statements given to the GBI should not be allowed in court because Bryan thought he had witness status and would not face charges himself.

The prosecution questioned the GBI agent who interviewed Bryan and he said no promises were made.

The judge did not rule on that motion either. He plans to review that, along with several others, before deciding.

Jury selection for the state-level case will start on Oct. 18, 2021.

The three defendants made an appearance in federal court on Tuesday as they are now facing federal hate crimes charges. All three pleaded not guilty to the federal charges.

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