To Kill a Unicorn

In Rejecting a New Trial for the McMichaels, Judge Shows Himself No Atticus Finch

If nothing else, the State of Georgia keeps good statistics on its prison population. As a result we know that when sentenced to life without parole in 2022 for the February 2020 “murder” of Ahmaud Arbery, Greg McMichael, pictured above, was something of a unicorn. Of Georgia’s prison population, only 2 percent were sentenced to life without parole. Of those so sentenced, less than 1/2 percent were over 65, only 10 percent were married, and less than 5 percent were certified veterans.

As to Greg’s employment, there was not even a “retired” box for him to check, let alone a “retired LEO.” Nor was there a “grandpa” box. Greg’s son Travis also received a sentence of life without parole. He, too, was a veteran with law enforcement training, but his age at sentencing, 36, was closer to the norm. Neither of the men had any priors, and that has to be rare among lifers, but the state does not provide any useful statistics to show how rare.

The most relevant variable, the statistical category that doomed the McMichaels, was race. In rejecting the McMichaels’ motion for a new trial (CASE # CR-2000433), Judge Timothy Walmsley did not mention that the McMichaels were white or Arbery black, but no other combination would have led to a murder conviction, let alone a sentence of life without parole.

In defending his decision to sentence the McMichaels so harshly, Walmsley revealed how he loaded the case against them. Many of the case’s pivotal rulings were made at his “discretion”—a word that appears nine times in the document—and all such rulings disfavored the McMichaels.

Walmsley began with the seemingly neutral comment that the McMichaels “were indicted on June 24, 2020.” Had he been the sort of judge that liberals profess to love, the kind that protects the rights of the accused at all costs, Walmsley would have mentioned what happened on May 25, 2020.

That was the day George Floyd died in Minneapolis, the day that set the nation aflame. Leading the mobs were activists who promised “no peace” if there were “no justice.” The “justice” demanded was the kind of justice that mobs universally demand, which is no justice at all.

Similar mobs had inflamed Glynn County, Georgia, even before Floyd died. Arbery was the local proto-George Floyd, the McMichaels their Derek Chauvin. The judge admittedly had the “discretion to grant a new trial where the verdict is contrary to the evidence and the principles of justice and equity,” but Walmsley blinded himself to the storm outside of his courthouse.

The jurors were as intimidated by the mobs as he was. The principles of justice and equity were nullified even before the trial began. Not so, said Walmsley, “General awareness of public attention, media coverage, or community events—without more-does not establish juror bias.” He kids himself.

For Walmsley the “weight of the evidence” overwhelmed such concerns. As he saw things, “The State disproved beyond a reasonable doubt that the defendants were making a lawful citizen’s arrest or acting in self-defense.” To conclude this, Walmsley had to override the initial ruling by George Barnhill, the DA from a neighboring district originally assigned the case.

Concluded Barnhill in April 2020, “It is our conclusion there is insufficient probable cause to issue arrest warrants at this time….Myself and one of my Senior Trial Attorneys have reviewed the evidence extensively and concur on all points.” The evidence gained no “weight” after April 2020. Barnhill had reviewed the autopsy reports. He had seen the video recorded by neighbor, William Bryan, who would also be sentenced to life. The only extra “weight” came from Walmsley’s thumb on the scale.

The video captures the struggle for gun at front left of truck. Arbery rushed from the right.

To sentence a unicorn and his son to life without parole, in a case dismissed by the local DA, Walmsley had to press hard. His most conspicuous distortion involved the Bryan video. What it shows is clear to anyone who chooses to see.

The McMichaels stopped the truck at an intersection. Greg was standing in the truck bed calling police. Travis was standing at the front left of the truck with shotgun in hand. From an earlier encounter with Arbery, Travis had reason to believe he was armed.

Arbery jogged toward the back of the truck before veering to the truck’s right side. Instead of fleeing toward an open field on his right, he made an abrupt 90-degree left turn at the front of the truck and grabbed for Travis’s gun. All three shots were fired during the ensuing struggle. Greg shared the video with the police thinking it exculpatory.

That’s not how Walmsley saw things. Wrote the judge, “The video shows that as Arbery approached the McMichaels’ truck Travis moved to intercept him at the front corner of the vehicle, while pointing the shotgun at him.” No, Travis did not move to intercept Arbery. He remained at the front left.

Missing from the judge’s account was Arbery’s berserk charge at a man holding a shotgun. Travis pointed his shotgun only after Arbery rushed him. As Walmsley conceded, “The medical examiner and firearms examiner opined that the first shotgun blast was at contact or near-contact range.”

Arbery getting tased for an earlier misadventure

Had the jurors known something of Arbery’s past, they might have understood his recklessness, but that was not to be. “The defendants sought to introduce evidence of alleged prior acts by Arbery,” wrote Walmsley, but “its admission would have invited the jury to speculate about Arbery’s character.”

As to Arbery’s mental health, “the Court determined that no valid waiver existed permitting disclosure or use of the records in this proceeding.” Walmsley knew that Arbery had been treated for schizophrenia and that even his mother had called the police on him, but the jurors were not allowed to know this either.

The McMichaels hoped to have a use-of-force expert testify to the reasonableness of Travis’s action, but that was not to be. Although admitting that “a trial court has broad discretion in determining the admissibility of expert testimony,” Walmsley rejected that request, ruling that “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

No fools, the McMichaels knew what Arbery was doing in their neighborhood. They had no intention to hold him, let alone shoot him. They just wanted him gone. This is not profiling. This is pattern recognition. Scenes like this happen everyday in mixed-race America.

Operating out of guilt or fear or both, the South African-born Walmsley imagined himself Atticus Finch and the deranged Ahmaud Arbery his Tom Robinson. In To Kill a Mockingbird, Finch protects his mockingbird from the racist mob. In contemporary Georgia, Walmsley handed his unicorn over.