The prosecution can use recorded jailhouse conversations in the upcoming trial of the three men who face murder charges in the killing of a 25-year-old Black man last year, a judge ruled Friday.
Trial begins Monday with jury selection at the Glynn County Courthouse for Travis McMichael, 35, Gregory McMichael, 65, and William Bryan, 52, the three defendants accused of murder and other charges in the shooting death of Ahmaud Arbery on Feb. 23, 2020.
All three men, who are White, have been held without bond in the Glynn County Detention Center since their arrests by the Georgia Bureau of Investigation in May 2020.
Travis McMichael shot the unarmed Arbery three times at close range with a 12-guage shotgun on a public street in the Satilla Shores neighborhood during a struggle for McMichael’s gun. The confrontation ended a pursuit of several minutes in which the McMichaels and Bryan chased Arbery in pickup trucks as he ran through the neighborhood.
During a hearing in May, defense attorneys asked Eastern District Circuit Judge Timothy Walmsley to exclude from trial phone conversations between the defendants and persons outside of jail. Attorneys argued the recorded conversations amounted to a violation of their clients’ due process rights against self-incrimination. Attorneys further argued that the defendants were not afforded the same opportunity for private counsel allotted to a murder defendant who was allowed to post bond.
As stated during the hearing in May, a “Jail Handbook” states that all calls are recorded and can be used in court, Walmsey noted. Additionally, a prerecorded message on all outgoing calls from the jail informs inmates that the conversations are being recorded.
Knowing this, Walmsley ruled, the defendants freely chose to make calls from jail. The conversations were not manipulated or coerced by outside parties in any way, he said.
“Nevertheless, the defendants voluntarily chose to use the telephone, chose with whom to speak, chose which topics to discuss, and made statements at their own choosing,” Wamsley wrote “ … There is no evidence that a government agent calculatingly prompted incriminating statements from defendants while they were talking on the phone.”
The judge’s decision is among a flurry of recent court filings as the trial approaches.
Although the judge ruled last month that Arbery’s police record and mental health record cannot be used in court, defense attorneys still seek to tell jurors about the victim’s probation status and present autopsy results that may indicate a lack of treatment for mental health issues, according to motions filed Monday.
The filing came in response to the prosecution’s request last week that the judge deny use of Arbery’s probation status as well as the blood test, which indicates a presence of marijuana.
Prosecutors with the Cobb County District Attorney’s Office argued that Arbery’s probation status is irrelevant since the defendants were unaware of it. Prosecutors also argued that the blood tests showing the presence of marijuana in Arbery’s blood system also were irrelevant because there is no way to determine whether it had any bearing on the incident.
Defense attorneys argued Monday that Arbery’s probation status is “intrinsic” to their claim of self-defense in the course of a citizen’s arrest, saying it is relevant because Arbery may have been in fear of violating probation.
Defense attorneys said the blood test could show the absence of a medication used to treat mental illness, one that Arbery may have needed.
The judge has not ruled on these two issues.