“No good deed goes unpunished.”
This comment was made from behind bars by one of the men charged with murder in the Feb. 23, 2020, killing of Ahmaud Arbery, but it should not be heard by a jury when the case goes to trial, a defense lawyer argued Thursday in Glynn County Superior Court during a second day of pretrial hearings.
Defense attorneys for the three men charged in Arbery’s shooting death argued that it is unconstitutional for the prosecution to use recorded jailhouse phone conversations against them in court.
The admissibility of such evidence was among many issues addressed during two days of hearings for the upcoming trial of Travis McMichael, 35, his father, Gregory McMichael, 65, and neighbor William “Roddie” Bryan. The three are charged with felony murder, malice murder, false imprisonment and aggravated assault in the death of Arbery, 25, who was shot dead by Travis McMichael on a public street in the Satilla Shores. Bryan videotaped the fatal end of the conflict, in which Travis McMichael shot the unarmed Arbery three times at close range with buckshot from a .12 gauge as the two struggled for possession of McMichael’s shotgun on Holmes Road.
Jury selection for the trial begins Oct. 18.
Prosecuting attorneys with the Cobb County District Attorney’s Office likely will present recorded phone conversations made by one or more of the defendants to the jury.
Macon attorney Frank Logue said it is unconstitutional to offer inmates use of a telephone if their recorded phone conversations are then used against them in court.
“We do not contest at all the right to record and monitor all jail calls,” Logue said. “What is at issue is when law enforcement requests those jail calls. That’s where the defense objects.”
Logue and attorney Laura Logue represent Gregory McMichael, the man who made the “good deed” statement during a phone conversation from inside the county jail.
Logue said the prosecution will try to convince the jury that Gregory McMichael was referring to Arbery’s death.
“What he meant by ‘good deed’ was patrolling his neighborhood and trying to protect it,” Logue said.
Logue said the use of recorded phone conversations from jail violates 14th amendment rights to due process and equal protection under the law. He added that some murder defendants are released on bond and therefore able to speak freely, leaving those held without bond at a comparative disadvantage.
“My argument is, no matter what’s on that phone call, you can’t use it,” Logue said. “The content doesn’t really matter. As long as the state plans to use it, then I object.”
Prosecuting attorney Marissa Ollivierre said inmates are not entitled to private phone calls with people on the outside. She noted that Glynn County inmates are given ample forewarning that their conversations may be monitored or recorded. It appears in a prerecording on the phones that are placed in each cell pod and it is also written in the inmates’ handbook.
“We would argue that an inmate has no right or expectation of privacy, period,” said Olliveirre, an attorney with the Cobb County District Attorney’s Office. “There is absolutely no right to talk on the phone while you’re in jail.”
As for the defendants being held in jail awaiting trail, where they’ve been since their arrest last year, a judge denied bond because they were deemed a risk, she said.
“We don’t believe an equal protection case has been made,” she said.
Inmates can have private phone conversations from the jail with their attorneys provided the jail staff is informed in advance, Glynn County Sheriff’s deputy Stephanie Britt testified. Numerous state and federal agencies have requested recorded conversations of all three defendants, she said.
Phone privileges can be pulled for disciplinary reasons, she said.
Judge Timothy Walmsley said the defense’s argument should be narrowed to specific calls that raise concerns. The defense is expected to provide the judge with lists.
Walmsley’s decision will come at a later date.
The hearing’s participants argued for a second day whether Arbery’s mental health records should be admissible in court. Walmsley cautioned that the use of such records in court could set a precedent, making public record of a person’s personal health issues.
The defense said that Gateway Behavioral Health Services diagnosed Arbery with a mental illness in 2017. A nurse made the initial diagnosis, typing Arbery’s answers to questions from an assessment sheet into a computer, the nurse testified Wednesday. The diagnosis was later verified by a nurse practitioner.
The defense also seeks to present Arbery’s past run-ins with the law, saying the cases will support Gateway’s diagnosis.
Four law enforcement officers took the stand Wednesday, testifying to encounters in which they said Arbery reacted with loud profanity and aggression. He was arrested in two of those. Police body cam video is available in three instances.
A fifth law enforcement officer took the stand Thursday and testified to an incident at an abandoned trailer in rural Burke County that was within eyesight of Arbery’s grandmother’s house. A deputy with the Burke County Sheriff’s office testified that he approached an empty trailer on a lot on Oct. 23, 2018, after hearing laughing and smelling pot.
He said Arbery and several others ran from the trailer. He said Arbery was combative and loud when apprehended. He was cuffed without incident, but remained “argumentative” from the back seat. He later pled guilty to misdemeanor obstruction of the law, the deputy testified.
Decatur attorney Jason Sheffield said Arbery’s run-ins with the law will show a pattern of behavior consistent with the diagnosis. He said it could give jurors an understanding of what Travis McMichael faced “to make a decision how to defend himself that day.”
“These are just his days over the course of three years, which shows a very sad decline,” said Sheffield, who represents Travis McMichael along with attorney Robert Rubin.
Assistant Cobb DA Linda Dunikoski wants Arbery’s health records and his past law enforcement interactions deemed inadmissible in court. She said Arbery’s state of mind played no role in the actions of the three men who chased him to his death that day.
Further, she said, such information plays no role in supporting the defense’s premise.
“The issue is citizen’s arrest and their claim of self defense,” Dunikoski said. “They claim self defense against a man they did not know, against a man running down the street. It is not critical to their defense.”
The incidents presented by law enforcement are not accurate depictions of Arbery on a normal day, Dunikoski said, noting that he was under stress from the encounters. She called potential witnesses for the defense a “raggedy patchwork of sources.”
Walmsley said he wants the defense to prove the relevance of the health records to their case. He requested that the defense presents briefs on the matter showing why they think it is relevant.
The information is due in 20 days. It will be presented under seal so that the judge can review it without it becoming public record before he makes a decision.
The three men have been held without bond in the Glynn County Detention Center since their arrests last year.