STEVE INSKEEP, HOST:
Defense lawyers have now made their case for three men on trial for killing Ahmaud Arbery. They say the Georgia man wanted to make a citizen's arrest and that the suspect who fired the fatal shot believed he was acting in self-defense. Prosecutor Linda Dunikoski asserts that something else was on the minds of the three white defendants.
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LINDA DUNIKOSKI: All three of these defendants made assumptions - made assumptions about what was going on that day. And they made their decision to attack Ahmaud Arbery in their driveways because he was a Black man running down the street.
INSKEEP: Let's discuss this case with Ayesha Bell Hardaway. She is a former prosecutor who now teaches law at Case Western Reserve University in Ohio. Welcome to the program.
AYESHA BELL HARDAWAY: Good morning. Thank you for having me.
INSKEEP: What evidence brings race into this?
HARDAWAY: Well, race has been talked about quite a bit throughout this trial. The description of the individuals suspected of being on the English property over the months leading up to the killing of Ahmaud Arbery - some were Black. There's notably a white couple with a bag seen on the property. And so the jurors have heard a few different times about the description of suspected individuals on the property.
INSKEEP: I guess we should remind people Arbery was supposedly looking at something on this vacant property where there was some construction going on, and that is why the defendants say they found him suspicious.
HARDAWAY: Yes, for sure. But the mention of race is detailed by both prosecution witnesses and defense witnesses throughout the trial. And so it would be naive for anyone, including prosecutor Dunikoski, to think that the jurors failed to pick up on the racial components present in this case.
INSKEEP: Is it tricky to bring it up explicitly because however much we know the history of race in America and know the race of the individuals, it's hard to prove in court what was in somebody's mind?
HARDAWAY: Sure. Absolutely. The lived experiences of this jury and the individual jurors is going to weigh heavily on how they hear and interpret the arguments made by all of the lawyers in the courtroom. The hope is that you know, prosecutor Dunikoski - I think her hope would be that she's read the jury accurately and that no one would be put off by by her assertion, you know, that this is essentially racial profiling that led to the cornering confrontation and killing of Mr. Arbery. But that remains to be seen.
INSKEEP: Oh, that's fascinating. So you might as a prosecutor or, for that matter, as a defense attorney be explicit about this or just let it sit there and be implied, depending on your best guess of what's in the minds of the jury members.
HARDAWAY: That's right. That's right.
INSKEEP: So let's talk about the defense here. Travis McMichael, the man who actually fired the shot, said he was acting out of self-defense. And here's his lawyer, Jason Sheffield. Let's listen.
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JASON SHEFFIELD: You are allowed to defend yourself. You are allowed to use force that is likely to cause death or serious bodily injury.
INSKEEP: If you believe it's necessary I have to note Kyle Rittenhouse in Wisconsin pleaded self-defense, and the jury agreed the other day. Are the circumstances significantly different here?
HARDAWAY: Sure, they're significantly different, simply as it relates to whether or not eating one was actually attempting to encounter the McMichaels or Roddy Bryan. I find it really interesting, Steve, the clip that you just played - if you listen to that, that defense lawyer skillfully paused and inserted his client's name into an incomplete description of the Georgia self-defense law. And if the jurors were only paying attention to that particular clip, which many, I think, hung on yesterday during closing arguments, they might walk away with a false impression of what Georgia self-defense law allows.
INSKEEP: Well, let's talk about that law specifically and also about race. This raises, I think, a thorny question. If you're a white person and you believe that you were in danger and acting in self-defense and part of the reason you believe you're in danger is because you're confronting a Black man, is that still a legitimate self-defense claim in Georgia?
HARDAWAY: Not to use deadly force. In order to use deadly force, you have to reasonably believe that it was necessary to prevent the same, meaning to prevent deadly force. It doesn't permit the use of deadly force when confronted with anything less than deadly force. So a bald and baseless fear of deadly force is insufficient to successfully assert the use of lethal force under Georgia state law.
INSKEEP: I believe prosecutors get to make a rebuttal today. In a sentence, what is the final point you'd make if you were prosecuting?
HARDAWAY: She needs to humanize Mr. Arbery. And she needs to make it clear that these defendants act in concert.
INSKEEP: Ayesha Bell Hardaway, professor at Case Western University, thanks so much. Really appreciate your insights.
HARDAWAY: Thank you for having me. Transcript provided by NPR, Copyright NPR.