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Defendant Testifies in Arbery Case

Attorney Page Pate, a criminal defense attorney who is also recognized as a legal analyst, continues to follow the trial of the 3 men accused of murdering Ahmaud Arbery in Brunswick, Georgia in 2020. Page has been contacted by numerous media outlets to discuss the case and the trial, which is taking place in Glynn County, Georgia.

Here, CNN and Page discuss the trial testimony of Travis McMichael, the man who shot Mr. Arbery. Page is asked how Mr. McMichael’s self-defense claim may be impacted by the fact that he had the gun and went after Mr. Arbery first. Page explains that “it’s going to be difficult to prove that self-defense is an appropriate defense here. I think it’s gonna be difficult to prove that they had a legal justification for citizen’s arrest.” Page also comments on Mr. McMichael’s testimony overall and how the prosecutor handled it, saying that he thinks Travis McMichael “did a very good job on the witness stand. I think he was well-prepared, I think this was well-rehearsed, and I think he caught the prosecutor flat-footed. I do not think she was expecting him to take the stand, and I think her initial cross-examination was weak. It was unfocused. She has got to come back this morning and focus in on the key points. Your training and experience? What training and experience? Did you really have a reason to believe that Ahmaud Arbery had committed a felony offense? She has got to be aggressive. Otherwise, this jury’s gonna be left with the impression that this was a reasonable person doing something to protect the neighborhood, because right now, given the makeup of this jury, I think that’s what they believe. So she has a huge challenge ahead of her today.”

Page is also asked about the State of Georgia’s Citizen’s Arrest Law, which was in force at the time of Mr. Arbery’s murder but has since been repealed, and whether it changes the standard when the jury considers self-defense in this case. Page tells CNN that “The citizen’s arrest law never talked about deadly force one way or the other.” He explains that the Citizen’s Arrest Law was “a two-step process” and says that “If Travis McMichael and Greg McMichael had a legitimate legal reason to pursue Ahmaud Arbery, if they were conducting a legitimate citizen’s arrest, in other words, if they either saw him commit a crime, or had direct knowledge that he committed a felony, then they could pursue him and detain him. And if they were legally doing that, and there was a struggle, and Travis McMichael felt himself in imminent danger of being killed by Ahmaud Arbery, then yes, he could use self-defense. But those are two huge obstacles that the defense will have to convince the jury, that they were legally authorized to take.”

Regarding these two obstacles, CNN asks Page why he thinks it would be such a huge obstacle to say that the Defendants were in fact making a citizen’s arrest. Page explains that “if the judge instructs the jury at the end of the trial, like I expect him to, that a citizen’s arrest is not legal unless you actually see the person commit a crime, or you know that this was a felony offense… So, it’s kind of a two-part analysis as well. And there is insufficient evidence right now. I mean, we’ve seen the videos, we’ve seen surveillance, we’ve heard from neighbors. He was hanging around this house under construction, but no one accuses him of committing a crime. So even if they saw him that day in the house, they didn’t have a legal basis to pursue him for citizen’s arrest.”

TRANSCRIPT:

Erica: Also with us now, criminal defense attorney Page Pate. Page, good to have you back with us this morning. We heard a little bit from Martin about what we heard on the stand yesterday. Travis McMichael, as we know, says he was acting in self defense. I want to play a little bit more of one of the exchanges.

Travis: I didn’t know where I was at, but I knew that he was on me. I knew that I was losing this. I knew that if I was getting tripped, if I would have tripped, or if he would have got a lucky strike on my head, or if I would have have lost that grip on that shotgun, that I would have been shot or I would have been in serious trouble at that point. I knew that he was overpowering me. But I didn’t know which direction or what mechanics he was doing to overpower me.

Erica: So, Page, Ahmaud Arbery isn’t alive to tell us how he felt in that moment or the moments leading up to it, but we do know is he didn’t start this encounter. So, when we look at the facts here, the fact that Travis McMichael went after Arbery first, and had that gun, how does that impact a self defense claim?

Page: Erica, I think it’s going to be difficult to prove that self defense is an appropriate defense here. I think it’s gonna be difficult to prove that they had a legal justification for citizen’s arrest. But I think Travis McMichael did a very good job on the witness stand. I think he was well-prepared, I think this was well-rehearsed, and I think he caught the prosecutor flat-footed. I do not think she was expecting him to take the stand, and I think her initial cross-examination was weak. It was unfocused. She has got to come back this morning and focus in on the key points. Your training and experience? What training and experience? Did you really have a reason to believe that Ahmaud Arbery had committed a felony offense? She has got to be aggressive. Otherwise, this jury’s gonna be left with the impression that this was a reasonable person doing something to protect the neighborhood, because right now, given the makeup of this jury, I think that’s what they believe. So she has a huge challenge ahead of her today.

Jim: Remarkable analysis. Central to this, of course, is the question of the legal standard for self defense. And I wonder, does Georgia’s citizen’s arrest law, which has since been largely repealed, but was the law of the land at the time, does it change the standard as jurors approach this question of self defense?

Page: I mean, that’s a great question, Jim. The citizen’s arrest law never talked about deadly force one way or the other. But it is a two-step process. If Travis McMichael and Greg McMichael had a legitimate legal reason to pursue Ahmaud Arbery, if they were conducting a legitimate citizen’s arrest, in other words, if they either saw him commit a crime, or had direct knowledge that he committed a felony, then they could pursue him and detain him. And if they were legally doing that, and there was a struggle, and Travis McMichael felt himself in imminent danger of being killed by Ahmaud Arbery, then yes, he could use self defense. But those are two huge obstacles that the defense will have to convince the jury, that they were legally authorized to take.

Erica: And just weigh in on that, if you could, dig a little deeper on that point for us. In terms of that being a huge obstacle, why in this case do you think it is such a huge obstacle for them to say, “Yes, we were…this was legitimately a citizen’s arrest?”

Page: Because if the judge instructs the jury at the end of the trial, like I expect him to, that a citizen’s arrest is not legal unless you actually see the person commit a crime, or you know that this was a felony offense… So, it’s kind of a two-part analysis as well. And there is insufficient evidence right now. I mean, we’ve seen the videos, we’ve seen surveillance, we’ve heard from neighbors. He was hanging around this house under construction, but no one accuses him of committing a crime. So even if they saw him that day in the house, they didn’t have a legal basis to pursue him for citizen’s arrest.

Jim: The question of probable cause there. Page Pate, great to have you on. Appreciate you sharing your experience.

Page: Thank you.