I'm going to respond to a number of comments, to try to explain what appears to have happened from a legal, law-enforcement perspective. And I have to start with this one.We are all at a disadvantage here because cases like this are very emotional, so we tend to respond to them emotionally. Fortunately, the law is not so emotional and there are very serious constraints on emotions in the law.
NOT ONE PERSON who has posted here is advocating in favor of the two men who killed Mr. Arbery. Nobody.
My concern in cases like this, as a retired police officer with homicide investigation experience, is that the police and prosecutors not mess up the case -- and that is easier to do than you think.
Also, when people ask,
"How could they claim self-defense?" I try to explain their legal strategies. I've seen that movie before and I know how it goes.
I'm not agreeing with them. I'm just saying that is the
only defense available to them.
As ordinary citizens we don't have the legal authority to drive through our town executing people. If we get into a situation where we kill someone, the only defense we can offer is self-defense. There is no other excuse for killing someone for ordinary citizens.
So understand that people here are not taking sides with the killers. We're just trying to explain some aspects of the case.
One small, but important part of that statement is correct. The father had worked as an investigator (whatever than means under GA law) for the local prosecutor up until about one year ago. Because of that employer-employee relationship, the local prosecutor was conflicted out and very properly recused herself.
The case was then assigned to a prosecutor from another jurisdiction who decided not to prosecute the father and son.
Controversy ensued of course, so a third prosecutor was asked to review the case. He also decided not to arrest the two men, but said he would take the case to a grand jury.
In a few circumstances, a grand jury indictment is required. In Florida, for example, prosecutors must get a grand jury indictment to seek the death penalty. But when a prosecutor opts to refer a case to a grand jury
when it is not required, that prosecutor is just using the grand jury to cover his behind.
The reason why we didn't hear about the case in February was that the controversy did not bubble up in the new media sufficiently with all the covid-19 drama. For 3 separate prosecutors to look at a case in two months is actually pretty quick.
Subsequently, of course, the Governor of GA asked the Georgia Bureau of Investigation to review the case.
They did (undoubtedly together with top prosecutors), found sufficient probable cause, and arrested the two men for Murder and Aggravated Assault yesterday
Sam has stated the main aspects of this case very succinctly here.
The other thing for all of us to realize here is that
we have less than 1% of the facts of the case that law enforcement has. We have two news stories -- large parts of which are cut and paste from each other -- and a very short video showing parts of the end of the confrontation in very poor quality.
But the police know, for example,
how many shots were actually fired,
by whom, and almost certainly
when, and
in what order. They know how many times Mr. Arbery was hit, where, and to what effect. They know, within an inch or two, how far Mr. Arbery was from the muzzle of the guns when they were fired. That information is critical, and it is that information that GBI relied heavily on in charging the two men with murder.
Poor videos, defendants' stories, eye witness testimony, news reports, etc are not compelling in a murder investigation. In fact, they are often not even admissible in court. Physical evidence matters, and GBI has that evidence.
The defendants are going to claim self defense. But for self defense, several things are required.
- First and foremost, you must have been acting legally. If you were acting illegally, you can't claim self defense.
- Second, you must reasonably believe that you are in danger of death or serious bodily harm. Somebody cussing you out or running away from you is not a predicate for self defense -- you have to be in physical danger.
- And third, the amount of force you use must be reasonable. If you are legitimately in severe danger, deadly force is permissible...but that's not a given.
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