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How a Plea Deal in the Arbery Hate Crime Case Unraveled – The New York Times

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Prosecutors thought they had come up with an ironclad deal to put Ahmaud Arbery’s killers away. But for his family, it wasn’t enough.
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Richard Fausset and
ATLANTA — Tara M. Lyons stood in a courtroom in Brunswick, Ga., this week with a dilemma no prosecutor wants.
She had a deal with two of the murderers of Ahmaud Arbery, who had agreed to 30-year sentences on federal hate crime charges. But Mr. Arbery’s family was firmly against it.
“I understand the anger, the pain and the struggle that the family is feeling with this resolution,” Ms. Lyons told the court. “I have no doubt if my son were chased down and shot like an animal because of the color of his skin, I would feel the same.”
But Ms. Lyons said that as a representative of the federal government, she had to leave her emotions at the door. She stood by the plea deal, which required the men to acknowledge that racism played a role in their actions when they chased Mr. Arbery down and shot him.
Judge Lisa Godbey Wood of U.S. District Court sided with the Arbery family and rejected the deal on Monday afternoon.
Open dissent between prosecutors and victims is rare in a federal case as high-profile as the Arbery murder. And it is even rarer for a judge to side with the victims. In their fight to gain a greater voice in the United States criminal justice system over the past four decades, victims have won the right to be consulted on plea negotiations — but not to veto them.
Joyce Vance, a former federal prosecutor whose father-in-law was murdered, said she understood when victims and prosecutors did not see eye to eye. She has never made peace with a plea deal that prosecutors made in her family’s case. “All I wanted was my father-in-law back,” she said. “You’re not thinking as a victim about what the justice system can accomplish and what works the best.”
The role of victims in criminal prosecutions varies from state to state. Some require that they be informed in advance of any plea deal, others that they be consulted. Many states allow victims to speak or submit written statements to the court, and a few require prosecutors to inform judges of the victims’ position on any proposed deal.
In federal cases, victims have a “reasonable right to confer” with prosecutors and the right to be informed of any deal. But prosecutors must weigh a host of other factors including the strength of their evidence, the interests of justice and ensuring that similar crimes be met with similar punishments. A plea deal can ensure that a defendant will suffer some consequences, even if a victim views them as too lenient, while a trial may result in a full acquittal. And, prosecutors do not represent victims.
“If you’re a federal prosecutor, your client is the United States,” said Michael J. Moore, an Atlanta lawyer who served as the U.S. attorney for middle Georgia from 2010 to 2015. “Those lines, when you have a victim of a crime, can become blurry. There’s the human side of you that’s very empathetic to the victim’s situation, and then there’s maybe the more academic side and professional side, and professional obligation, that has to guide your conduct.”
Sometimes victims are on the side of mercy. When Dylann Roof killed nine members of a predominantly Black church in Charleston, S.C., federal prosecutors successfully sought the death penalty despite the church’s opposition to capital punishment.
In the Arbery case, Travis McMichael, 36, his father, Gregory McMichael, 66, and a third man were charged with murder and convicted in state court. Federal prosecutors pursued other charges, including hate crime charges and attempted kidnapping. Georgia did not have a hate crime statute at the time of Mr. Arbery’s death.
Ms. Vance, the former prosecutor, said the deal that federal prosecutors struck in the Arbery case had been a good one. Hate crimes are difficult to prove at trial, she said. The deal ensured that the McMichaels would serve significant time even if their convictions in state court were overturned on appeal, and it barred them from appealing the federal case. “That was a conviction that would stand for all time,” she said.
In court, the Arbery family objected to the deal at least in part because it would have allowed the McMichaels to serve time in federal prison, which is generally regarded as having better, safer conditions than state prisons. This may be especially true in Georgia, where last fall the Justice Department began an investigation of state prisons, citing a high rate of murder and assault.
“I’m asking on the behalf of his family, on behalf of his memory and on behalf of fairness that you do not grant this plea in order to allow these men to transfer out of Georgia state custody into the federal prisons, where they prefer to be,” said Wanda Cooper-Jones, Mr. Arbery’s mother.
Yet defense lawyers like MiAngel Cody, based in Chicago and Miami, question the assumption that the federal system, which was placed on lockdown this week after a gang fight in a high-security unit in Texas, is an easier place to do time. “People think that it’s Club Fed,” Ms. Cody said. “Two people were violently murdered in Club Fed yesterday.”
In a phone interview on Tuesday, Marcus Arbery Sr., Ahmaud Arbery’s father, said he preferred for the men to face a jury of their peers for the federal charges.
“I’d like to see them go forward on the evidence,” he said.
In the court hearing in Georgia on Monday, Ms. Lyons said that the Arbery family and its lawyers had been consulted numerous times by prosecutors about the possibility of a plea deal.
In early January, a few days before the McMichaels were sentenced in state court, federal prosecutors took a proposed deal to the Arbery family, but eventually shelved it after listening to the family’s concerns, Ms. Lyons said.
But by Jan. 28, plea agreements had once again been hammered out between the McMichaels and prosecutors. Before those agreements were finalized, Ms. Lyons said, prosecutors consulted with lawyers for each of Mr. Arbery’s parents. The family’s lawyers told federal officials the parents “would not oppose a plea agreement,” Ms. Lyons said.
But Ms. Lyons said that in a number of video meetings with family members and their lawyers on Sunday — the day before the hearing — it became apparent that the family was not in favor of the deal.
“I’m not up here blaming the family, your honor,” she said, adding that she had “personally struggled” over the right thing to do.
Still, she said it was her job to make “sound decisions” in the interest of justice. She asked the judge to accept the plea deal. Among other things, she argued that it would guarantee prison time for the McMichaels if the state convictions were thrown out on appeal, and noted that the men would admit they were motivated by racial bias.
The shooting. On Feb. 23, 2020, Ahmaud Arbery, a 25-year-old Black man, was shot and killed after being chased by three white men while jogging near his home on the outskirts of Brunswick, Ga. The slaying of Mr. Arbery was captured in a graphic video that was widely viewed by the public.
The victim. Mr. Arbery was a former high school football standout and an avid jogger. At the time of his death, he was living with his mother outside the small coastal city in Southern Georgia.
The fallout. The release of the video of the shooting sparked nationwide protests and prompted Georgia lawmakers to make significant changes to the state’s criminal law, including passage of the state’s first hate crimes statute.
The suspects. Three white men — Gregory McMichael, his son, Travis McMichael, and their neighbor William Bryan — stood accused of murdering Mr. Arbery. They told authorities they suspected Mr. Arbery of committing a series of break-ins.
The verdict. On Nov. 24, 2021, a jury found the three defendants guilty of murder and other charges. The men were sentenced to life in prison, with only one eligible for parole.
The hate crimes trial. Prosecutors in a subsequent federal trial of the three men argued that the murder of Mr. Arbery had been motivated by racism. Jurors in the case found the defendants guilty of hate crimes on Feb. 22.
Judge Wood did not explicitly say she was rejecting the plea deal because of the family’s objections, and experts said she might have had other reasons.
In rejecting the plea agreement, Judge Wood noted that it was a type of plea that would not have allowed her to alter the proposed sentence of 360 months in prison. “I can’t say that 360 months is the precise one fair sentence in this case,” she said.
In federal court, a vast majority of plea deals leave sentencing up to the judge. Prosecutors may agree to recommend a sentence on the lower end of the range prescribed by federal sentencing guidelines or agree to drop some charges, and defendants may receive points in their favor for accepting responsibility for their actions. But the judge metes out the sentence.
The deal presented in the Arbery case would have deprived the judge of that discretion. Judge Wood had to accept the deal as agreed, or reject it.
Carissa Byrne Hessick, the author of “Punishment Without Trial: Why Plea Bargaining Is a Bad Deal,” said judges should question plea deals more often. More than 97 percent of criminal convictions are resolved through plea deals, many of which are rubber-stamped by the courts, she said.
“The fact that this is getting so much attention for the rejection of the plea deal — that just goes to show how much judges have abdicated their sentencing power,” she said.
Mr. Moore, the former federal prosecutor from Georgia, said that a number of families disagreed with plea agreements he had reached with defendants during his time in office. “But once you have some time to discuss it and explain it, most of the time families came around and understood,” he said.
He said he never had to deal with a situation like the one Ms. Lyons faced, in which a family objected to a plea deal in open court — and a judge sided with the family.
The McMichaels are scheduled to appear before Judge Wood again on Friday morning and tell her whether they want to plead guilty in the absence of a deal or declare themselves innocent and take their chances at trial.
Jury selection will begin Monday in the trial, in which the McMichaels — if they decide to go forward — will defend themselves alongside William Bryan, 52, who, like the other men, was sentenced to life in prison by a Georgia judge for Mr. Arbery’s murder.
Some experts said this week’s hearing, which made clear that the McMichaels were willing to admit they had been motivated by racism, could make it difficult to choose an impartial jury.
In the end, victims may struggle because the remedy they want most is outside the power of the courts to give, said Ms. Vance, the former prosecutor.
“Nothing is going to bring Ahmaud back,” she said.
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