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Ahmaud Arbery shouldn't be called ‘victim’ in trial against Georgia father, son charged in his murder: defense

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The defense attorneys representing the father and son accused in the murder of Ahmaud Arbery in a Georgia subdivision last February have filed a series of motions to, in part, prevent prosecutors from referring to Arbery as a "victim" during the trial, as well as bar spectators from wearing Black Lives Matter messaging while in the courtroom.

Gregory McMichael and his son Travis, who are both White, have pleaded not guilty to felony malice murder in connection with the shooting death of 25-year-old Arbery, a Black man who was chased and shot dead on a residential street outside Brunswick, Ga., on Feb. 23, 2020.

"Use of the terms such a ‘victim’ allows the focus to shift to the accused rather than remain on the proof of every element of the crimes charged," the motion filed on Dec. 30 in Glynn County Superior Court states. "Working from the premise that the accused is innocent until proven guilty, it is the prosecution’s burden to prove beyond a reasonable doubt the essential elements of the crimes alleged."

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"Defendant does not concede that criminal conduct occurred in this case," the motion continued. "This burden of the prosecution should not be alleviated, minimized, or diminished by the use of loaded words which imply that prosecution has met its burden of proof that the crimes alleged have actually been committed."

In this image made from video, Gregory McMichael (left) and his son Travis McMichael, accused in the shooting death of Ahmaud Arbery (inset) in Georgia in Feb. 2020, listen via closed-circuit TV in the Glynn County Detention center in Brunswick, Ga., on Thursday, Nov. 12, as lawyers argue for bond to be set at the Glynn County courthouse. (AP Photo/Lewis Levine)

More than two months passed after Arbery's death before cellphone video of the shooting became public, and state investigators with the Georgia Bureau of Investigation arrested the McMichaels on murder charges after the agency began its own investigation in May.

Cellphone video shows Arbery trying to run around the McMichaels’ pickup truck before coming face-to-face with Travis McMichael, who is seen holding a shotgun. The video shows Arbery punching him and grappling for the gun in-between gunshots. Arbery staggers and falls after the third shot hits him at point-blank range.

In a separate motion filed on Dec. 30, the attorneys representing the McMichaels asked the court to allow state prosecutors to show just one photograph of Arbery "in life, depicted alone, and to be introduced by a nonrelated witness to avoid creating a cumulative prejudicial error in the trial of this case."

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A family member identifying the photograph would risk an "emotional outburst" during the trial that could impact the jury’s decision-making, according to the motion filed by attorneys Franklin J. Hogue, Laura D. Hogue, Robert G. Rubin and Jason B. Sheffield.

The McMichaels' defense team did not immediately return a Fox News request for comment Sunday. 

In their motion, defense attorneys representing the McMichaels referenced the widely circulated photograph showing Ahmaud Arbery in a suit and tie before his death in February 2020. 

The lawyers also asked the court to prevent spectators from attending the trial while wearing masks, T-shirts, or other insignia with messaging aligning with the Black Lives Matter movement. In a motion to "maintain safety and decorum" in the courtroom, the attorneys referenced the many spectators who attended preliminary hearings wearing clothing with the phrases "Black Lives Matter," "I Can’t Breathe," "Justice for George Floyd," "I Run With Maud," and "Justice for Ahmaud."

"It is the right of those supporters to wear whatever clothing they choose, to hold up any sign they wish, and to chant whatever slogan they like outside the courtroom. That is the beauty of our First Amendment. But once inside the courthouse, the sanctity of the defendants' right to a fair and impartial trial trumps the First Amendment," the motion states.

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It also argued that this case has wrongfully been swept up in the national media narrative in a number of recent examples of "racially motivated crimes by White men against Black men and women, such as George Floyd and Breonna Taylor, oftentimes acting in a law enforcement capacity."

According to their attorneys, Gregory and Travis McMichael were justified in pursuing Arbery in their pick-up truck through the neighborhood because they suspected he was a burglar and that Travis McMichael acted in self-defense during the altercation with Arbery.

Prosecutors argue Arbery was no criminal but merely out jogging and the McMichaels acted as illegal vigilantes. The video was taken by William "Roddie" Bryan, a neighbor who joined the chase and also was later charged with murder. Like the McMichaels, Bryan says he believes Arbery was responsible for break-ins in their neighborhood. It was later revealed that it was an open-framed house under construction that Arbery was seen entering, and an attorney for the owner later said nothing was stolen.

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Additional motions filed on the McMichaels’ behalf in late December requested that the court instruct prosecutors to hand over all records pertaining to "Arbery's disciplinary, criminal, and mental health records," as well as his social media account activity and telephone records. The defense also asked the court to exclude from evidence all recorded jail calls made by the McMichaels while they were held in the Glynn County Detention Center.

New body camera footage surfaced in December showing the arrival of police almost immediately after Arbery was shot in the coastal Georgia subdivision, finding the unarmed Black man lying facedown in his own blood while the man who shot him paced with hands on his head. Gregory McMichael had recently retired from a long career as an investigator for the local district attorney. At least two of the arriving officers recognized him and called to him by name, according to reports.

The Associated Press contributed to this report.

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