The recent verdict in the killing of Ahmaud Arbery stands in stark contrast with the fallout from the death of Trayvon Martin in 2012. George Zimmerman, the man who killed Martin in Florida, was acquitted of all charges. This week, three Georgia men — Travis McMichael, Gregory McMichael and William “Roddie” Bryan — were found guilty of murdering Arbery.
Arbery’s and Martin’s deaths were eerily similar: Armed men pursuing and fatally shooting young, unarmed Black males — Arbery, 25, and Martin, 17. So, what explains the difference in outcome?
While there are many factors one could point to, a key difference has to do with the degree to which race was highlighted in each trial. Jurors subconsciously tend to favor white over Black defendants. But pointing out how race factors into a case — as the prosecutor did in the Arbery case, albeit subtly — can help to correct for that bias and result in fairer verdicts.
The similarities between the two cases aren’t hard to see. Both involved defendants who assumed the Black male victim was involved in criminal activity — burglary, to be specific. In both cases, the defendants who opened fire claimed to be acting in self-defense, and the men responsible for the killings were not immediately arrested or charged.
When it came to the trials, in both cases, the defense tried to capitalize on racial stereotypes to advance their positions. The defense in the Zimmerman case, for example, called on a white woman living in the neighborhood to testify about having her house burglarized by a Black man. The woman said she was scared to death, hiding upstairs, while the Black man was downstairs ransacking her belongings. The burglar wasn’t Trayvon Martin; the only thing the two had in common was that they were both Black males. By calling this witness, the defense seemingly sought to convey to the jury that it was reasonable for Zimmerman to believe Martin, a Black male he didn’t recognize, was up to no good.
In the Arbery case, Travis McMichael invoked the angry Black man stereotype on the stand, testifying that when he first pulled up alongside Arbery in a pickup truck, he noticed Arbery’s demeanor: “He looks very angry.” When asked by his attorney to describe what he meant, McMichael responded, “Mad. It’s clenched teeth. Closed brow. He was mad.” He proceeded to testify that Arbery grabbed his shotgun, and he shot Arbery because he was afraid that Arbery would use his gun against him. Studies have shown that people tend to see ambiguously hostile behavior by a Black man as dangerous, violent and threatening, while seeing the same behavior by a white man as simply playing around. On cross-examination, McMichael admitted that when he was asked by the police whether Arbery had grabbed his shotgun, he told them, “I want to say that he did, but I honestly can’t remember.”
In closing arguments, Laura Hogue, an attorney for Gregory McMichael, went much further, suggesting that Arbery came into the neighborhood where he was shot and killed to engage in criminal activity, and invoking an ugly stereotype. Hogue drew gasps from within the courtroom and harsh criticism from legal observers when she said, “Turning Ahmaud Arbery into a victim after the choices he made does not reflect the reality of what brought Ahmaud Arbery to Satilla Shores in khaki shorts, with no socks to cover his long dirty toenails.”
Despite these similar defense tactics, race operated differently in the two trials in other ways. Most notably, there was a greater nationwide focus on the role that implicit racial bias likely played in Arbery’s killing both before and during the trial — perhaps ultimately contributing to the guilty verdicts.
Decades of social science research indicates that when race is not highlighted in a trial, jurors tend to be more punitive against Black defendants and more forgiving of white defendants even when all other facts are equal. When race — and the possibility of racial bias — is highlighted, however, whether by the attorneys, a witness or the judge, jurors tend to treat Black and white defendants more equally. In a homicide case involving a white defendant who claims self-defense against a Black victim, race needs to be made salient, so the jury does not subconsciously favor the white defendant over the Black victim.
Even though the failure to arrest Zimmerman unleashed an outcry about race and the criminal justice system, there was little focus on race at his trial. The presiding judge made clear that she wanted to run a colorblind trial, ruling early on that the prosecution could use the term “profiling” but not “racial profiling” when describing Zimmerman’s acts. The prosecution acquiesced and avoided references to race during the trial. Indeed, during rebuttal closing argument, prosecutor John Guy told the jury, “Race. This case is not about race. It’s about right and wrong.” After the trial was over, Angela Corey, the lead prosecutor on the case, told the press, “This case has never been about race.”
In contrast, the racial dynamics in the Arbery case were readily apparent both inside and outside the courtroom. The judge, Timothy Walmsley, seemed sensitive to these dynamics. For instance, Walmsley expressed concern when the defense struck numerous Black people from the jury, leaving only one Black juror; ultimately, though, the judge said he felt he had to accept the ostensibly race-neutral reasons for the strikes. The judge likewise denied a defense attorney’s request that he prohibit Black pastors from attending the trial.
Prior to the announcement of the verdicts, some legal analysts criticized prosecutor Linda Dunikoski for not doing more to highlight race. But Dunikoski had to be careful, given the current state of polarization around race in America. She was trying the case in the South and didn’t know whether the white people on her jury might take offense if she emphasized the racial bias that likely caused the defendants to see Arbery as a criminal and a threat to their safety. She needed to make the jury understand the racial dynamics of the case without making any of the 11 white jurors feel she was accusing them of being racist.
And she did that very skillfully.
In her opening statement, Dunikoski told the jury, “We are here because of assumptions and driveway decisions. All three of these defendants did everything they did based on assumptions.” While she didn’t say the defendants relied on racial assumptions, given America’s racial reckoning over the past year and a half, it wouldn’t take a rocket scientist to connect the dots. She also humanized Arbery and didn’t try to hide the fact that he was Black, showing jurors a photo of him and telling them he was a “brother, uncle and an avid runner.” Dunikoski also used the defendants’ own statements to the police to show that they saw Arbery’s race as a threat, telling the jury that when one of the defendants called 911 and was asked, “What’s your emergency?” he responded, “There’s a Black male running down the street.”
In her closing statement, Dunikoski was more explicit, telling the jury that the defendants “made assumptions because Ahmaud Arbery was a Black man, jogging down that street.” The cold transcript of this moment doesn’t fully capture its impact. Dunikoski paused after she said the words “Black man,” so the jury initially heard: “They made assumptions because Ahmaud Arbery was a Black man.” The implication was that the defendants jumped to conclusions about Arbery and thought he had just committed a crime because of his race.
Dunikowski likely was aided by the fact that nationwide protests over the death of George Floyd in 2020 put a spotlight on implicit racial bias and how that bias can lead to fatal outcomes. The jurors were reminded of this reality thanks to the presence of members of Arbery’s family and the Black community in the courtroom every day.
We don’t know exactly why the jurors in the Arbery case made the decision they did, but if there is a lesson to be drawn from the verdict, perhaps it is this: Sometimes to achieve racial justice, we need to remind people that race matters.
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