The federal hate crime convictions of Travis McMichael, Greg McMichael and William "Roddie" Bryan for the murder of Ahmaud Arbery offer a crucial lesson for prosecutors and police: Don't be afraid of charging, prosecuting and trying hate crime cases. All of us should applaud the successful prosecution of these three racist murderers, but at the same time, we must challenge the assumptions that this case was extraordinarily difficult to win and only cases with overwhelming evidence of racially motivated violence deserve to be charged and prosecuted as hate crimes.
Before the verdict, we heard many legal experts wringing their hands over how an acquittal might harm future hate crime prosecutions and how hard these cases are to win. My own experience as a former federal prosecutor in the District of Columbia comported with these views. In my 11 years of prosecuting cases, I did not bring a single hate crime charge. In fact, I was once dissuaded, by a well-respected supervisor, from bringing a hate crime charge in an assault. My supervisor explained that hate crimes cases were hard to win, and it would be better to stick with the straightforward assault charge than have to venture into the murky question of whether the defendant was motivated by racial animus. Looking back, I see the fallacy of this point of view.
Prosecutors have to prove motive and intent every day in nearly every type of criminal case, yet there is something about proving racially motivated intent that scares them off.
Let's start by debunking the idea that hate crime cases are super hard to win. In fact, statistics collected by the Justice Department's Bureau of Justice Statistics say just the opposite. The numbers collected by the bureau show that from 2015 to 2019, the conviction rate for hate crimes was 94 percent. This increased from the 83 percent conviction rate from 2005 to 2009. While the conviction rate is high, the number of cases declined is an alarmingly high 82 percent, with the most common reason being "insufficient evidence." Still, an 83 percent to 94 percent conviction rate undercuts the idea that hate crimes cases are hard to win. By comparison, the government's win percentage on appeals is about 91 percent — and appeals are considered stacked in favor of the prosecution. As a trial lawyer, I like those odds.
So why do prosecutors shy away from hate crimes cases? Other than believing that proving a racist intent motivated the crime is particularly difficult, some legal experts believe it's due to unconscious bias carried forward in systemically racist institutions. But prosecutors have to prove motive and intent every day in nearly every type of criminal case, yet there is something about proving racially motivated intent that scares them off.
In the Arbery murder cases, mountains of digital evidence about the abhorrent racist beliefs and attitudes of the defendants existed, but the state prosecutors' strategy was to avoid bringing race into it. In the federal trial, that evidence was well-mined. However, legal experts still warned that merely showing that the defendants were racist was not enough because sufficient nexus might have been lacking between those racist attitudes and them hunting down and murdering Arbery.
Indeed, over the vehement objections of the Arbery family, the federal prosecutors from the Department of Justice's storied civil rights section tried to offer the killers a plea deal rather than try it.
To be fair, prosecutors are risk-averse and always prefer the guarantee of a guilty plea rather than leaving a conviction to the vagaries of a jury. But in this case, the federal prosecutors already had the safety net of the state murder convictions if they lost the federal case.
Don't get me wrong — there are legitimate reasons to prefer guilty pleas. For example, the federal prosecutors may have been concerned about the effect on the Arbery family if the case was lost. Perhaps they thought that justice for Arbery and his family would be better served by the certainty of a guilty plea with less punishment than a possible loss at trial. But prosecutors need to be mindful of letting such rationales overly influence their decision-making.
When I was counsel to Attorney General Janet Reno, I once briefed her on a high-priority federal case in which a United States attorney was asking for approval on a plea deal. Reno had been a state prosecutor before becoming attorney general, so I expected that she might prefer the security of a plea deal over a trial. Instead, when I presented the plea deal to her, she rejected it, telling me: "It's a strong case. Why would I do that?" She was right. Some cases need to be tried. The Arbery murder and other hate crime cases are such cases, and my answer to the worries of prosecutors about how hard the cases may be is the old adage that "practice makes perfect." The more hate crime cases that are brought, the more the body of expertise and experience about how best to prosecute them will grow.
Following the guilty verdicts in the federal trial, Arbery's mother, Wanda Cooper-Jones, thanked the Justice Department for bringing the case but also criticized it for trying to plead the case out against her family's wishes. "What the DOJ did today, they were made to do today. It wasn't because of what they wanted to do. They were made to do their job today," she said.
The words of Arbery's mother should resonate with all prosecutors. The prosecution and trying of hate crime cases must become a commonplace part of a prosecutor's job rather than an extraordinary event. For only when it becomes commonplace to stamp out and punish racist violence can we truly hope to end it.