Tag Archives: Court

Defense Strategy: Gough

15 November 2021

The State today called a witness from the State Crime Lab who testified to finding tee shirt fibers on the truck of William Bryan.  When the state asked about the ease with which fibers can be transferred from one surface to the other, Defense attorney Gough objected. 

Gough, in his usual, “let’s try to make a big deal out of nothing” strategy (to legal argument as well as life, it seems) tried to say that there was a “casym” of difference between what she testified to and what she wrote in her report.

She wrote in her report that she couldn’t exclude the possibility that the fibers were from Arbery’s tee shirt.  She said in court that could not definitely say that these fibers were from Ahmaud Arbery’s tee shirt.

When Gough implied that he had uncovered the “Perry Mason” discrepancy in testimony, the technician replied that the two statements were not mutually exclusive.  I really hope the jury is not hopelessly stupid.

When this witness took the stand, I started wondering how hard a person with a tee shirt on needed to come in contact with a truck door to leave fibers.  Gough, evidently saw this as a problem as well since he objected when the State asked about different surfaces and the ease with which fibers can be transferred.

Gough also once again used the hopelessly inadequate investigation by the Glynn County Police (GCPD) to plant doubt in the minds of the jurors.  He asked the technician if she had collected fibers from the grill of the truck, the front of the truck, the back of the truck.  There was no objection about the relevance of this questioning.

The investigation by the GCPD has been a repeated theme for all the defense attorneys, but especially for Gough.  They are using the fact that the GCPD virtually accepted every word said on the scene of the murder by the white defendants and didn’t investigate to create doubt.  And there is a lot of room to maneuver here.  GCPD did not separate the defendants; they did not search the defendants.  They did not include the trucks in the crime scene and allowed at least Greg McMichaels to drive his own truck to the police station.

Again and again, the defense has used this against the state.  This evidence wasn’t collected, this part of the crime scene wasn’t preserved.  For example, Gough asked if the entire path of Arbery’s run was checked for evidence.  He was implying that Arbery had a weapon that was not recovered.  The defense attorneys are trying to encourage the jury to have doubt of guilt because the police failed to do an adequate investigation.  It’s the O.J. Simpson defense. 

Also, the defense attorneys have used the fact that the GCPD didn’t make any arrests as an indication that the men weren’t guilty.  The argument is that they weren’t arrested at the time, so there was no reason to arrest them.  I suppose, the extension of that thinking is that since “the media” has transformed this into a case about race, the men were only arrested because of inappropriate pressure by “civil rights activists.” (And we have Jesse Jackson sitting in the courtroom).

Jurors were questioned and some eliminated because they had supported the “social justice movement” (an ill defined term) in any way. 

There are people on Twitter who believe that there is a chance of getting a guilty verdict in this case even with eleven white jurors.  I am not that optimistic.  Gough was a public defender in this county for decades.  If nothing else, he knows his jurors and he is clearly laying a map for racist thinking in this case, providing pegs for the jury to put their racist Col. Sanders hats on.

“And you took that as a green light.” Ahmaud Arbery case and Kevin Gough

Blog 11/12/21

At the end of the trial day yesterday, defense counsel Kevin Gough expressed his usual consternation on finding out that Al Sharpton had been sitting in the courtroom in the Ahmaud Arbery trial.

Gough, in typical fashion he has displayed throughout the trial, popped off and tried to make an enormous issue out of nothing.  Gough maintained that the judge should bar Sharpton and other high profile black preachers from the courtroom.  Gough specifically said that the presence of Sharpton was “intimidating.”

“We don’t want any more Black pastors coming in here,” Gough spouted, making a fool out of himself yet again.  Various web sites posted photographs of his co-counsel putting her head in her hands as he spoke.

Gough, not having said enough had to use the phrase “these people” referring to exactly whom we don’t know.

Gough talked about Rev. Jesse Jackson as well and then finished up by saying that “If a bunch of folks came in here dressed like Col. Sanders with white masks sitting in the back…” people would protest. I am not at all sure what Col. Sanders has to do with anything, but that’s Kevin Gough.

It breaks my heart to know that Gough was the Glynn county Public Defender for years.  He is such a disastrously bad lawyer I cannot imagine how many poor people are in prison because of his incompetence.  Every person who went to prison after being defended by this man should have a new trial.  It is just one more instance of total incompetence and corruption by the Glynn County government.

Gough, after other defense attorneys went to the mics to denounce his statement, apologized today just in case he had inadvertently insulted anybody.

And on he went as he has been going for decades.

After a particularly long and inane cross examination of the GBI investigator who took over the Arbery case today, it occurred to me that one of Gough’s strategies was to be so confusing that the witness appears confused.  He then hopes that the witness will look more confused to the jury than he does.  In this particular case, he is hoping that the young black female prosecutor will object to his confusion and therefore look like a bitch.

I just cannot imagine that this man has gotten away with this incompetence for decades.  But, as one of the commentators after today’s performance pointed out, it could be that Gough is a person the jury identifies with. The commentator was pointing out that the GBI agent came off as smooth and professional.  The commentator posited that the jury might well identify with the shambling, stumbling Gough rather than the outsider, the smooth, polished, intelligent GBI agent.  I don’t know. I find it hard to believe that anybody could watch Kevin Gough, who has questioned whether Joe Biden is president in court, and think he is anything but a disaster.

Gough is like a bad actor who loves to act and has no idea that he is bad, really bad.  I have seen hundreds of them.  Now that I think about it, the entire “Gong Show” was based on such people.

Gough depends on making a lot of noise, but rarely has any legitimate legal point, and also seems completely disorganized.  Today, he seemed unable to fix on any one theory of his case.  He just kept throwing out option after option – Bryan was an idiot, Bryan had learning disabilities, Bryan was trapped by the GBI agent into saying things he didn’t mean, Bryan couldn’t remember what happened on the day of the killing and the GBI agent had taken advantage of him in some way, Bryan was only a witness, the GBI didn’t immediately arrest Bryan, throw it against the wall….

It did occur to me, however, that Gough had rather cleverly set up one of his defenses in advance.  When Bryan went to the GBI to be questioned, Gough asked the GBI agent to come out of the room so he (Gough) could explain what a hard time Bryan had following and explaining what happened in narrative form.  Gough essentially told the GBI agent that he had to talk down to Bryan, explain everything to him directly.

So, the GBI goes back in the interrogation room and explains things to Bryan as if he were a child, directly and simply.  And then Gough gets up in court and accuses the GBI agent of putting words in Bryan’s mouth by directly explaining things to him.  Gough set that one up, deliberately, methodically, and ahead of time.

But, I think Gough had not counted on the steely nature of this GBI agent.  Gough started down a path of condemning the GBI agent for setting up a reenactment where the GBI agent drove the truck and asked Bryan to tell him what happened.  Gough had made a point of telling the agent that Bryan was basically slow and he had to break down things to him and that Bryan had difficulty explaining things in a narrative fashion.  Then, when the GBI agent set up the reenactment with himself driving, and Bryan telling him what to do, Gough attacks the agent for not having Bryan drive the truck.

Gough berated the agent saying, you just had to have this reenactment  didn’t you, implying that the agent had forced the poor ignorant Bryan into doing this reenactment.  The agent calmly fired back, you were the one who demanded the reenactment because you said Bryan couldn’t talk through this in a narrative form.  Gough, didn’t skip a beat.  And you took that as a “green light” he fired back.  That’s my favorite quote of the day, perhaps of the week.

“You did this.”

“You told me to do it.”

“And you took that as a green light.”

It was Greg McMichael Who Controlled the Crime Scene

Greg McMichael was all over that crime scene.

Immediately after the shooting of Ahmaud Arbery in the street in Glynn County Georgia by Gregory Michael and his son Travis McMichael, Gregory McMichael (a former police investigator) took over the crime scene investigation.  There is little evidence that the police officers who arrived at the scene did much besides follow Gregory McMichael’s suggestions.

They allowed him to take over the situation.

For example, G. McMichael was not separated from the other men involved in the crime.  He repeatedly told his son (who pulled the trigger) “You had to do it.  You had to do it.”  In other words, say this is self defense, boy.

Police arrived within minutes of the shooting, but Greg McMichael and Travis Michael and the buddy in the chase, William Bryan, were allowed to roam around the crime scene, talk to each other and to other people, including witnesses like Diego Perez.  Their trucks were never searched.  The trucks they had used to chase down Arbery and hem him in were never even made part of the crime scene.

Even though police were on the scene, Gregory McMichael can be seen taking to his son, William Bryan and Diego Perez a witness to the crime.  Even when an officer was trying to interview Greg McMichael, an unidentified white male just strolled up and started talking to McMichael.  When the prosecutor asked the Glynn County Police (GCP) officer why he had allowed this, he said: “I don’t have a good answer for that.”

When the same officer was talking to someone from the Coroner’s office, Greg McMichael walked up and interrupted and started telling her what, in his version, happened.  The officer did not stop this.

No.  The officer did not have a good answer for why he allowed  McMichael to talk to other people and come up and interrupt a conversation the officer was trying to have with the coroner.  And, the GCP still don’t have a good answer for why they failed to secure the crime scene, allowed the assailants to leave the scene, change clothes and eventually go home.

In the aftermath of an event in which three men chased down a young black man because they thought he might have stolen something, thought he might have hurt somebody, thought he was up to no good, thought he might be on drugs, the GCP made no arrests, detained none of the men involved.  They interviewed them and sent them home.

When Greg McMichael was being interviewed by the GCP he directed them about what to do.  He told them they needed to go out and canvas the neighborhood because Arbery might have gone in somebody’s house.  Gregory McMichaels says in his statement: “he might have gone in somebody’s house.”  Officers, instructed by a man who was involved in the crime, dutifully went out and canvassed the neighborhood to see who else thought Arbery had committed a crime.  In the meantime, Gregory McMichael and his son Travis, went home. 

They stayed at home and would never have been prosecuted if the GBI hadn’t taken over the case. 

Ahmaud Arbery: Opening Statements

9:45 AM

Blog #2

  • Last night, Joy Reid talked with Paul Butler about what happens in case like this when you have only a small number of African Americans on the jury.  Usually, the defendant is acquitted.  They talked about the Zimmerman case.
  • It is a travesty that there is only one black person on this jury.  The judge simply declined to do his duty in rejecting the Defense reasons for eliminating jurors.  Also, the judge allowed overly broad and comprehensive questions such as “Have you in any way supported Black Lives Matter or the Social Justice Movement?”
  • As the prosecutor pointed out, the defense lawyers questioned the black potential jurors in more depth than they did the white jurors.  She held up four pages of notes on the interview of a single black juror. 
  • What the prosecution was demonstrating was that the defense attorneys probed the personal lives and beliefs of the black jurors until they found disqualifying information, i.e., information they could use to disqualify the juror without seeming to discriminate which is against the law.

Contentious Morning in Ahmaud Arbery Case. Use of Force Expert

A number of motions were taken up this morning in the Ahmaud Arbery case. 

The first was over whether the Defense could call a “use of force” expert to testify about the training supposedly received by Travis and Gregory McMichael.

The state pointed out that none of the people involved in the shotting were law enforcement officers.  While Trais and Gregory McMichael might have received use of force training years ago, they were not acting as law enforcement officers on the day of the shooting.

The State also pointed out that the expert the Defense was proposing to call as a witness had already talked with Travis McMichael.  The State wanted to have the answers Travis gave in this conversation.

The State argued that the testimony of this witness was “irrelevant, confusing and prejudicial.”  The very testimony of this witness gives the actions of the defendants a veneer of law enforcement legitimacy.

The State also noted that a “use of force” expert would testify to training about the “determination of probable cause.”  This is not the role of an expert witness, but the role of the court in a jury charge.

Kevin Gough, attorney for William Bryan, argued that the fact that the state was charging “malice murder” meant that somehow this “use of force” witness would be required to talk about the McMichael’s mental state.  (Note: I don’t understand this argument).

Gough argued that if the State agreed not to challenge the “credibility” of Travis McMichael then there would be no need for the “use of force” expert. 

Gough is the attorney for William Bryan, not for Travis McMichaels.  I am not sure why he is arguing about Travis McMichaels in the first place.  Gough, however, is frequently arguing strange things.  You can almost feel the entire courtroom tense up every time he stands up to speak.  Even the other defense attorneys seem embarrassed by him.

The State informed the court that she had no CV on the proposed expert.  One of Travis McMichael’s attorneys stood up and interrupted her to say that it wasn’t the job of the Defense to provide the State with a CV.

It was an argumentative and sometimes contentious morning.  Gough told the Court that it should be “offended” by the State’s arguments.  Another of the defense attorneys told the Judge that he could either read or listen to arguments (those of the defense attorney) but not do both.

Ahmaud Arbery: Jury Selection

Defense Attorney, Kevin Gough

Blog Ahmaud Arbery 11/1/21

There are several blog posts that need to be written about Kevin Gough, the defense attorney for William Bryan.  Bryan is the man who joined in the chase of Ahmaud Arbery, tried to pin Arbery in with his (Bryan’s) truck, and actually at one point hit Arbery with the truck.  Bryan is also the man who videoed the incident and then through an attorney released the video because he thought it would help his case.

Gough has complained in open court for two weeks about the “protestors” outside the Courthouse in Glynn County, Georgia.  I have been to the courthouse several times in the past two weeks.  The most people I have seen at the courthouse were there for a march the weekend before jury selection.

On that occasion, 16 October, there were approximately 80 people gathered outside the courthouse.  Probably a third of them were media or County personnel.  There have been no loud, unruly demonstrations outside the courthouse.  For the most part, people are sitting in lawn chairs, talking and eating.

But, Gough, last week, seemed to believe that the jury pool was going to be tainted because those people were outside the court, and because an organization put up a banner with John Lewis’ picture on it, asking people to vote. 

When he put this matter before the judge, Chatham County Superior Court Judge Timothy R. Walmsley, Gough was told that if he wanted to curtail the First Amendment Rights of the people in front of the courthouse, to make a formal motion. 

Gough has also read before the court, statements made by the Arbery family and by the Arbery family attorney.  He is maintaining that these statements could have an effect on the jury. 

Then, Gough complained in court that there weren’t enough “good ole’ boys” or “six pack Joes” in the jury pool, people like his client, William Bryan.  Then, in an interview given to Court TV later, Gough explained the difficulty in defining exactly what the demographics of these “good old boys” or “six-pace Joes” were.  He then concluded the interview by saying that if you couldn’t define exactly who these jurors were, it wasn’t much use.  What?

I sincerely don’t know what Gough is trying to do with these antics.  The other two sets of defense attorneys seem to be trying to win the case using more conventional tactics.  I cannot see how these tactics will benefit Bryan, but I’m open to having it explained to me.

Ahmaud Arbery: Jury Selection Notes

  • Defense attorneys wanted to prevent the media from having access to the answers of potential jurors during the jury selection process.
  • Since members of the public not involved in the case are not allowed in the courtroom, this essentially would prevent the public from knowing about the jury selection process.
  • The judge “compromised” by allowing two reporters to take “notes” during the individual sequestered questioning of the potential jurors. These notes have consisted of almost nothing every day.
  • Trials are supposed to be public.  Public scrutiny of the trial process is an essential check on the process.  Glynn County, however, has held the trial in a normal courtroom, completely ignoring the importance of the case.
  • Court TV is supposed to be line-streaming the trial, but after the first day of jury selection, they have moved on to other trials.
  • This situation effectively blocks the public from examining one of the most important parts of the trial.
  • Citizens in a democratic society should not be shielded from answering questions when they serve on a jury.  Citizens should not be afraid or ashamed of answering questions in public about their views and opinions.
  • One criminal defense lawyer on Court TV commented that she felt questions like “Do you think displaying the former state flag of Georgia is racist” were “lazy.”  An attorney from Georgia maintained that lawyers in Georgia have to start with a general question and then go onto a specific question in individual questioning.
  • When I used to teach, I used an article entitled “Is it Possible to Pick a non-racist Jury?”  The jest of the article was that asking blunt questions like “Do you consider this or that racist” were not useful.  A much more useful way of getting at racial prejudices was to ask, for example, if jurors had ever had a member of a racial minority in their house.
  • On Tuesday, the state objected to the defense attorney for Travis McMichael using the fact that T. McMichael had worked for the Coast Guard in asking potential jurors if they knew Travis.  The Assistant DA argued that the attorney was trying to introduce character evidence into the jury selection process.
  • A criminal defense lawyer interviewed later in the day pointed out that Assistant DA, Dunikowski, is normally an appellate lawyer and she is particularly sensitive to protecting the process from later appeals.
  • While I am sure that attorneys regularly introduce their clients with their arm slung over their shoulder, this seemed particularly hokey yesterday when it was done.  Travis McMichael stood up (cleaned up to look like a law clerk) and the attorney stood next to him hugging him like he was Travis’ father.  Maybe people fall for that kind of cheap showmanship, but I doubt it.
  • My impression of Sheffield is that he is an expert at introducing minute signals to the jury that slide under the level of something that would be successfully objected to, but which are nevertheless intended to leave a message.
  • For example, when Sheffield was questioning potential jurors yesterday, he would add a comment after he got a show of hands.  “Very good, thank you.”  He would say after the response to some questions and not others.
  • This may seem like a small point, and I am sure he would argue that he was just trying to establish rapport with the jury pool, but those affirmative responses can influence a juror.
  • When I was a teenager, the brother of a friend was a graduate student and he sat each of us down individually and asked questions about an interaction between two people.  He would respond positively (like “Very good, thank you.”) to responses to some questions but remain silent after the responses to other questions.
  • When he had finished the interview he asked if I knew what he was doing.  “You were responding positively when I answered questions supporting actor A, but not respond when I gave answers supporting actor B.  this was in fact exactly what he was doing.
  • The point of the experiment was to demonstrate that psychiatrists and psychologists could mold the answers of their clients by small positive or negative responses.
  • Sheffield asked if there were any negative feelings about criminal defense lawyers and no one raised their hands, he said: “This is very encouraging.”
  • I don’t see the need for Sheffield to make any evaluative comment in response to the juror responses.  But, I also don’t see the state objecting to it.  It is just too subtle.
  • Assistant DA Dobronski was already getting criticism for objecting to the identification of Travis McMichael as a former member of the Coast Goard.  One of the attorneys on Court TV noted that repeated objections to things this small would annoy the judge and slow down the trial.
  • The judge, while repeatedly claiming that he will take all the time needed, also repeatedly reminds people that they need to speed up.
  • He had initially thought that the attorneys could get through 40 potential jurors a day.  They have gotten through less than 20.

The Attorneys

  • The Assistant DA who is doing the jury selection had concerns about biases against the prosecutors because they came from outside of Glynn County.
  •  

Ahmaud Arbery: Jury Selection

Ahmaud Arbery Case: Day 2

Blog #6

Jury Selection

It was reported that the Court in Brunswick, Georgia was going to go into the night selecting jurors, but instead the court stopped jury selection around 6 PM. 

Today, jury selection continues with general questioning by the Prosecutor, Dunikoski.  Dunikoski and the other prosecutors on the team are not from Glynn County where Ahmaud Arbery was killed.  They are instead from Cobb County.  Dunikoski seemed concerned yesterday that jurors would hold prosecutors responsible for corruption cases in and around Atlanta.  The judge, however, did not see the benefit of introducing that subject into the jury questioning.

Dunikoski did, however today, ask the prospective jurors if they had any negative feelings or weren’t going to be able to be fair because the prosecution team was not from Glynn County.  No one raised their hands.

Jurors were asked:

  • If they were law enforcement personnel.
  • If they knew or were related to the present DA in Glynn County.
  • If they knew or were related to the former DA in Glynn County.
  • Note: The former DA was indicted for her handling of the Ahmaud Arbery case and it is widely believed that she lost reelection because of this.
  • Whether they knew any of the defendants (several did)
  • Whether they had served on a jury and whether that jury reached a verdict.
  • Whether they had had negative experiences with law enforcement (one did)
  • Whether they had had bad experiences with prosecutors (the same juror had)
  • Whether they had been arrested, or prosecuted for a crime (three had)
  • Whether they had a close friend or relative who had been arrested, prosecuted or convicted of a crime. (eight had)
  • Whether they had been a victim of a burglary or a home invasion (five had)
  • Whether they had given a statement to law enforcement (gone to the police department and given a statement) (four had)
  • Whether they owned a gun (11 did)
  • Whether they had carried a gun as part of their work (four)
  • Whether they had lived in Glynn County for less than five years.
  • The DA then went through a list of witnesses and asked if the potential jurors knew any of them. 

The jury pool was asked whether because of religious or moral reasons they could not pass judgement on another person.  Three raised their hands.

Five said they belonged to no organization, religious or other.

When asked if they had ever been arrested and treated unfairly, two jurors raised their hands.

Note: Juror 69 raised his hand in a number of these questions.

Updates on the Arbery Trial: Vanity Plates and Jailhouse Conversations

Blog #4: Ahmaud Arbery: Updates

Updates on the trial of the men who killed Ahmaud Arbery.

The judge in the Ahmaud Arbery murder case has ruled that recordings made of jailhouse phone calls of the three white men who chased Arbery down and killed him in the street, will not be excluded in the trial.  The defense had argued to exclude the calls.  (Court TV, 10/13/21)

         Depending on what is on the tapes, this could be a blow to the defense.  But, the ruling is no surprise.  There are signs all over the place in jails an prisons warning inmates that their conversations are being recorded.  You would have to be a fool, or someone who thought that you were not subject to the rules or the law, to ignore the warnings and conduct incriminating conversations over the telephone. 

         Anyone who watches trials or court news will remember the revealing conversations between Kasey Anthony and her parents while she was incarcerated.  Anthony did not admit her guilt, but her behavior was enough to raise serious questions about her stability and responsibility.  But, as watchers of court news also know, she was found not guilty.

The Confederate Vanity Plate

         Similarly, defense attorneys are trying to exclude a photograph of Travis McMichael’s truck that shows his confederate flag vanity plate.  While prosecutors have reportedly said that they will not introduce evidence of racial motivation in their case in chief, they have said nothing about introducing such information in their rebuttal case. 

         A defense attorney interviewed by the Atlanta Journal Constitution has argued that the defendants are likely to testify since the task for defense attorneys has to be to make these men human and understandable.  If one of the men claims that he had no racial bias or animus, this opens the door for the prosecution to introduce evidence that demonstrates racism (Atlanta Journal Constitution

The same defense attorney, commenting as an expert, argued that she thought the introduction of the vanity plate as evidence would be highly prejudicial to Travis McMichaels.  I am not so sure.  Growing up in Georgia, I would guess that jurors have seen these confederate symbols all their lives and know people who have displayed them.  I am not sure that the presence of the symbol on McMichael’s truck will be that influential.  I am not arguing that it should not be, just that I am not sure it will be.