(CN) — The Georgia judge presiding over the high-profile case of three white men charged with murder for fatally shooting Ahmaud Arbery spent Thursday listening to one last round of pre-trial motions to limit the evidence that will be heard by the jury.
Superior Court Judge Timothy Walmsley granted the prosecution’s motion to exclude a toxicology report which showed a small amount of THC, the main psychoactive compound in marijuana, in Arbery’s system after his death.
Walmsley also rejected an attempt by defense attorneys to exclude a video taken from a police body camera which contains graphic, close-up footage of Arbery dying in the street from three shotgun wounds.
An attorney for Travis McMichael, the man accused of shooting Arbery, said parts of the video were “very inflammatory.” But the state insisted that the video was relevant to show the defendants’ interactions with police at the crime scene.
The judge sided with the state, ruling that the footage can be shown to jurors because it demonstrates the manner of the victim’s death and how the body was found.
McMichael, his father Gregory McMichael, and their neighbor William “Roddie” Bryan face charges including malice murder, felony murder, aggravated assault and false imprisonment. The three men, who are all white, have pleaded not guilty.
Defense attorneys say the McMichaels chased Arbery in their pick-up truck as he jogged through a Brunswick, Georgia neighborhood last February because they believed he had committed a burglary. They claim the men planned to detain Arbery under Georgia’s now-repealed citizen’s arrest law.
Greg McMichael told police at the scene of the shooting that his son shot Arbery in self-defense after the two men grappled for the gun. The 25-year-old Black man was unarmed at the time of the shooting.
Defense attorneys appeared to argue Thursday that smoking marijuana can cause aggression in people who, like Arbery, have been diagnosed with schizoaffective disorder. The judge ruled earlier this year that the victim’s mental health records will not be admissible as evidence.
Prosecutor Linda Dunikoski said the state did not plan on telling jurors about toxicology reports performed on Arbery’s body, telling the judge that she did not believe the discovery of “minute” amounts of THC in Arbery’s blood was relevant.
Dunikoski argued that the defense’s attempt to get the toxicology report into evidence was part of a plan to bolster the self-defense argument by creating a causal connection between Arbery’s alleged drug use and his allegedly aggressive behavior toward the defendants.
“Why Mr. Arbery did anything he did is completely irrelevant,” Dunikoski said. “The question is about what the defendants did, and they knew nothing about what was in his system.”
The judge also granted the state’s motion to exclude an expert who would have testified about Travis McMichael’s use of force.
It is not yet clear which way Walmsley will rule on a request to allow defense attorneys to tell the jury that Arbery was on probation when he was killed. The defense team has indicated that they would use the evidence to argue Arbery initially ran away from Bryan and the McMichaels because he was afraid of another run-in with the law.
The judge has also not yet ruled on the question of whether a license plate on the McMichaels’ vehicle, which featured the old Georgia state flag, will be blurred out in videos and photos presented to the jury. The flag, which was used from 1956 until 2001, featured the Confederate battle emblem.
Attorneys for the McMichaels have argued that the presence of the flag license plate could be prejudicial to their clients because many view Confederate symbols as racist.
Walmsley is expected to issue rulings on the remaining motions late Thursday or early Friday before the jury is seated.
The 12-member jury, which includes just one Black panelist, will be sworn in Friday morning and hear opening statements from attorneys on both sides in the Glynn County Courthouse.
One juror, a white woman, was dismissed for medical reasons Thursday afternoon and replaced with one of the alternate jurors. The alternate juror is reportedly also white.
The racial makeup of the jury in the case has already caused tensions in the courtroom and drawn nationwide scrutiny.
The judge said Wednesday that he agreed with prosecutors that the exclusion of all but one Black potential juror from the final panel appeared to be due to “intentional discrimination” but said he would not intervene because defense attorneys gave non-discriminatory reasons for excluding those jurors.
The U.S. Supreme Court has ruled that excluding jurors solely on the basis of their race or ethnicity is unconstitutional.
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