Confusing Charge Complicates Black Jogger Case; Does a Citizen’s Arrest Require Only “Probable Grounds of Suspicion”
Black Jogger's Case Becomes More Complicated
WASHINGTON, D.C. (November 24, 2021) - The highly controversial trial of three men accused of murdering Black jogger Ahmaud Arbery became even more confusing when the judge, apparently deliberately, gave an ambiguous charge to the jury on a key issue: may a private person make a citizen's arrest for a felony such as burglary only if the crime is committed in his presence or within his immediate knowledge OR may he do so even if he has only reasonable and probable grounds of suspicion.
This issue is vital because the defense's major argument is that the defendants were within their rights to make a citizens arrest, and therefore the actions which followed do not constitute crimes.
Since it's clear that the defendants did not have knowledge that Arbery committed any crime, their only argument must be that they had reasonable and probable grounds of suspicion that he committed a felony such as burglary.
The relevant Georgia statute §17-4-60. Grounds for arrest reads as follow:
"A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion."
If the two sentences are read independently, it says that a citizen's arrest for a felony can be made upon probable cause, whereas a citizen's arrest for a crime which is not a felony can be made only if the actor is certain that a crime has been committed. This interpretation would favor the defense's argument that various events preceding the chase gave the defendants probable cause to believe the Arbery had committed burglary, a felony under Georgia law.
A different interpretation is that the requirement of knowledge in the first sentence applies also to the second sentence of the statute, and therefore also to felonies. This interpretation favors the prosecution, since defendants cannot claim, even to this day, that they knew that Aubery committed burglary or any other crime.
Rather than providing his own expert and controlling opinion as to the meaning of this ambiguous statute in his charge to the jury, the judge simply read them the exact words of the statute. This left 12 lay persons with the task of interpreting a statute as to which even lawyers can and do disagree - and to do so without the advantages of legal and historical research (e.g., what did these words mean when the Civil War statute was passed in 1863?).
Actually, notes Banzhaf, the relevant history goes back much further to medieval England, There the 1285 Statute of Winchester gave people the right to arrest offenders even if the citizen had not witnessed the crime being committed.
Two Different Interpretations
So jurors arguing for or against conviction can try to rely upon two different interpretations of this key statute; one which argues for conviction (probable cause isn't sufficient for a citizen's arrest) or another which provides a possible defense to the charges (if only probable cause is required). But there can be only one legally correct one; the interpretation adopted by the state's highest court.
Thus it is quite possible that one or more defendants might be convicted based upon the interpretation which rejects a citizen's arrest based solely "upon reasonable and probable grounds of suspicion" - an interpretation which law professor Banzhaf and other legal scholars believes is not only incorrect but actually also one which makes no sense.
It's also possible that they will be found "not guilty," with no appeal possible, based upon an interpretation of the statute which Georgia's highest court could subsequently reject.
Interpreting statutes which are not clear is the job of a judge, not 12 lay members of a jury, and here Judge Timothy Walmsley shirked that duty with regard to a decisive legal issue, charges Banzhaf.