There\u2019s an old saying in the courtroom that when the law is against you hammer on the facts, when the facts are against you hammer \u2026<\/b>
\nThere\u2019s an old saying in the courtroom that when the law is against you hammer on the facts, when the facts are against you hammer on the law, but when both are against you hammer on the table. This week, a defense attorney for the men who killed Ahmaud Arbery in Georgia chose to pull out a different hammer to distract from both the facts and the law: the racist hammer. Yet, by its guilty verdict Wednesday, the jury rejected the defense’s obvious efforts to exploit what it hoped would be the racial undercurrent. Instead, the jury did its duty and followed the law by answering \u201cno\u201d to the critical legal question: whether the three defendants, Greg McMichael, Travis McMichael and William \u201cRoddie\u201d Bryan validly engaged in a citizen\u2019s arrest that led to a justifiable use of deadly force against Ahmaud Arbery? They did not, and as a result, all three men were found guilty of felony murder. They must be accountable for the unlawful killing of this innocent victim. More: Ahmaud Arbery was murdered or, more accurately, lynched This was a good day for justice. But the verdict cannot and should not negate the way in which race permeated this case. For the prosecution, it was nothing more than the victim\u2019s race \u2013 or more precisely the inherent bigotry triggered by his race \u2013 that led the three defendants to chase him down and initiate the alarmingly violent confrontation. For observers, the legal process that allowed the defense to remove all but one African American juror from the case in a community that is nearly 27% Black \u2013 even with the judge voicing his concern that the tactic appeared to indicate discrimination \u2013 seemed perplexing. And for too many Americans, it was once again time to brace for the all-too-common \u201cnot guilty.\u201d But for all of us, this case is a powerful illustration of how the legitimacy of criminal justice is always vulnerable to the corrosive effect of racial bias. It was essential for the defense to characterize Arbery as a menacing presence. Only by doing so could they justify the conduct of their clients. That is not surprising and is a common tactic in a self-defense case. But using Arbery\u2019s race as the basis for that characterization went too far. Specifically, Laura Hogue, one of Greg McMichael’s lawyers, stated: \u00ab\u00a0Turning Ahmaud Arbery into a victim after the choices that he made does not reflect the reality of what brought Ahmaud Arbery to Satilla Shores in his khaki shorts with no socks to cover his long, dirty toenails.\u00a0\u00bb This description was both puzzling and inflammatory, but also recognized immediately as a despicable effort to tap into inherent racial bias to justify the actions that led to his death. While blaming a victim\u2019s aggressive conduct is logical to assert self-defense, criticizing a decedent\u2019s clothing and hygiene is a new level of low. USA TODAY’s Suzette Hackney: 25 million reasons to be thankful in Charlottesville, where there’s accountability for hate The description of long dirty toe nails, taken from the autopsy report, and the emphasis of the type of shorts he was wearing with no socks helped paint Arbery as an outsider who did not belong in a community that may wear expensive exercise gear and get regular pedicures. And why not? What down side was there to take that shot hoping it would appeal to the darker instincts of the almost all-white jury? Such an argument might resonate with someone who agrees that a young Black man who \u201creally doesn\u2019t fit\u201d running down that street was automatically suspicious, who can\u2019t understand why Arbery would resist after being chased down and confronted with a gun. Yet isn\u2019t it ironic that what was truly dirty weren\u2019t Arbery\u2019s toenails, but the effort to use that racist hammer. Yes, it is the duty of defense counsel to zealously advocate for their clients. But there is a line between zealous advocacy and the effort to exploit pernicious racial stereotypes and biases. While there seems little doubt that such bias was the principal motivation for the defendants\u2019 choices that fatal day, attempting to leverage them to vindicate those actions crosses the line from ethical advocacy to corruption of the criminal justice process. And when such tactics are on full display as they have been in this case, is it any wonder that too many Americans question the legitimacy of this system? Justice doesn’t always fit the ‘narrative’: From Kenosha riots to Kyle Rittenhouse trial, biased media coverage makes everyone angrier So, while the verdict is a credit to both the prosecution and the jury that returned it, no one should overlook how from inception this case is about more than the law; it was about race. Results like today\u2019s may inspire a sigh of relief that the criminal justice system worked, but it will take much greater determination from all Americans to purge racial bias from our criminal justice system and our society at large. Njeri Mathis Rutledge, a professor of law at South Texas College of Law Houston and a member of USA TODAY’s Board of Contributors, is a former prosecuting attorney, a wife and a mother. She graduated from Spelman College and Harvard Law School. Follow her on Twitter: @NjeriRutledge Geoffrey S. Corn is The Gary A. Kuiper Distinguished Professor of National Security at South Texas College of Law Houston in Texas. His teaching and scholarship focus on the law of armed conflict, national security law, criminal law and procedure, and prosecutorial ethics.<\/p>\n