Judge who rejected deal in Arbery hate crime case likely thinks it was too lenient, experts say

The federal judge who tossed out a plea agreement reached by prosecutors and at least one of the men convicted of murdering Ahmaud Arbery most likely did so because she believed the deal was too lenient, experts said Monday.

David Henderson, a former prosecutor and civil rights lawyer based in Austin, Texas, said the “outpouring” of criticism from Arbery’s relatives over the deal was probably so substantial that it pushed U.S. District Judge Lisa Wood to “bust” the agreement.

“It’s very unusual for a federal judge to do that,” Henderson said, noting that federal judges are unelected and “don’t care about what the public thinks.”

According to court documents filed Sunday, prosecutors had reached agreements with Travis McMichael and his father, Gregory McMichael, who were sentenced to life in prison without the possibility of parole this month for the murder of Arbery on Feb. 23, 2020.

A third white man, William “Roddie” Bryan, was also convicted in the murder of Arbery, who was Black. Bryan was sentenced to a life term with a chance for parole.

All three men were charged last year with federal hate crimes and attempted kidnapping, accused of targeting Arbery because of his race.

Under terms of the deal discussed in court Monday, Travis McMichael would have served the first 30 years of his state prison term in a federal penitentiary.

Arbery’s family slammed the agreement, which his mother, Wanda Cooper-Jones, said in court would have given Travis McMichael “one last chance to spit in my face after murdering my son.”

Arbery’s father, Marcus Arbery, said McMichael didn’t “deserve a plea.” 

“We want him to go to trial,” he said. 

Prosecutor Kristen Clarke said she had been led to believe the family supported the plea bargain and argued that the deal would “powerfully advance [the] larger interest of justice.”

But Wood rejected that argument. “Given the unique circumstances of this case and my desire to hear from all concerned regarding the sentencing before I pronounce the sentence, I am not comfortable accepting the terms of the plea agreement,” she said.

“I can’t say that 360 months is a precise … fair sentence in this case,” she added. “It could be more. It could be less. It could be that.”

Judges typically reject plea agreements when they think the punishment is too lenient, Henderson said.

NBC News legal analyst Danny Cevallos said “that doesn’t mean the judge is aligned with the victims.”

Wood will most likely want an outcome somewhere between what prosecutors had proposed and what Arbery’s father asked for in court Monday, Cevallos said.

It isn’t clear whether the men will still agree to plead guilty. Wood gave them until Friday morning to decide. If no agreement is reached, their trial will begin Monday.

Henderson said it was understandable that Arbery’s family felt betrayed by prosecutors. While government lawyers don’t have to comply with the wishes of a victim’s family, they often do — although not always when the victim is from a marginalized community, he said.

He noted that given the case’s history — a former prosecutor was criminally charged with trying to shield the McMichaels from authorities — federal prosecutors pursuing the hate crime allegations should have been more sensitive to how the family felt about the agreement.

“It’s a prosecutor’s job to sit down and talk to the parents until they feel comfortable with what’s going on,” he said.

It was unusual for prosecutors to pursue a plea agreement at all, he said, because hate crime charges typically aren’t filed after state court convictions and civil rights trials can have a powerful effect on society more broadly.

While senior officials in a large department might advocate the lofty goals of a civil rights trial, Henderson said, lower-level prosecutors often have a different perspective.

For them, “a conviction is a conviction is a conviction,” he said.

Pete Williams contributed.