Malice murder vs. felony murder: A look at the Ahmaud Arbery murder trial charges

WASHINGTON - A jury Wednesday convicted the three men charged in the death of Ahmaud Arbery on multiple counts, including malice murder for one defendant, in the fatal shooting that became part of a larger national reckoning on racial injustice.

The jury found Travis McMichael guilty of all charges, including malice murder. Greg McMichael was found not guilty of malice murder but guilty of all the rest of his charges. William "Roddie" Bryan was found not guilty of malice murder, one count of felony murder, and one count of false imprisonment, but guilty of his other charges.

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Each man had been charged with one count of malice murder, four counts of felony murder, two counts of aggravated assault, one count of false imprisonment, and one count of criminal attempt to commit false imprisonment.

All three men still face a federal hate crime charge, which will is scheduled to go to trial in February.

Malice murder vs. felony murder

Unlike many states, Georgia doesn’t have degrees of murder, but instead has malice murder and felony murder. Neither requires prosecutors to prove an intent to kill.

According to Georgia state law, felony murder is when "in the commission of a felony, he or she causes the death of another human being irrespective of malice." 

Defendant Travis McMichael watches a video clip the jury asked to see as part of their deliberation during the trial of McMichel and his son, Travis McMichael, and a neighbor, William "Roddie" Bryan in the Glynn County Courthouse on November 24, 2021

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For example, felony murder applies when someone who has no plans to kill intentionally commits another felony and a person dies as a result. The person must be convicted of the underlying felony to be found guilty of felony murder.

"Felony murder is a legal statute that expands the definition of murder. It occurs when someone commits a serious or inherently dangerous felony, and someone else dies during the course of committing or attempting to commit the felony," Lawson & Berry, a law firm in Atlanta, stated. "There does not need to be intent to kill or even an expectation that someone will die once the felony is commenced. The defendant will be liable for the death either way." 

Felony murder sentence

To be convicted of felony murder in Georgia, the state must demonstrate that the accused is guilty beyond a reasonable doubt. This includes showing that the accused attempted or completed a felony that is deemed serious or inherently dangerous under Georgia law. Therefore, the State must show that all of the elements are present for the commission of the underlying felony, according to Lawson & Berry.

"You don’t have to be the one who pulled the trigger," legal analyst Ben Taylor told LiveNOW from FOX. "If you were there and helping or assisting, that is basically what felony murder is." 

A felony murder conviction carries a life-in-prison sentence with or without parole or the death penalty.

Malice murder meaning

Malice murder is when a person "unlawfully and with malice aforethought, either express or implied, causes the death of another human being," according to law. 

Express malice is the deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Meanwhile, malice is implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

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This essentially means the person has acted with extreme recklessness even if there was no intent to kill, said Georgia State University law professor Russell Covey.

A malice murder charge is the most serious murder charge in the state of Georgia, and like a felony murder sentence can carry a sentence of life imprisonment with the possibility of parole, life imprisonment without the possibility of parole, or the death penalty.

Who actually shot Ahmaud Arbery?

On Feb. 23, 2020, Arbery was shot to death by a father and son who told police they grabbed guns and pursued him in a pickup truck because they believed he was responsible for break-ins in their neighborhood — a Black man, killed by two White men.

The McMichaels spotted Arbery and then pursued him in a Ford F-150 pickup. Their neighbor, Bryan, later joined the chase, which the prosecutor said lasted five minutes, in his Chevy Silverado truck. Travis McMichael approached Arbery with a shotgun and, after a brief struggle, fatally shot him.

Travis McMichael testified that he shot Arbery in self-defense, saying the running man turned and attacked with his fists while running past the idling truck where Travis McMichael stood with his shotgun.

"Out of malice, out of anger, out of trying almost intentionally to kill the person," Taylor noted further. 

On Wednesday, Travis McMichael was convicted on a charge of malice murder.

Because Travis McMichael was the one to fatally shoot Arbery, he was the only one convicted with the malice murder charge. Meanwhile, his father and Bryan were both convicted of felony murder. 

"You could be charged with a murder case, you can be convicted as you see, even though you weren’t there when you pulled the trigger, but you were there on scene, but the jury believes you participated in this, you can be charged and found guilty of what you call ‘felony murder," Taylor said.

FOX 5 Atlanta and the Associated Press contributed to this story.