Almost all-white jury in Arbery Killing takes a close look

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Follow updates on the trial for the murder of Ahmaud Arbery.

BRUNSWICK, Georgia – Even though this week approved the selection of an almost all-white jury to hear the murder case against three white men accused of killing Ahmaud Arbery, a Georgia judge has said there had an appearance of “intentional discrimination” to play.

But Glynn County Superior Court Judge Timothy R. Walmsley also said defense attorneys presented legitimate reasons unrelated to race to justify the impeachment of eight potential black jurors. And that, he said, was enough for him to reject the prosecution’s efforts to resettle them.

What perhaps seemed like convoluted logic to lay people was in fact the judge’s scrupulous adherence to a 35-year-old Supreme Court ruling that sought to eliminate racial bias from the jury selection process – but which ended up being regarded as a failure by many jurists.

The guidelines established by the ruling were at the heart of the intense legal fight that erupted in court on Wednesday night over the racial makeup of the jury in the trial of the three defendants, which is due to open on Friday. The argument raised fundamental questions about what it means to be a fair and impartial juror, especially in a high-profile trial set in a small, interconnected community where almost everyone has opinions on the case.

Defense attorneys told Judge Walmsley there were substantial and racial reasons for excluding several black candidates from the jury. A man, they said, had played high school football with Mr. Arbery. Another told lawyers that “this whole thing is about racism.”

But the fact that the jury consisted of 11 white people and one black person in a trial in the Deep South for the murder of a black man has deeply dismayed some local residents who were already worried about whether the trial would be. fair.

“This jury is like a black eye to those of us who have been here for generations, whose ancestors worked and labored and laid the foundation for this community,” said Delores Polite, community activist and distant relative. of Mr. Arbery, who was fatally shot last year after being pursued by three men who suspected him of a series of burglaries.

More generally, the racially imbalanced jury, in a county made up of around 27% Black and 64% White, points to the lingering challenges facing U.S. courts in enforcing what appears to be a simple constitutional principle: that ‘equal justice’ demands a free criminal trial. of racial discrimination in the jury selection process, ”as Justice Brett M. Kavanaugh said in a 2019 ruling.

At the heart of the matter in the Georgia case, and in many others like this one where whites dominate the jury box, is the ability of lawyers to issue a limited number of peremptory challenges – which usually do not require no explanation – to knock potential jurors to deal with it. Lawyers generally have broad discretion, but in a landmark 1986 case, Batson v. Kentucky Supreme Court ruled that lawyers could not discriminate on the basis of race during the challenge.

Since then, lawyers who suspect the other side of overthrowing a juror on racial grounds can challenge it, a decision often referred to as the ‘Batson challenge’.

This unfolded for nearly two hours on Wednesday at the Glynn County Courthouse, as defense attorneys explained to Judge Walmsley detailed reasons why they believed each of the eight black residents shouldn’t. not sit, like the pro-Arbery hashtags some potential jurors posted online or the negative opinions they formed on the three defendants – Gregory McMichael, 65; her son Travis McMichael, 35; and their neighbor William Bryan, 52.

Laura D. Hogue, one of Elder McMichael’s lawyers, described peremptory strikes as an important tool that allows lawyers to “eliminate the worst from the worst,” meaning she heard from the people. which seemed hopelessly biased.

Senior prosecutor Linda Dunikoski backed down in all cases. She argued that a number of potential jurors were honest with lawyers about their knowledge and opinions on the case, but were subsequently dislodged by the defense on the basis of those opinions – even when they said they could be impartial if they were seated.

Ms Dunikoski also noted that the 12-person jury was selected from a panel that included 12 black people and 36 white people – and yet, she said, “the actual jury that was selected has only one only African-American man “. The prosecution used its 12 peremptory strikes against potential white jurors.

Judge Walmsley spoke like a man whose hands are bound by the law. “I’ll tell you,” he said at one point, “in that case Batson’s limits, I think, are clearly there.”

Outside the courthouse on Thursday, activists argued that the process was essentially broken.

“It’s not racially neutral,” said Barbara Arnwine, a lawyer and member of a group called the Transformative Justice Coalition. “It was a racial targeting of black jurors. It was spurious to lie and pretend it was anything other than getting rid of black jurors.

The case against the men accused of killing Mr. Arbery is a rare case in which a prosecutor challenges Batson; they are more typically issued by defense lawyers who try to prevent prosecutors from excluding minorities from the jury selection process. A number of studies have focused on prosecutors, finding they fired black jurors at double or triple the rates of other people in states like Alabama, Louisiana and North Carolina.

Batson’s effectiveness as a tool to eliminate racial bias in the jury selection process has come under serious criticism in recent years from legal scholars. In a California Law Review article last year, lawyer Annie Sloan argued that Batson was now “widely viewed as a toothless and inadequate decision that does not reduce the unfair exclusion of jurors of color.”

Ms Sloan noted that Batson’s protests were rarely successful, in part because it was too easy for lawyers to find a racially-neutral justification for their strike. And she argued that Batson failed to take implied bias into account, meaning lawyers could hit jurors on racial grounds without even realizing it.

Ms Sloan pointed to what she saw as a promising Washington state modification of Batson, where a 2018 state Supreme Court ruling prohibits peremptory challenges if an “objective observer” considers race or the ethnicity of jurors is a factor in their overthrow.

California has adopted a similar approach in 2020. Arizona will ban the use of peremptory strikes from January 1.

Some critical Batson jurists believe that peremptory strikes still have their place, serving as an important check against biased jurors. Stephen B. Bright, a professor at Yale Law School and Georgetown Law, said he was in favor of limiting the number of peremptory strikes to three per side.

On Wednesday in Brunswick, Judge Walmsley mentioned Washington as one of the states “that looked at Batson and recognized the limits he places on the court.” In Georgia, he noted that all lawyers need to overcome a Batson challenge is to provide an explanation that is “legitimate, non-discriminatory, clear, reasonably specific, and related” to the case.

The current concern in Brunswick is that confidence in the justice system has been undermined by the selection of a racially imbalanced jury.

Charlie Bailey, a former senior assistant prosecutor for Fulton County, Ga., Acknowledged the constraints the law placed on the judge. Yet he described the composition of the jury as fundamentally unfair to the community and to Mr. Arbery’s family.

“Eleven out of 12 is 11 out of 12,” said Mr. Bailey, a Democrat running for Georgia’s attorney general. “It’s hard for me to believe – and I think it’s hard for most people to believe – that 11 out of 12 had nothing to do with race.”


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