Opinion: The Arbery Trial Begins

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Jury selection for the trial of the three white men accused of murdering Ahmaud Arbery is finally over. Opening arguments will begin today in Brunswick, Georgia. You can read about the background of the case here.

It took 13 days to select the jurors. This is abysmally slow. The jury in the Kyle Rittenhouse trial, for example, was chosen in one day. Why did this one take so long? One reason is that there are three defendants. This means three defense lawyers as well as the prosecutor were entering motions, arguing points with the judge, questioning potential jurors, and arguing about those questions. Race also complicated selection.

The first step was a jury summons. All 1,000 potential jurors got a questionnaire about the case, so they knew right away what case they were being called for. This is unusual; jurors are usually called to serve on whatever case happens to come up. The questionnaire — which makes interesting reading — asked how much the jurors knew about the case and what they believed the facts to be. They were asked if they had researched the case, commented about it on social media, and if they had seen the video of Travis McMichael shooting Ahmaud Arbery. The questionnaire was also used to screen out people who knew Arbery or any of the defendants.

People who then showed up for jury duty — only half even showed up — were divided into groups of 20, and the lawyers asked them many questions that could be answered by raising their hands. Jurors were asked they had negative feelings about the defendants, and many raised their hands. They were asked if they supported BLM and if they took part in the #IrunwithMaud campaign (which would have made more sense as #IrunwithAhmaud). Other examples of questions were:

  • The old GA state flag, the one in existence from 1956 to 2002, is a racist symbol. Raise hand if you agree.
  • Do you agree that the Confederate flag is a racist symbol?
  • Do you agree POC are not treated fairly in the criminal justice system?
  • Do you agree that police treat POC and white people differently?
  • Do any of you have a general concern that after this case, you could suffer some kind of consequence that would cause you to have a tough time serving on this jury? That in some way, your service is going to create problems for you in your life afterwards?
  • Has anyone here had a bad experience with law enforcement that sticks out in your mind?
  • Have you for any reason formed any opinion as to the guilt or innocence of the accused?
  • Have you had a bad experience with a prosecutor?
  • Do you feel that a psychologist can find mental illness in just about anybody?

These hand-raise questions narrowed the jury pool to 48, but did not eliminate every case of what might appear to be bias. At least one juror who was in #IrunwithMaud qualified. Once the pool was narrowed to 48, the lawyers eliminated jurors with preemptory strikes, which meant that no reason for the strike had to be stated. The prosecution used its 12 strikes to eliminate 12 white jurors. The defense had 24 strikes, and used them to eliminate 13 white jurors and 11 black jurors. The defense had more strikes than the prosecutor because there are three defendants.

This resulted in a jury of 11 whites and one black man. There are 12 women on the jury and four men on the panel of 12 jurors and four alternates.

Throughout jury selection, a group of blacks from a non-profit organization called the Transformative Justice Coalition (TJC) was constantly outside and inside the courthouse. On the first day of jury selection, they sat on folding chairs outside the courthouse all day. Some watched the trial from inside. They marched from the courthouse to a mural of Ahmaud Arbery a few blocks away. On the second day of jury selection, the group took a bus to Satilla Shores and protested in front of homes on the street where Arbery was shot.

In an interview outside the courthouse, Arbery’s aunt, Diane Arbery was asked how she felt when learned that Transformative Justice would support her family. She said, “When I saw the buses come in, I was crying. I said ‘Oh, my Lord!’ All these people coming to support my family!’”

The Transformative Justice Coalition, which is headquartered in Washington D.C., seems to be well-connected to the Democrat Party. Its website shows that it sponsored a conference in August of speeches by Maxine Waters, Jessie Jackson, and Beto O’Rourke. An event in May asked for sponsors to donate $10,000-$50,000. Its list of endorsers includes the American Federation of Teachers, Planned Parenthood, and the Southern Poverty Law Center.

On October 25, Kevin Gough, lawyer to Roddie Bryan, (the man who filmed the viral video of the shooting), objected to demonstrators outside and inside the court wearing “Vote” buttons with a photo of John Lewis, a Georgia congressman who died in July 2020.

Daryl Jones, the chairman of the TJC, said in an interview outside the courthouse, “The button doesn’t indicate anything other than promoting voting.” He said that when John Lewis died, he viewed the body in Washington DC, “took a knee” in front of the casket, and pledged to continue Lewis’s work for voting rights. The TJC connects this trial to voting in a post on its Instagram account that says, “We saw how the #AhmaudArbery family used the power of the #vote to oust the former District Attorney who refused to prosecute the killers of #AhmaudArbery!”

The demonstrations have nothing to do with election law. They carry signs that say, “Justice for Ahmaud” because they clearly want a guilty verdict. While their website doesn’t say anything about this trial, TJC’s other social media do. Several of its Instagram posts are about the trial, including one that says, “This is our Emmitt Till moment.” As the trial proceeds, they will use social media to ask people to come protest outside the courthouse. How can this not intimidate the jury? That said, Americans have free speech, and a ruling against the TJC’s activities could have violated First Amendment rights.

On October 26th, Mr. Gough argued for his motion, but he wandered from the topic of TJC protests where the jurors can see them. Instead, he complained that the Lee Merritt, the lawyer representing the Arbery family in its civil case, seemed to be trying to teach people how to manipulate jury selection. Mr. Gough mentioned a now-deleted post on Lee Merritt’s blue-checked Instagram account that said, “Register to vote. Show up for jury duty. Remember this phrase ‘I can be fair.’ ”

Mr. Gough said Mr. Merritt was indoctrinating jurors to say, “I can be fair” when they can’t be fair. This was encouraging people to be “stealth jurors” who have already made their minds up about guilt or innocence, but who pretend to be impartial to get on the jury. “Maybe we should just take the first twelve,” Mr. Gough said, “because if we can’t get candid responses out of the jurors, then we might as well flip coins and decide who gets on the jury and who doesn’t.”

Linda Dunikoski, the Senior Assistant DA for Cobb County, said she didn’t understand what social media posts had to do with the defense’s request to limit protests. Ultimately, the judge denied the defense motion, citing a lack of evidence, and all Mr. Gough did was complain that it seemed impossible to get a fair trial in this climate.

On the last day of jury selection, Barbara Arnwine, president of the TJC, said in an interview outside the courthouse, “We want to make sure it’s a racially diverse jury. Remember, we are in Glynn County, and African Americans are a sizable part of this population. Here in Brunswick, they’re 56 percent of the population. So we expect to have a racially diverse jury. If we see a lot of racial strikes today, we going to really have issues. . . . We’re anxious to have a fair jury. I think that’s what we’re going to get . . . .”

After hearing that there would only be one black on the jury, she said, “When they said 11 out of 12. . . It was a shock. It hurts. It hurts. We know how biased the system is. We know how big a fight and how uphill a fight this is to get justice for Ahmaud, but my goodness that was chilling. . . . They purposely kept one, so they couldn’t get criticized for getting rid of everybody.”

Please recall that the “inconsiderate” defense team struck jurors of both races, while the prosecution eliminated only white jurors.

There were questions about potential juror honesty. A black middle-aged woman, who wrote in her questionnaire, “They hunted him down and killed him like an animal,” appeared to be hiding some of her social media postings. She said she did not remember posting “Happy Birthday, Ahmaud,” on Facebook on the day the defendants were arrested. She is not serving.

Another potential juror was a dancer who posted videos to her Tik Tok account. It was discovered late in the selection process that she added #IRunwithMaud with emoji hearts to a video. Miss Dunikoski objected to dismissing her for cause, saying that’s what lawyers’ preemptory strikes are for.

The prosecution also complained about jurors. One had a post of her husband proposing to her wearing a shirt with the Confederate flag on the back.

Juror 112 told the court that if selected, she would worry about safety. She wondered if she could listen to the case while she worried about her life and property. She asked that her identity be protected, but Judge Walmsley told her the court could not guarantee that after the verdict no one would find out who she is. This woman may be on the jury.

When jury selection began, Greg McMichael’s lawyer, Franklin Houge said, “We’re gonna talk about race. We’re gonna talk about guns. We’re gonna talk about citizen’s arrest law, the self-defense concept. All of the stuff that’s at the heart of the case… We’re not going to shy away from any of it, and we hope jurors will give us their candid and honest views on these things.”

Is it possible to find 12 candid, honest jurors? Can the system work in a charged atmosphere, in which every juror knows what will happen if there is an acquittal? How many jurors are worrying, like Juror 112, about their lives and property? Would the Ku Klux Klan be permitted to march by the courthouse every day, calling for justice for the defendants?

Justice in a multiracial society is on trial in Brunswick just as much as the defendants.

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