Family members of Ahmaud Arbery expressed outrage Thursday after the judge in the trial of three white men accused of killing the Black man said there was nothing he could do about the racial makeup of the jury.
Superior Court Judge Timothy Walmsley in Georgia acknowledged Wednesday there “appears to be intentional discrimination” when looking at how the jury of 11 white people and one Black person was selected.
The family’s attorney, Benjamin Crump, said Thursday that Arbery “is again denied justice,” and he found it “outrageous that Black jurors were intentionally excluded to create such an imbalanced jury.”
Arbery’s aunt, Thea Brooks, said she wasn’t surprised by the outcome.
“It’s just another injustice that we face daily,” she said on MSNBC, adding that she remains hopeful jurors will be open-minded.
Race and bias are central issues in Arbery’s death. Greg McMichael and his adult son, Travis McMichael, armed themselves and pursued Arbery in a pickup truck after they spotted him running in their neighborhood. A neighbor, William “Roddie” Bryan, joined the chase in his own truck and took cellphone video of Travis McMichael shooting Arbery three times with a shotgun, authorities said.
Defense attorneys for the McMichaels and Bryan have said they committed no crimes. Lawyers for the McMichaels have said they chased Arbery because they suspected he was a burglar who had been recorded on video inside a nearby home under construction. They say Travis McMichael was fearing for his life when he shot Arbery as they grappled over a shotgun.
While the seating of a nearly all-white jury will likely be discussed by observers during the trial, it does not appear to be in violation of the jury selection process, and Walmsley’s approval is unlikely to lead to a mistrial or related appeals, legal experts following the case said.
The optics of it are “horrible,” Page Pate, a Georgia defense attorney, said, but Walmsley ultimately “made the right ruling under Georgia law.”
Trial attorneys are allowed to reject potential jurors, known as peremptory challenges, and prosecutors and the defense can take turns eliminating people they don’t like for virtually any reason. But they cannot strike a juror based solely on race, which the U.S. Supreme Court ruled unconstitutional in 1986 in Batson v. Kentucky.
An opposing attorney who believes someone was dismissed because of race can raise a “Batson” concern to the judge, who could force the other attorney to provide a “race-neutral” reason why a person was dropped.
Some 1,000 jury duty notices went out in Glynn County, where Arbery was killed on Feb. 23, 2020, not far from his home outside the small coastal city of Brunswick. Almost 200 potential jurors were then questioned before the pool was whittled to about 64 and then 48 as Walmsley permitted peremptory challenges.
On Tuesday, one of the defense attorneys, Kevin Gough, expressed skepticism over the pool of potential jurors, saying it lacked white men over 40 without a four-year college degree.
On Wednesday, as attorneys moved to select the 12 jurors and four alternates, Linda Dunikoski, a special prosecutor from the Cobb County District Attorney’s Office, challenged the defense’s attempt to cut eight Black people as potential jurors. Ultimately, 11 potential Black jurors were cut.
Defense attorney Laura Hogue told the judge she could give “a race-neutral reason for any one of these” and said some had presented strong opinions about the case, including a juror who had written on her questionnaire that she believed Arbery was shot “due to his color” and felt the defendants were guilty.
While Walmsley conceded that “quite a few African American jurors were excused through peremptory strikes executed by the defense,” he ultimately agreed that each of their removals had a “legitimate, nondiscriminatory, clear, reasonably specific and related reason.”
Chad Posick, a criminology and criminal justice professor at Georgia Southern University, said it might not appear fair, but “nothing at this point is illegal and the selection process was likely in line” with the standard.
A University of California, Berkeley, study in 2020 found that prosecutors in hundreds of California appellate court trials examined from 2006 to 2018 used peremptory challenges to strike Black jurors from nearly 75 percent of cases and Latino jurors from about 28 percent of cases, while white jurors were removed from only 0.4 percent of cases.