Jury Selection and the Trial of Greg and Travis McMichael and William Bryan

Dear Readers,

This edition I feel compelled to address the jury selection process, particularly what occurred in Glynn County, Georgia, where Gregory and Travis McMichael and William Bryan are on trial for killing Ahmaud Arbery.

There is so much to say about this case, from the nature of the murder (see articles on the history of lynching in America below) to the prosecutorial misconduct1 to the repeal of the citizens arrest law2 to the jury selection process. While I touch on some of these issues in this edition, I focus primarily on jury selection because the makeup of the jury profoundly influences the outcome of the trial. (More on that below).

To Begin

Shakespeare wrote, “What’s past is prologue.” America’s racism, racist violence, and social control birthed a nation that creates legal justification for the murder of thousands of Black, Brown, and Indigenous people every year, along with developing legal protections for those who commit and participate in those murders. A nation that created citizens arrest, stand your ground, and related self-defense laws to preserve one of the legacies of slavery—the right for white people to murder Black people and people of color under color of law.

Jury selection has been a significant part of that legacy—another legal tool to protect those white people who steal the lives of people of color. Batson and the string of related cases (discussed below) that addressed discrimination in jury selection were intentionally made toothless by allowing “race-neutral” explanations for acts that were clearly and intentionally taken to keep people of color from serving as jurors. “Race-neutral” explanations allow for dog whistling and coded bigotry in the courtroom, even in the face of overt, documented discrimination. Indeed, only in the most egregious cases has SCOTUS overturned a conviction due to Batson violations. See e.g. the case of Curtis Flowers.

Additionally, the striking of potential jurors of color from jury panels in cases where the person accused is a person of color or the person harmed is a person of color is predicated on the notion that people of color are “raced” and biased, while white people are “raceless” and neutral. Yet another legacy of racism and slavery. This specious premise creates a criminal legal system where white people become, quite literally, police, judge, jury, and executioner. Such a process yields more death and destruction, with moments of true justice and fairness few and far between.

For more on this topic, take a look at Sonali Chakravarti’s opinion piece, “No, Black jurors aren’t ‘biased’ when it comes to shootings of Black people,” in the Guardian.

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An Overview of the Case

First, let’s orient ourselves. The titles of theses cases are: State of Georgia v. Travis McMichael; State of Georgia v. Gregory McMichael; and, State of Georgia v. William Bryan. (If you’re curious, each of these links takes you to case on the Glynn County Court webpage where you can see all of the legal filings). By the names of these cases, you see that they involve criminal charges brought against each of the named men by a district attorney in the State of Georgia. Specifically, these charges were brought in Glynn County Superior Court.

Because these are state cases, the men are charged with crimes that exist under the Georgia penal code. Under the Georgia penal code, the charges carry the potential for life sentences or the death penalty, therefore the prosecutor had to bring her case before a grand jury in order to formally indict the McMichaels and Mr. Bryan. (Here’s a reminder of what a grand jury is. Scroll to the second segment).

The grand jury voted to indict each man on nine counts:

  1. Malice Murder : This is what many crime shows call first degree murder. To state it simply, malice murder requires that a person intended to kill another and does so. The count here alleges that the three men intentionally and with malice aforethought killed Ahmaud Arbery.

  2. Felony Murder : Felony murder applies when a person is killed during the commission of a felony.3 In this count, the attached felony is the aggravated assault in Count 6.

  3. Felony Murder: Here, the attached felony is the aggravated assault in Count 7.

  4. Felony Murder: Here, the attached felony is the false imprisonment in Count 8.

  5. Felony Murder: Here, the attached felony is the criminal attempt to commit a felony (false imprisonment) in Count 9.

  6. Aggravated Assault: The alleged aggravated assault4 was the use of a 12-gauge shotgun by Travis McMichael to assault Ahmaud Arbery.

  7. Aggravated Assault: This count was charged due to the three men’s use of their pick-up trucks in way that was likely to or actually did result in serious bodily injury to Ahmaud Arbery.

  8. False Imprisonment: Here, the charge is that the three men “did unlawfully confine and detain Ahmaud Arbery without legal authority” by chasing him and then confining and detaining him with their pickup trucks.

  9. Criminal Attempt to Commit a Felony: Finally, this count alleges that the three men attempted to do the same acts as alleged in Count 8.

In Georgia, first degree murder and felony murder carry sentences of life in prison, life in prison without possibility of parole, or death. Aggravated assault with a firearm carries a punishment of between 10 and 20 years, while the aggravated assault with the vehicles ranges from 1 to 20 years. The final count may carry anywhere between 1 and 30 years (though there are variations of this law that could change that range).

The three men are being tried together in Glynn County Superior Court in Brunswick, Georgia in front of Judge Timothy Walmsley.

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Jury Selection

Under the Sixth Amendment of the U.S. Constitution,5 a person charged with a crime has the right to a trial and an impartial jury. The U.S. Supreme Court (SCOTUS) has limited the right to a jury trial to those accused of crimes that carry a sentence of six months or more in jail/prison.6

Additionally, the person accused has a right to an impartial jury drawn from a cross section of the community. Unsurprisingly, SCOTUS has limited that right, as well. Through a series of cases, SCOTUS determined that the required cross section applies only to the jury pool as a whole, not to the specific jurors selected to serve for a particular case.7

The explanation is that the fair cross-section requirement “is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does).” Holland v. Illinois, 493 U.S. 474, 480 (1990).

“Impartial Jury,” Justia, available at: https://law.justia.com/constitution/us/amendment-06/07-impartial-jury.html

In other words, federal, state, or county courts must draw a jury pool through a mechanism that does not intentionally exclude people based on race, religion, etc., e.g. all individuals who are over 18 and hold a driver’s license. In all likelihood, you have likely received a jury summons for this very reason.

However, the jury selected for a particular trial need not be a cross section of the community. After the lawyers have interviewed the potential jurors through a process called voir dire, they can strike potential jurors for many reasons. SCOTUS held that if, after voir dire (provided that there was no glaring discrimination on the basis of race, gender or religious underlying the strikes) an all-white jury is selected, it meets constitutional muster. As noted above, the jury is to be impartial, not representative.

As I write above, impartiality and neutrality, as used in the United States, are often code words for “white.” By removing the requirement of representation at the seated juror level, courts are enabled to uphold the racial hierarchy under the guise of neutrality and fairness. It is these very issues that Critical Race Theory explores.8

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Jury Selection in the Trial of Mr. Bryan and the McMichaels

A cross section of the community is selected as the jury pool, and here was pulled from a master list of those holding driver’s licenses in the Glynn County. Under Georgia law, there are a number of people who are exempted from jury service, including legislators, people over 70-years-old, and students. Those who have been convicted of a felony and have not had their rights restored are prohibited from serving on a jury.9

Summoned jurors must fill out a juror information form and mail it back to the court. Here, 1,000 potential jurors were called. Under Georgia law, prosecutors and defense attorneys are provided with the identifying information of the potential jurors. I cannot verify this, but based on common practice and given the publicity around this case, it is likely that staff members for both the prosecution and defense reviewed the juror information forms and from that, narrowed the jury pool (venire). Typically, the juror information card includes name, address, length of time living in the community, race and ethnicity, primary language, place of birth, etc.

In this case, 65 jurors were then qualified to serve in the venire and the voir dire process began. Voir dire means “to speak truth,” and is “[t]he process through which potential jurors from the venire are questioned by either the judge or a lawyer to determine their suitability for jury service.”10

To this smaller group, the court distributes a more specific questionnaire (see the jury questionnaire in this case here) that is then reviewed the judge, prosecution, and defense. Those questions centered around the potential jurors’ knowledge of the case, whether they had seen the video of the three men killing Ahmaud Arbery, how they learned about the case, etc.

In the courtroom, the jurors are then questioned based on their answers to the above questions, as well as other questions developed by the judge or attorneys. In this case, NPR reported that the attorneys asked the potential jurors about “their views on race, whether they own guns, and if they think Black and white people are treated differently by police.”11

Once the attorneys are satisfied that they have learned everything they can about the potential jurors, they begin the process of narrowing the venire to 15 (12 seated jurors and 3 “alternate” jurors).

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Striking Jurors

During voir dire, both the prosecution and the defense can strike jurors in one of two ways—a “for cause” challenge or a peremptory challenge.

For Cause Challenges

Challenges for cause in Georgia are governed by statute. A juror may be struck for the following reasons:

  1. That the juror is not a citizen, resident in the county;

  2. That the juror is under 18 years of age;

  3. That the juror is incompetent to serve because of mental illness or intellectual disability, or that the juror is intoxicated;

  4. That the juror is so near of kin to the prosecutor, the accused, or the victim as to disqualify the juror by law from serving on the jury;

  5. That the juror has been convicted of a felony in a federal court or any court of a state of the United States and the juror's civil rights have not been restored12; or

  6. That the juror is unable to communicate in the English language.

GA Code § 15-12-163 (2020).

Additionally, if there is concern about the potential juror’s ability to be impartial or unbiased, they can be struck for cause. For example, a potential juror may have read about the case or has expressed clear prejudice against an issue or group of people relevant to the case.

Another frequent issue is whether victims of crime, or relatives of victims of crime who are in the venire can maintain impartiality when hearing a case dealing with a crime similar in nature to what they or their loved one experienced.

There may be some presentation of evidence to justify this type of challenge, and if the judge is satisfied, the juror will be removed. Both sides may use unlimited for cause challenges, thus for cause challenges are a very precious commodities in seating a jury.

Though these descriptors may seem innocuous, there can be a great deal of debate about whether a potential juror’s relationship with one of the parties is close enough to render them terminally impartial, or if the person is prejudiced or biased in some way, for example.

Peremptory Challenges

A peremptory challenge is a challenge made without any reason or explanation needed. Because no reason is required, peremptory challenges are limited. Under Georgia law, peremptory challenges are limited to nine per side, unless it is a death penalty case where each side has 15 challenges.

In 1986, SCOTUS held that peremptory challenges may not be used by prosecutors to eliminate jurors solely on the basis of race.13 Through a series of cases, SCOTUS determined that jurors may not be struck solely on the basis of gender, ethnicity, or religion, as well as extending those rules to both the defense and the prosecution.

If one of the attorneys thinks the other is striking jurors based on race, they may raise a Batson challenge, named after the case that developed the rule, Batson v. Kentucky. That attorney must convince the judge that the other attorney is likely striking a juror on the basis of race. If the judge agrees, they then ask the opposing attorney to explain.

To overcome a Batson challenge, the opposing attorney must state a race-neutral reason for using their strike. “In a 1996 opinion, an Illinois appellate judge, exasperated by ‘the charade that has become the Batson process,’ catalogued some of the flimsy reasons for striking jurors that judges had accepted as ‘race-neutral’: too old, too young; living alone, living with a girlfriend; over-educated, lack of maturity; unemployed, employed as a barber; and so on.”14

If the judge unconvinced, then the peremptory challenge is overruled. The majority of the time, however, the race neutral reason is deemed sufficient and the juror is struck.

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What happened in this case?

Interestingly, and disturbingly, recent cases have reversed traditional roles, where the prosecution is bringing Batson challenges against the defense, as seen in the Chauvin, Rittenhouse, and Zimmerman trials. The same is true in this case.

Through the voir dire process, the defense repeatedly moved to strike potential black jurors through both for cause and peremptory challenges. The prosecution repeatedly brought Batson challenges for the peremptory strikes. Reporting on the trial explains that the defense stated that some Black potential jurors were biased against the defendants, had already made up their mind about the case, or had discussed the case extensively with friends and family, or on social media.15 Therefore, they were not seeking to strike the jurors because of their race, but because they were prejudiced or unable to be impartial.

Because of the limitations of Batson and the many covert, insidious ways to put racism in code, along with the judge’s own interpretation of the law, Judge Walmsley overruled the prosecution’s Batson challenges.

While Judge Timothy Walmsley acknowledged “intentional discrimination in the panel,” he told the court he was unable to reinstate any jurors who had been dismissed, saying the defense made race-neutral arguments” “to explain to the court why besides race those individuals were struck from the panel.16

As such, the defense was able to remove all but one Black potential juror, creating a jury of eleven white people and one Black person in a county that is nearly 27% Black. Take a look at the resources below to learn more about the history and impact of all-white juries.

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In Conclusion

Slowly, around the country, legislators are drafting laws to address jury selection to mitigate the profound harm that has been enabled and encouraged for centuries. We can be part of that change, and I hope we choose to do so.

For now, we wait to see if Ahmaud Arbery’s family and community will see justice, however they define it, and if the nearly all-white jury will choose to convict the three white men who took his life—or not.

Part II on immigration will be out shortly.

As ever, thank you for reading. Please spread the word. Take good care.

Respectfully,

Amy

Resources about the History and Impact of All-White Juries

Equal Justice Initiative, “Race and the Jury: Illegal Discrimination in Jury Selection,” available at: https://eji.org/report/race-and-the-jury/

Steve Hartsoe, “Study: All-White Jury Pools Convict Black Defendants 16 Percent More Often than Whites,” Duke Today (Apr. 17, 2012), available at: https://today.duke.edu/2012/04/jurystudy (see the study here)

Montana Innocence Project, “All-White Juries,” available at: https://mtinnocenceproject.org/all-white-juries/

Ashish S. Joshi and Christina T. Kline, “Lack of Jury Diversity: A National Problem with Individual Consequences,” American Bar Association (Sept. 1, 2015), avialable at: https://www.americanbar.org/groups/litigation/committees/diversity-inclusion/articles/2015/lack-of-jury-diversity-national-problem-individual-consequences/

All Things Considered, “What it means for the jury to be nearly all white in trial for Ahmaud Arbery's death,” NPR (Nov. 4, 2021), available at: https://www.npr.org/2021/11/04/1052485269/what-it-means-for-the-jury-to-be-nearly-all-white-in-trial-for-ahmaud-arberys-ki

Joe Hernandez, “How the jury in the Ahmaud Arbery case ended up nearly all white — and why it matters,” NPR (Nov. 5, 2021), available at: https://www.npr.org/2021/11/05/1052435205/ahmaud-arbery-jury

Ranjani Chakraborty, “How Racism Shapes Jury Selection,” Vox (Oct. 12, 2018), available at: https://www.vox.com/videos/2018/10/12/17968090/how-racism-shapes-jury-selection

(Old but still relevant) Richard C. Dieter, “Life and Death with Only Half the Truth,” Death Penalty Information Center (2005), available through the Prison Policy Initiative: https://www.prisonpolicy.org/scans/deathpenaltyinfo/blindjusticereport.pdf.

Resources on the History of Lynching in America

Equal Justice Initiative, Lynching in America: Confronting the Legacy of Racial Terror (3rd Edition) (2017), available at: https://eji.org/wp-content/uploads/2020/09/lynching-in-america-3d-ed-091620.pdf

See also EJI’s audio stories about lynching in America, available at: https://lynchinginamerica.eji.org/listen

NAACP, “History of Lynching in America,” available at: https://naacp.org/find-resources/history-explained/history-lynching-america

“The Origins of Lynching Culture in the United States: A conversation with Paula Giddings,” Facing History & Ourselves, available at: https://www.facinghistory.org/resource-library/video/origins-lynching-culture-united-states

Discussions about Lynching in Georgia

Jennifer Rae Taylor and Kayla Vinson, “Ahmaud Arbery and the Local Legacy of Lynching: How the white vigilante killing of the unarmed, black jogger in Brunswick, Georgia, is both an echo of past violence and a modern call to action,” The Marshall Project, available at: https://www.themarshallproject.org/2020/05/21/ahmaud-arbery-and-the-local-legacy-of-lynching

Jaclynn Ashly, “An American lynching: ‘I could hear their screams’,” Al Jazeera (Oct. 20, 2020), available at: https://www.aljazeera.com/features/2020/10/20/an-american-lynching-i-could-hear-their-screams

Sean Collins, “Ahmaud Arbery was lynched: Ahmaud Arbery was killed in the street by white men. That’s how lynchings work.,” Vox (May 21, 2020), available at: https://www.vox.com/21263899/ahmaud-arbery-lynched-video-mcmichael-glynn-county-georgia

Sandy Hodson, “Lynchings are part of Georgia’s past and present,” The Augusta Chronicle (July 31, 2020), available at: https://www.augustachronicle.com/story/news/2020/07/31/lynchings-are-part-of-georgiarsquos-past-and-present/114788556/

Emily Jones, “Citizen's Arrest Law Historically A Tool Of Lynchings,” Georgia Public Broadcasting (June 16, 2020), available at: https://www.gpb.org/news/2020/06/16/citizens-arrest-law-historically-tool-of-lynchings

1

Greg McMichael, one of the men accused of killing Ahmaud Arbery, is a former investigator for Brunswick Judicial Circuit District Attorney Jackie Johnson, the DA who would typically be the one to bring criminal charges. Instead of pursuing the case, Ms. Johnson sought to block prosecution. Ms. Johnson has now been indicted “a felony count of violating her oath of office and hindering a law enforcement officer, a misdemeanor” because of this case.

Governor Kemp assigned the Georgia Bureau of Investigations to take over the case and asked the DA in Waycross, GA to take over. That DA also obstructed investigations into this case and is being investigated himself. See Associated Press, “Ex-Prosecutor Accused Of Interfering With Investigation Into Ahmaud Arbery's Killing,” NPR (Sept. 2, 2021), available at: https://www.npr.org/2021/09/02/1033809949/ahmaud-arbery-former-prosecutor-indicted-misconduct-georgia; Alyssa Lukpat, “Former Prosecutor in Ahmaud Arbery’s Death Faces Criminal Charges,” The New York Times (Sept. 2, 2021), available at: https://www.nytimes.com/2021/09/02/us/jackie-johnson-indicted-ahmaud-arbery.html

After the two DA’s recused themselves (and now face or potentially face criminal charges), Governor Brian Kemp appointed Joyette Holmes as the special prosecutor to oversee the case.

2

Though this law was repealed, it is still a valid defense in this trial because the killing occurred before the repeal. The repeal will only impact conduct that occurred after the law goes into effect. For more about the history of Georgia’s Citizen Arrest law, check out: Patricia Johnson, “OPINION: The ugly past of Georgia’s citizen’s arrest law,” The Atlanta Journal-Constitution (Feb. 17, 2021), available at: https://www.ajc.com/politics/opinion-the-ugly-past-of-georgias-citizens-arrest-law/FTMNUJSNPREYBBLNZC56SZIY7U/ and Ashish Valentine, “What is the citizen's arrest law at the heart of the trial over Ahmaud Arbery's death?,” NPR (Oct. 26, 2021), available at: https://www.npr.org/2021/10/26/1048398618/what-is-the-citizens-arrest-law-in-the-trial-over-ahmaud-arberys-death.

3

Felony murder is an incredibly controversial concept because it ascribes culpability for killing and intent to kill to a person who did not, in fact, do the killing. I will be discussing it in later editions.

4

“A person commits the offense of aggravated assault when he or she assaults: (2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. O.C.G.A. 16-5-21(a)(2).

5

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

6

Baldwin v. New York, 399 U.S. 66 (1970), available at: https://supreme.justia.com/cases/federal/us/399/66/

Jail and prison are often used interchangeably, but they are different beasts. Jails are typically used to hold people before trial or case resolution (plea, dismissal, etc.), pre-sentence (meaning they’ve been found guilty and are waiting to be sentenced), or brief post-sentencing incarceration (e.g. for a misdemeanor with a sentence of 30 days). In other words, jails are (usually) for shorter duration detentions. Additionally, they are often managed by city or county governments, or private contractors hired by city or county governments.

Prisons are typically used to incarcerate people who have been sentenced to more than six months. They are (usually) operated and managed by the state or federal government, or private contractors hired by the state or federal government (e.g. Corrections Corporation of America (CCA)/CoreCivic or GEO).

7

“Right to an Impartial Jury: Current Doctrine,” Legal Information Institute, available at: https://www.law.cornell.edu/constitution-conan/amendment-6/right-to-an-impartial-jury-current-doctrine

8

“Critical Race Theory FAQ,” NAACP, available at: https://www.naacpldf.org/critical-race-theory-faq/

“[Critical Race Theory] (“CRT”)does not define racism in the traditional manner as solely the consequence of discrete irrational bad acts perpetrated by individuals but is usually the unintended (but often foreseeable) consequence of choices. It exposes the ways that racism is often cloaked in terminology regarding “mainstream,” “normal,” or “traditional” values or “neutral” policies, principles, or practices. And, as scholar Tara Yosso asserts, CRT can be an approach used to theorize, examine, and challenge the ways which race and racism implicitly and explicitly impact social structures, practices, and discourses. CRT observes that scholarship that ignores race is not demonstrating “neutrality” but adherence to the existing racial hierarchy.” Janel George, “A Lesson in Critical Race Theory,” American Bar Association (Jan. 12, 2021), available at: https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rights-reimagining-policing/a-lesson-on-critical-race-theory/

9

This prohibition impacts approximately 275,000 people in Georgia. ProCon.org, “Number of People by State Who Cannot Vote Due to a Felony Conviction,” Britannica, available at: https://felonvoting.procon.org/number-of-people-by-state-who-cannot-vote-due-to-a-felony-conviction/.

10

“Voir dire,” Legal Information Institute, available at: https://www.law.cornell.edu/wex/voir_dire

11

Debbie Elliott, “Potential jurors come with strong opinions in racially charged Ahmaud Arbery killing,” NPR (Nov. 2, 2021), available at: https://www.npr.org/2021/11/02/1051604511/potential-jurors-come-with-strong-opinions-in-racially-charged-ahmaud-arbery-kil.

12

This prohibition impacts approximately 275,000 people in Georgia. ProCon.org, “Number of People by State Who Cannot Vote Due to a Felony Conviction,” Britannica, available at: https://felonvoting.procon.org/number-of-people-by-state-who-cannot-vote-due-to-a-felony-conviction/.

13

Batson v. Kentucky, 476 U.S. 79 (1986).

14

Gilad Edelman, “Why Is It So Easy for Prosecutors to Strike Black Jurors?,” The New Yorker (June 5, 2015), available at: https://www.newyorker.com/news/news-desk/why-is-it-so-easy-for-prosecutors-to-strike-black-jurors

15

Joe Hernandez, “How the jury in the Ahmaud Arbery case ended up nearly all white — and why it matters,” NPR (Nov. 5, 2021), available at: https://www.npr.org/2021/11/05/1052435205/ahmaud-arbery-jury; Jacques Billeaud, “EXPLAINER: How the Arbery trial got a nearly all-white jury,” AP News (Nov. 5, 2021), available at: https://apnews.com/article/ahmaud-arbery-us-supreme-court-shootings-race-and-ethnicity-73e8f19b46ff52b39720bf50e8b99f01; Devon Sayers, “Judge says 'there appears to be intentional discrimination' in Arbery jury selection, but allows trial to move forward with 1 Black juror,” CNN (Nov. 12, 2021), available at: https://www.cnn.com/2021/11/03/us/ahmaud-arbery-jury-what-we-know/index.html; Richard Fausset and Giulia Heyward, “In the Trial Over Ahmaud Arbery’s Killing, a Nearly All-White Jury Is Selected,” The New York Times (Nov. 11, 2021), available at: https://www.nytimes.com/2021/11/03/us/ahmaud-arbery-killing-trial-jury-selection-race.html.

16

Joe Hernandez, “How the jury in the Ahmaud Arbery case ended up nearly all white — and why it matters,” NPR (Nov. 5, 2021), available at: https://www.npr.org/2021/11/05/1052435205/ahmaud-arbery-jury

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