Trial in Ahmaud Arbery killing a reminder racial makeup of jury is a constitutional matter

When the men convicted of murder in Ahmaud Arbery's death stand trial on federal hate crimes charges in February, racial animosity will be an essential element for federal prosecutors to try to prove. And they’ll have to prove its existence and import to a jury with differing experiences and perceptions of racism – that is to say, a jury of their peers.

To ease the burden of finding acceptable jurors, the judge agreed that the potential jurors will be selected from all of the Southern District of Georgia, 43 counties from Wilkes and Lincoln in the north, west to Dodge and Laurens and south through Camden and Charlton counties. Some 1,000 people will receive summonses.

Racism and racial hatred were not addressed in the Glynn County Superior Court murder trial for Greg McMichael, his son Travis McMichael and neighbor William "Roddy" Bryan. Prosecutors chose to ignore the emotionally charged subject and stick to the legal definitions of "citizen's arrest" and "self defense" and how neither defense applied to Arbery's Feb. 23, 2020, shotgun death.

But the racial makeup of the Brunswick jury in November – 11 white people and one Black person, a ratio more than a stone's throw outside the county's demographics of 27% Black, concerned many observers.

In 1986, the U.S. Supreme Court issued an opinion that formally acknowledged the importance of a jury that represented the accused's peers as well as the community in a case decided by a 7-2 vote, Batson v. Kentucky.

The Batson case said that the community is entitled to juries that represent the diversity of itself. When juries don’t, it is devastating to the community at large and “undermines public confidence in the fairness of our system of justice,” Justice Lewis F. Powell Jr. wrote for the court majority.

The point of the Batson ruling was to say it is wrong to strike, or remove, a potential juror because that juror is Black, said attorney Richard Goolsby Sr., a former federal prosecutor now in private practice in the Augusta area.

If the opposing side raises a Batson challenge to an attorney’s strike of a minority member of the jury panel, then that attorney must articulate a race-neutral reason for the strike, Goolsby said. It also works the other way – striking white jurors because they are white is prohibited, too.

Goolsby tried a case in federal court in Augusta in which he, as the prosecutor, raised a Batson challenge to the defense attorney’s strike of white potential jurors. The defendant in the case was Black. In that trial, the judge ruled the defense failed to raise convincing race-neutral reasons for the strikes, and the judge put the white potential jurors on the jury.

“Ultimately it’s up to the judge to listen to the trial proceedings and determine if the reasons for the strikes are legitimate,” Goolsby said. “It’s a tough burden on the judge, but judges make tough decisions every day.”

That said, a 2020 report by the Equal Justice Initiative, a left-leaning think-tank, found that juror bias remains. Research studies of jury selection in California, Mississippi and Louisiana have shown that Black jurors are struck as much as 175% more often than white jurors. Another study considered jury selection in one North Carolina county and found that trial judges were 30% more likely to remove prospective jurors of color than their white counterparts.

The prosecutors of the McMichaels and Bryan on murder and other charges in Arbery's death raised Batson challenges during the trial. The defense attorneys used their peremptory challenges to strike 11 of the 12 Black prospective jurors in the qualified jury panel. While the judge agreed there appeared to be a pattern of discriminatory strikes, he accepted the defense's race-neutral reasons.

Judges seem reluctant to question an attorney’s intent. Defense attorney Keith Johnson, a former prosecutor now in private practice, has seen it done successfully, but it’s rare, he said.

Once a Batson challenge is raised, the back and forth between attorneys over race-neutral reasons can become illogical, he said. “(A jury strike) doesn’t have to really have any logic to it.”

The difficulty of applying Batson in real courtrooms is that explaining why a potential juror is desirable or not can be hard to put in words, said Pete Theodocion, an Augusta lawyer who specializes in criminal defense. It's not necessarily the verbal statements by jurors as much as how and why they voice opinions, he said. Theodocion is representing Bryan on unrelated federal charges set for trial in February.

The Arbery murder case was different from most trials in that the judge and attorneys questioned potential jurors individually and extensively on what they knew about the Feb. 23, 2020, murder. The slaying of the 25-year-old Black runner was partially caught on video that went viral. His family and leaders of the NAACP compared Arbery's death to the vigilante lynching of Blacks across the United States.

Read More: Ahmaud Arbery killing reminder that lynchings are part of Georgia’s past and present

“It’s always hard to say why you strike a person,” Theodocion said. “But I think the perceived impact of race on criminal trials is overrated,” he said. “Jurors tend to do what they believe is the right thing.”

But Theodocion said he thinks the Arbery case is different in that it took place in a small community where Arbery’s killing has been a top topic of discussion for nearly two years. It had to be particularly difficult for a Black person in that community not to have formed an opinion, he said.

Attorney Tanya Jeffords said that a Black man being chased after by white people and killed on the street reaches a deep pain in Black Americans. It's an emotional response, but the pertinent question is, can the juror set aside emotion and judge the case on the facts, she said. If he can't, no one wants that person on the jury regardless of race.

The Batson ruling is something that looks good on paper, but isn't a real engine to accomplish what it intended. All an attorney has to do is voice some race-neutral reason for striking a juror regardless of the truth of the statement, Jeffords said.

With 36 years of experience trying cases in the South, defense attorney Carl B. Grant knows the feeling, but he believes the sad fact that race does play a part in jury selection is why attorneys must be on guard for pretextual or preposterous excuses and take good notes during jury selection. If, for example, after a Batson challenge, the opposing side gives a race-neutral reason such as that juror has a relative who was arrested, Grant said, you take good notes and you know if there are white potential jurors who had relatives who had been arrested but those jurors weren't struck.

It's also important for an attorney to know the community where a trial is being held. Grant represented an 18-year-old Black man charged with murder in Beaufort, S.C. When the jury turned out to be all white, Grant raised the challenge to the entire jury pool, which was only 4 to 5% Black when the community's Black population is 23%. The judge agreed with him. Ishmael Rivers was acquitted this spring.

The whole purpose of a Batson challenge is to promote confidence and integrity, Johnson said. When Black people are repeatedly knocked off juries, it creates distrust in the community because juries don’t fairly reflect the community. Having fair representation on juries also means it is important for all members of a community to show up for jury duty and not try to get out of it, Johnson said.

Johnson said the fact that many people were relieved after the jury convicted the McMichaels and Bryan shouldn't be a surprise. "Because of history … look at Trayvon Martin (shot to death in February 2012 by a self-style community safety officer who was acquitted). I could go on and on.”

The police officer who kneeled on George Floyd's neck May 25, 2020, in Minneapolis was convicted of murder this year. But the officers who shot and killed Breonna Taylor while exercising a no-knock warrant at her home March 13, 2020, were not charged.

There’s no track record of convictions of white defendants who kill Black victims. “That’s why there was a sense of relief,” he said.

Sea Stachura contributed to this report.

What's next

Gregory McMichael, his son Travis McMichael and neighbor William “Roddie” Bryan were convicted of murder and other charges the day before Thanksgiving. The judge delayed sentencing and a date has not yet been set. The federal trial for the three on hate crime charges is set to begin in Brunswick federal court Feb. 7.

This article originally appeared on Augusta Chronicle: Arbery killing: Intention, limitation of Batson challenge seen in trial