The Arbery Jury Selection, Part Two: Wait, It's Supposedly Racist to Challenge *This* Juror?!?!

Today I want to continue my discussion, which I began on November 4, about the jury selection in the Ahmaud Arbery murder trial. I encountered a podcast with courtroom audio of the lawyers’ arguments regarding the dismissal of several jurors. Any sensible person would be shocked at the idea that racism was behind the peremptory challenges against these jurors.

Note that Big Media is not filled with “sensible” people.

In my November 4 post, I debunked the notion that the trial judge had ruled that there was “intentional discrimination” by the defense in the jury selection process. The courtroom audio I heard vindicates my position. The audio is contained in two episodes of the podcast Jury Duty, hosted by Kary Antholis (whom I have met and like). The episodes I refer to in this post are called The Killing of Ahmaud Arbery: Juror Exclusion On The Basis Of Race — Parts 1 and 2.

I learned quite a few things about Georgia law and the specific arguments in this case through listening to the audio. First: under Georgia law, the defense gets 24 peremptories in a murder case like this one, while the prosecution gets only 12. (That does not seem fair to me, and it’s not how we do it in California, but it is evidently how they do it in Georgia.) Here is how the racial breakdown went: the defense exercised 11 of its peremptories against black jurors and 13 of them against white jurors. Meanwhile—the prosecution, which argued that the defense had been racist in its exercise of peremptories because of the “math”—exercised each and every one of its peremptories against white people. (Odd that there seem to be zero Asians or Hispanics in the pool, but I guess that’s the local racial makeup.)

Query why the defense exercising 11 of 24 peremptories against black jurors is evidence of racism because of “math” . . . . but the prosecution using all of its peremptories against white jurors is somehow not racist according to similar “math.” Must be that New Math I keep hearing about!

Part 1 has an astounding description of one of the jurors the defense excused. As you read about this juror, keep in mind: the prosecution argued, with the media echoing the arguments, that this is a juror who was excused for racist reasons.

This juror, a black woman, had:

• Raised her hand to say “I feel like they’re guilty” about the defendants

• Said she had negative feelings against all three defendants

• Said Arbery had been shot because of his race and that the shooters had “almost got away with it”

• Participated in a bike ride the purpose of which had been to raise money for Arbery’s family to hire a lawyer

This is clearly not someone who could be fair. But after listing all of these facts demonstrating her obvious bias, the juror said she could be fair and judge the case based on the evidence in court. Apparently that was enough for the court to have refused a challenge for cause. (A challenge for cause asserts that the juror cannot be fair. If granted by the court, that challenge does not come out of either side’s allocation of peremptory challenges).

Every trial lawyer is familiar with this type of juror: a patently biased person who would never vote for you in a million years, but who mouths the magic words that they “can be fair” and put aside their prejudices. If the trial court believes them, it’s technically not a well-taken cause challenge—although it typically should be, and a good judge can see through such silly assertions. But while such a challenge might not pass muster for cause, it’s a damned good peremptory challenge.

What, you might ask, was the prosecution’s argument that the defense had excused this juror for racist reasons? They didn’t have one. Basically, they argued the challenge as if they were re-arguing the “for cause” issue. They portrayed the question as one of whether the juror could set aside her biases. Well, she said she could! That should end the inquiry! Their best alternative argument is that many white jurors said similar things and were not challenged. I have a hard time believing that the jury is packed with white jurors who participated in a bike ride for Arbery’s family, but the limited excerpts available in the podcast did not provide a definitive basis for my educated guess. Let’s put it this way: I’d wager a lot of money that I am right.

Part 2 describes other jurors stricken by the defense, including one whose fiancée’s social media showed her to be a strong supporter of the “Justice for Ahmaud” movement. In addition, research showed that this juror had lied about why he was no longer a police officer. The defense excused him.

Racism!

Another juror stricken by the defense had said that a citizen cannot do something to someone else because of what the other person had done to the citizen—a contention that obviously raises a red flag for a defense that intends to rely in part on a self-defense argument. The same juror said Arbery “did not deserve to die,” which certainly seems like prejudgment, since a killing in lawful self-defense is considered legally justified. (Note that I am not arguing that the defendants have a good self-defense argument; just that they intend to use that defense.) The defense excused this juror too.

Racism!!

Another juror said it seemed if Arbery was scared for his life and chose to defend himself against armed men. This juror said he had formed an opinion about the defendants’ guilt. He had said: “I guess they’re guilty of . . . it was an unfair situation” of “two against one” and so when asked if he thought the defendants were guilty he replied “so I guess you could say yes.” He had “liked” a “Run with ‘Maud” post in support of Arbery, of whom he said: “He was just out for a run and killed and that’s what led me to my opinion about” the defendants’ guilt. Unsurprisingly, the defense excused this fellow as well—after unsuccessfully trying to get him excused for cause.

Racism!!!

You get the point by now. The defense’s peremptories were absolutely justified by race-neutral reasons. It’s pretty remarkable that the defense had to justify these strikes.

But you’d never learn any of this reading most of Big Media.

That‘s why I’m here.