Another recalled attending a church service when the pastor addressed Arbery’s death and emphasized that young Black men need to be careful.
Judge Timothy Walmsley had deemed both men capable of setting their feelings aside and giving three White defendants a fair trial. But defense lawyers said they had concerns about bias.
Using a standard court procedure called a peremptory strike, the attorneys eliminated all but one of the dozen Black people in the final jury pool this week, leaving a nearly all-White panel to weigh murder charges in a killing that many see as inseparable from race.
For some legal experts, the outcome laid bare long-standing problems with the high-stakes task of assembling a fair jury, particularly when the racial makeup could affect the trial’s outcome. Lawyers are not allowed to exclude jurors based on race, and the defense gave myriad reasons why they excluded certain jurors — statements that Arbery was “hunted like an animal,” connections to his family and supportive social media posts among them. But many tied back to prospective jurors’ experience as Black Americans.
Though they were once described in a 1968 Supreme Court ruling as “the conscience of the community,” juries in cases across the country often don’t reflect their communities.
Arbery was killed near Brunswick, a 16,200-population city that is 55 percent Black, according to the latest census. The surrounding county, from which the jurors were selected, is about 27 percent Black. Yet the sole Black juror in the trial represents about 8 percent of the jury’s makeup.
“They have excluded people whose experiences are probably most relevant in a case like this,” said Duke University law professor James Coleman Jr.
Walmsley, the judge, acknowledged Wednesday that the trial showcased the “limitations” of the court’s tools to examine claims of racial discrimination against potential jurors.
“In the state of Georgia, all the defense needs to do is provide that legitimate, nondiscriminatory, clear, reasonably specific and related reason” for a strike, he said.
Peremptory strikes are a set number of opportunities that the defense and prosecution have to exclude any juror. Stephen Bright, a law professor at Yale and Georgetown University, said that tool is largely to blame for why juries frequently underrepresent people of color.
“We still have all-White juries in communities all over the country, many with substantial African American populations, because of peremptory strikes,” said Bright, who has argued capital punishment cases before the Supreme Court. “This peremptory strike issue has been debated for years, and it still allows the exclusion of people in a grossly disproportionate way.”
Ben Crump, an attorney for Arbery’s family, said the exclusion of most Black jurors was “a cynical effort to help these coldblooded killers escape justice.”
But Laura Hogue, a lawyer for Gregory McMichael, who is accused of racially profiling Arbery, said in court Wednesday that jury selection in the widely known case has meant choices between “the lesser of two evils.” Many prospective jurors were already stricken “for cause” because they came in with strong beliefs about the case.
“We are stuck between a rock and hard place given the fact that the majority of the African American jurors that came in here were struck for cause immediately because of their firm opinions,” she said.
The reasons that lawyers can use for striking a juror can vary widely. Unlike eliminating someone “for cause” — a mechanism whereby lawyers can remove a juror under doubts of their impartiality — peremptory strikes need not have a reason and can end up being arbitrary or performative, critics say. In North Carolina, a training program for prosecutors provided a list of reasons prosecutors could use and reuse for striking a juror — a blueprint for race-neutral language to use in front of a judge that some groups said included items with clear racial subtexts, such as “inappropriate dress” and “attitude.”
Bright said that in a perfect world where there are no racial inequities, perhaps peremptory strikes would make more sense — with each side getting a chance to eliminate an equal number of jurors — but that in present-day reality, they skew the pool.
“Black people know they’re not a part of the jury system here because the prosecution always strikes them,” he said. “The White people know it too. The juries really don’t have that much credibility or legitimacy in the eyes of the community.”
The standard for proving that a lawyer’s peremptory strikes were racially biased was set in the 1986 Batson v. Kentucky Supreme Court case. It’s a high bar, resulting in few cases being overturned on such grounds, legal experts said.
Justice Thurgood Marshall dissented in that ruling, saying the court’s decision “will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.”
That recommendation came to fruition this year in Arizona, the first state to get rid of preemptory strikes. The change goes into effect in January.
In 2018, the Washington Supreme Court said judges should reject peremptory strikes if “an objective observer could view race or ethnicity as a factor,” not just if there was intentional discrimination. It also said striking a juror for distrusting law enforcement, living in a high-crime neighborhood or not being a native English speaker would no longer be allowed because such rationales “have been associated with improper discrimination.”
Another solution some advocacy groups recommend is lowering the number of peremptory strikes allowed per party, to make it harder to wipe out an entire race from the pool.
Though much of the focus for this trial has been on the peremptory strikes, Angie Setzer, senior attorney with the Equal Justice Initiative, said the reasons behind unrepresentative jury pools start well before the strikes.
“From beginning to end there are points along the way where Black people and people of color continue to be excluded from that process,” she said.
Even the initial list of potential jurors can skew White depending on what sources the court is culling names from, she said. For example, if the list relies on voter registration data and people of color have low voter turnout in the area, the list could start out with fewer people of color.
The summons can also create racial disparities, Setzer said. People of lower socioeconomic status tend to move more frequently, and so are less likely to have updated addresses in the system.
And then there’s the cost of child care and transportation, which can affect jurors’ ability to report for service.
“This is more than just about an outcome in a particular case,” Setzer said. “It’s about an individual citizen’s right not to be excluded from juries. It’s a hard fought-for right.”