The selection of a nearly all-white jury in Georgia to decide the fate of three men charged with murder for chasing and killing Ahmaud Arbery last year has forced concerns about racial fairness to the forefront of the case before the trial even begins.
The trial of the white men who spotted Arbery running in their neighbourhood and shot the 25-year-old Black man has become part of the broader reckoning about racial injustice in the U.S. legal system and whether Black victims get treated fairly.
Arbery's family and their supporters had their faith rattled Wednesday when two and a half weeks of jury selection ended with the judge agreeing to seat a jury of 11 whites and one Black man.
Superior Court Judge Timothy Walmsley plans to have the jury sworn in Friday to hear opening statements from lawyers on both sides. He intends to seat 15 people total: a main jury of 12 plus three alternates.
The total number shrank by one Thursday when the judge dismissed a white woman from the main jury panel, citing medical reasons. The race of the alternate juror who replaced her was not known. The judge has not given the races of the alternate jurors, and they weren't asked their race in court during jury selection.
But the judge said he agreed with prosecutors that the exclusion of other Black potential jurors appeared to be "intentional discrimination." He also said Georgia law limited his authority to intervene after defence attorneys stated nonracial reasons for cutting those jurors.
"It's probably clearer than before that race is going to be at the forefront of this case and will probably even play a big role in jury deliberations" at the end of the trial, said Page Pate, a Georgia criminal defence attorney who isn't involved in the case.
No arrests until video leaked
On Feb. 23, 2020, Greg McMichael and his adult son, Travis McMichael, armed themselves and pursued Arbery in a pickup truck, as he ran in the Satilla Shores subdivision just outside the port city of Brunswick, Ga. A neighbour, William "Roddie" Bryan, joined the chase in his own truck and took cellphone video of Travis McMichael shooting Arbery three times with a shotgun.
No arrests were made until the graphic video of the shooting leaked online more than two months later.
The Georgia Bureau of Investigation took over the case from local police and the McMichaels and Bryan were soon jailed on charges of murder and other felony counts.
Defence attorneys say the men committed no crimes. They say Arbery had been recorded by security cameras inside a nearby house under construction and was suspected of stealing. Greg McMichael told police his son opened fire in self-defence after Arbery attacked with his fists and grappled for Travis McMichael's shotgun.
Black potential jurors seemed to face greater scrutiny than whites as they were questioned by lawyers during jury selection, and the resulting jury likely favours the defence, said Pate, who practices in Atlanta and Brunswick.
"I'm not saying it's intentionally discriminatory, or if it was just the dynamic of this case, but it was a lot harder to get on this jury if you were Black than if you were white," he said.
Many potential jurors expressed strong opinions about Arbery's killing and their beliefs that race played a role. Some knew Arbery or other members of his family. Defence attorneys cited those reasons for striking Black people from the jury pool.
Unconstitutional to exclude jurors based on race
The judge said the group of 48 people used to narrow down the final jury had included 12 potential jurors who were Black. Prosecutors were allowed to strike a dozen people from the jury pool and defence lawyers got to cut 24, for virtually any reason save one exception: The U.S. Supreme Court has held that it is unconstitutional to exclude potential jurors based solely on race or ethnicity.
"It's outrageous that Black jurors were intentionally excluded to create such an imbalanced jury," Ben Crump, an attorney for Arbery's father, Marcus Arbery Sr., said in a statement Thursday.
Arbery's mother, Wanda Cooper-Jones, left the courthouse Wednesday saying she remained confident the jury would "make the right decision." But she also said she was "very shocked" that there was only one Black juror on the panel.
"It's frustrating for a family that just wants a fair day in court without racial bias, but it's built into our system," said Lee Merritt, an attorney for Cooper-Jones who has sat with her in court.
Jurors say they are open-minded
Most of the jurors among the final 15 had previously told attorneys that they had seen the video, and many had read news stories about the case. All said they could keep an open mind during the trial.
"I don't think the video is the whole story," said one juror, a woman who works in retail and said she didn't know enough to form an opinion about the case.
Another juror, a retired government employee, described a conversation about the shooting with her husband as being "probably something that was like, 'That's too bad that happened.' "
Other jurors expressed stronger reactions to Arbery's death. One young woman called the cellphone video of the shooting "obscene," saying: "there's no reason someone should ever have to see someone else die."
An Air Force veteran who made the final jury panel said it was his impression that Greg McMichael was "stalking" Arbery. Another juror, a woman who works with volunteers, told lawyers she was somewhat "fearful" of the defendants, adding: "They're driving around with a gun!"
A railroad worker on the jury said he could fairly consider whether Travis McMichael shot Arbery in self-defense, though he also noted Arbery was unarmed.
"He didn't have no gun or nothing and he was by himself," the juror said of Arbery. "It was three persons who attacked one and no gun."
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