www.nytimes.com/2021/10/29/opinion/amy-coney-barrett-supreme-court-abortion.html
Month: October 2021
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Notes Podcast “The Breakdown”
- “All of us have a right to be skeptical” about the trial of the men who killed Ahmaud Arbery.
- The three men are on trial in huge part because of the pressure that was brought to bear on Georgia, the governor, the AG, the GBI and others to make sure that they were arrested and made these people accountable.
- “They (the state) had no plan to do that until we put the pressure on them.”
- King notes the appointment of an outside prosecutor (a Republican) “I believe we have an ally in the prosecution…”
- Over 1000 potential jurors were called.
- There are a lot of factors that strike black people from jury pools before they even get to the process of being questioned at the courthouse.
- The jury pool is selected with software that is supposed to make the process more random. Note: The public has no access to that software or ability to judge the reliability and validity of that software.
- African Americans are so “heavily policed, so heavily prosecuted” in Brunswick that even when Ahmaud Arbery was murdered, the system treated Ahmaud Arbery like the criminal.
- Note: You can see this overpolicing in the body cam video of the police officer who questioned Ahmaud Arbery (several years ago) when he was doing nothing but sitting in his car listening to music. The officers then used the fact that Arbery felt he was being harassed (which he was), and got angry about it, as an excuse for escalating the situation. The officer escalated the situation while repeating over and over again that he wasn’t trying to escalate the situation. When this officer testified in pre-trial hearings, he wore full body gear, and tried to make it seem that Arbery had acted irrationally. I would have reacted the same way, but police would have never questioned me if I were sitting in my car listening to music.
- If you are caught up in the criminal justice system you are not even in the jury pool.
- Also, it is much more difficult for African Americans to commit to being on juries. They are less likely to be able to take time off work, weather the economic problems caused by being away from work and family responsibilities.
- The attorneys want to select people who say they don’t have a strong opinion about the case.
- “If you live in Brunswick and you don’t have a strong opinion about this case, it tells me a whole lot about you.”
- Note: One of the first questions asked by Sheffield (lawyer for Travis McMichael) is whether the potential jurors have a “negative” opinion of either of the three.
- “It’s going to be difficult to find somebody black, or white with any social conscience, who isn’t gravely concerned about this case.”
- Note: Again, Sheffield, for the defense attorneys, asks the jurors if they have supported “in any way” the social justice movement. This is an extraordinarily broad question. It implies that “the social justice movement” is a unified, single movement. It also covers so many different issues and movements. This reinforces King’s point. If jurors who have “in any way” supported social justice movements are stricken from the jury, who do we have left?
- If the trial lawyers are only trying to find people who are ambivalent. “I’m concerned.”
- Who doesn’t have an opinion about this case?
- All it takes is one juror to hold out to create a hung jury.
- The defense if giving jurors the Citizen’s arrest argument to hang their hats on.
- Note: After all the pressure that was put on the state of Georgia after the video was released, Brian Kamp signed a law banning citizen’s arrests.
- But, the Citizen’s arrest law was in effect when the three men hunted down Arbery and killed him in the street.
- Even under the law, the three men were “chasing him through a neighborhood with their guns out until they exhausted Ahmaud and then they murdered him.”
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https://podcasts.apple.com/us/podcast/the-breakdown-with-shaun-king/id1457725100
This is an interesting podcast discussion of the problems with jury selection in the Ahmaud Arbery case.
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Travis McMichael holding his gun after he has shot Ahmaud Arbery. Arbery is stumbling toward his death. First responders didn’t even initially check to see if he was alive I’ve spent a week and a half grumbling and grinding my teeth about the jury selection in the Ahmaud Arbery case.
Defense attorneys in this case wanted to shield the questioning of the jurors from the public entirely. The judge, in what is called a “compromise” ruling, allowed two reporters at the time to listen in on individual questioning of potential jurors and take “notes.” There is no transcript that is released to the public and as far as I know the general public is not allowed to sit in the courtroom and listen. *
Jurors are being called in 20 at the time. First they are asked general questions by the Judge, the state prosecutor and each of the three defense teams. Then, jurors are moved to another room and individual jurors are questioned out of hearing of the other jurors.
It is this last part of jury selection that the judge decided to shield from the public and only allow reporters (two at the time) to sit in and listen to.
These reporters supposedly release their notes not to the general public, but to other journalists. So, what we the public have been left with every day are a few quotes from the potential jurors and some demographic information, that a couple of reporters think are important.
This is completely unhelpful for those of us in the public who feel we have a Constitutional right to observe pubic trials, especially ones this important and controversial.
As Shaun King notes in “The Breakdown” podcast, (10/18/21) there are a lot of reasons to worry about the jury selection process, especially in a state like Georgia in a rural area like Glynn County.
As King notes, blacks are eliminated from the jury pool before we ever get to a trial. For various reasons (such as involvement with the criminal justice system) many are not included on voter roles at all and therefore don’t appear on the lists of people who can serve as potential jurors.
Compound this with the questions defense attorneys are being allowed to ask potential jurors (Do you support the Black Lives Movement in any way?) and anyone with a brain would be concerned with black jurors (or even white jurors who have a social justice consciousness) who will make it onto the jury.
The questions about supporting (in any way) the Black Lives Movement, or what defense attorneys are calling the “social justice movement” have been allowed by the judge, again in what is being called a “compromise.” Jurors are not being asked if they voted for Trump or support Trump “in any way.”
And, remember these are questions that are being asked in the general questioning. We know about them. We do no know the questions nor the answers being allowed in the individual juror questioning.
Trials are public for a reason. Democracy works when the public can oversee the workings of government and the court system. We aren’t supposed to have secret trials in this country, but if jury selection can be conducted in secret, jury selection one of the most important parts of any trial, then the public can’t perform an oversight function.
In fact, the jurors in this trial are being treated as if they are flowers that might wilt and die at any moment. The media keeps talking about preserving their “anonymity.” We aren’t supposed to have anonymous jurors.
In the little town where I grew up, people were called for jury duty and were questioned. They answered supposedly as truthfully as they could. If they were embarrassed about their answers, they were embarrassed and needed to do some thinking about why they were embarrassed. Other members of the community were allowed to think badly about them for their answers. Members of the community had a right not to shop at their stores, or hire them for jobs depending on their answers. This is what it is like to participate in a community. If people are that embarrassed about their views then they damn well better think about asking themselves why.
People, citizens in a democratic society should be willing to stand up and say what they believe and take the consequences. That is what being a member of the community is about. We are a community, not a collection of secretive, units, obsessed with keeping our opinions and attitudes hidden from others. This is absurd.
But, the officials running this trial seem to think that jurors are fragile flowers who must be protected from giving an “unpopular” (not to say unjust) verdict. Defense attorneys have moved to have the few people outside the court every day removed across the street in a “First Amendment Free” zone. Folks, give me a break here, the United States is a “First Amendment Free” zone, not some parking lot designated as such by the Glynn County Sheriff’s office.
(Don’t get me started on Glynn County.)
To add to the problems caused by almost completely excluding the public from the jury questioning, for the past two days, the microphones in the court room have been turned down so low that even most of the general questioning cannot be understood. For the past two days of jury selection when the judge or the attorneys turn their heads a fraction of an inch to the left or right, or look down, there is unintelligible sound. No phone calls to the Clerk of the Court have been returned.
It might be useful to remember here that these three men are being tried by a county system that tried to cover up the killing of Ahmaud Arbery. A Glynn County police officer went to Mr. Arbery’s home and told his mother that he had been killed in the process of a burglary (in the middle of the afternoon). There were no arrests for two months after the killing and those only occurred because one of the perpetrators was stupid enough to think that releasing the video of the killing would help him. The GBI only took the case away from the County after this video went viral and the state of Georgia looked so racist and corrupt that they were shamed into taking the case away from Glynn County.
A few other facts you might want to remember when considering that Glynn County is trying these men:
- The County DA in charge when the killing took place was such a close friend of one of the men (Gregory McMichaels) that he phoned her at the scene and told her (on a first name basis) that he needed advice.
- The Glynn County Police Department did not make any arrests at the scene.
- First responders (from the GlynnCounty Police) did not even offer assistance or try to see if Arbery was still alive when they first arrived.
- Officers repeatedly reassured the assailants that everything was alright and that they (the officers) could “only imagine” the terrible situation the men had faced.
- The DA (jackie Johnson, for whom Greg McMichaels had worked) recused herself and immediately phoned another DA and had him offer an opinion about the shooting to the police.
- This DA (George Barnhill, Sr.) told the Glynn County police that no arrests were necessary since the men had acted in self defense.
- Then when the case was taken over by the GBI, Barnhill, Sr. was given the case. Johnson did not tell the state attorney (who appointed Barnhill) that she had talked to Barnhill or that he had issued a letter absolving the men of responsibility.
- Johnson has denied recommending Barnhill, Sr. to the office of the State Attorney.
- Evidently when Barnhill, Sr. took the case, he also did not tell the state attorney that he had issued the letter.
- The Glynn County Police Department has a history of corruption and brutality.
- Their Drugs Unit was disbanded, the police chief was removed and indicted. They also killed a young woman in a hail of bullets because she did not immediately stop her car when they ordered her to do so.
- The Glynn County Police continued to employ a man who was actively stalking a former partner and bragging about it to other officers.
- This officer went to the former partner’s home, murdered her and her friend and then killed himself.
- This is just what I know and I don’t keep close track of the goings on in Glynn County.
- A new police chief has just been hired by the Glynn County Police who lied on his application for the job.
- Members of the Glynn County Commission (voted out of office recently) prevented the citizens of Glynn County from even having the opportunity to vote on whether to disband the Glynn County Police.
- One of the Commissioners who was central in preventing this vote from taking place was quoted in the media as saying “That’s not how it works.”
- No, that’s not how it works. Citizens of Glynn County aren’t allowed to control their own police department.
The trial of the men who killed Ahmaud Arbery hasn’t even started yet and I am furious, incensed, disgusted by the way in which the trial is being handled by the Judge, Glynn County and the media.
*Phone calls to the Glynn County Clerk of the Court to complain about the microphone levels have not been returned.
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25 October 2021
Ahmaud Arbery Case: Jury Selecti
One of the most infuriating parts of trying to cover the trial of the three men who killed Ahmaud Arbery is that individual questioning of the jurors is shielded from the public.
When each panel of 20 potential jurors is called before the court, lawyers ask general questions, asking the potential jurors to raise their hand if they agree or disagree with a particular statement. If you are lucky you can catch this part of the trial on Court TV, or a streaming service.
Then, potential jurors in this pool are taken to another room individually and questioned outside the hearing of the other potential jurors. The problem is that the public has no access to this second, individual questioning. Reporters (2 at the time) are allowed to witness this part of the trial, but they are only taking “notes.” This has resulted in a few quotes and a little bit of demographic information for some of the jurors. So, the reporters are not making a transcript, they are taking “notes,” jotting down facts they deem important. As far as I know, the public does not have access to the notes, only other reporters.
So, one of the most important parts of the trial, the selection of the jury, is being essentially held in private outside the view of the public.
At the beginning of the jury selection, Glynn County, Ga, the county where the trial is being held, made a decision to hold the trial in a normal courtroom in the downtown courthouse. This courtroom is not large enough for a high profile trial. And, because of social distancing, the county has limited the number of people in the courtroom.
Defense attorneys tried to make the entire jury questioning process secret and held away from the public. Reports are that the judge in the case made a “compromise” by allowing reporters, two at the time, to sit in the courtroom while individual juror questioning is being conducted.
The reporters are rotated in and out of the courtroom so no reporter is witnessing even an entire day of questioning. I am guessing that they are limited to a couple of hours at the time.
This arrangement serves the interests of journalists, since they can file stories as if they were witnessing the process, and they only have to report a small snippet of what is going on since that’s all they are witnessing and all they are allowed in terms of air time.
It does not, however, serve the interests of the public. First, because reporters are being treated as if this is a favor, they are going to err on the side of not reporting anything they think might get them kicked out of doing the coverage. Second, they are witnessing only a small snippet of the trial and cannot therefore form impressions of trends that may be relevant had they been allowed to witness the entire day. Third, they are either not allowed or not reporting any information about body language or facial reactions. One of the jury experts on Court TV noted that the answers of the jurors were not nearly as important to her as were the pauses, the body language, and the facial expressions of jurors.
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Ahmaud Arbery Case,
Day Five, 10/22/21
Friday Morning Reflections: Jury Selection
Few people seem concerned with the private questioning, away from public scrutiny, that is going on in the trial of the men who abducted and shot Ahmaud Arbery. I think more people should be concerned.
Trials are public for a reason. Trials are public so that the members of the community can exercise an oversight function. There are not supposed to be secret trials in this country, but that is exactly what it going on in Brunswick, Georgia.
Because of the rulings of the judge in this case, potential jurors are being questioned collectively. A panel of 20 potential jurors are called in and asked to hold up their juror number in response to questions from attorneys. After that, jurors are separated from the rest of the people in the pool and questioned individually by the attorneys.
The problem here is that the judge seems to feel that these jurors deserve to be selected (or deselected) for jury duty in a process that is removed from public scrutiny.
Defense attorneys moved to make the entire process secret, but after objections the judge gave what has been described as a “compromise” ruling. The compromise is that two reporters at a time can sit in the room where individual questioning is going on and take “notes.”
I have no idea how long each set of reporters is allowed to sit in the courtroom before they are rotated out and replaced by others, but it can’t be long given the notoriety of the case and the number of media outlets that seem to be present.
Last Saturday, I attended a rally for Ahmaud Arbery at the courthouse. There were approximately 75 – 100 people there. A large proportion of those in attendance were media.
So, the judge’s ruling means that in the first phase of questioning, the part where the jurors are asked to agree or disagree with certain statements by holding up their juror cards, the public can only see the attorneys and hear the juror number of the responding jurors being read out.
For example: “Do you support the Black Lives Matter movement?” “241, 242, 255, etc.” “Very good.”
We cannot see the jurors. I am not completely happy with that situation but I can live with it.
During the second part of jury selection, however, the part where the attorneys question the juror individually (out of hearing of the other jurors) the public is excluded.
I assume it was a ruling by the judge that allowed Glynn County to stipulate that only persons involved with the case can enter the courtroom and therefore witness the proceedings. This means that the general public is excluded from this part of the trial and has to rely on the “notes” of a couple of reporters. And remember, these notes are not a transcript.
They are just that, notes, fragments of statements considered relevant by a couple of reporters sitting in a courtroom for a few minutes and not reporting on the entire day of juror questioning. This might very well make the press very happy. Each reporter gets to file a story as if s/he was in the courtroom, but doesn’t have to do the work of sitting in on the whole day of jury selection. It does not, however, serve the public interest.
Trials are supposed to be public. As the incomparable Elie Mystal told me yesterday (yes, he actually did tweet me) the pubic right to view the process applies only to the trial, not the pretrial process. But, that means that one of the most important parts of the trial, jury selection, is shielded from public scrutiny.
Perhaps most people are not interested in witnessing jury selection. Court TV, which purports to be covering the trial, is not even covering all of the general questioning. I assume that attorneys for the media did not challenge the two-reporter compromise ruling.
Yesterday, an attorney for certain media outlets challenged a gag rule the judge had issued which prevents the attorneys from responding to certain questions about the case. The media attorney argued that this would put a chill on what the attorneys said. He argued that the attorneys would err on the side of caution since it was unclear exactly what they were and were not allowed to discuss. I would guess this was exactly what the judge had in mind.
The media attorney argued that usually when such gag orders are given, they are accompanied by a detailed explanation of the case law on which they are based and clear instructions of what is and what is not allowed.
The judge seemed to react with impatience to the media attorney’s arguments. The judge informed the court that (essentially) he was a busy man in the middle of a trial (in which the lawyers were taking a lot longer to question potential jurors than he wanted them to, although he was determined to take all the time needed, but also that they should hurry the f… up). He said, somewhat ironically, that as soon as he had time to explain exactly what he was talking about, he would.
Meanwhile, the attorneys are under the badly defined gag order.
This trial is raising a lot of questions.
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Brunswick, Georgia
Wednesday, 10/20/21
Already, on day three, I have a lot of questions about the way in which the Ahmaud Arbery case is being tried.
If my understanding is correct, no members of the public are allowed to attend the trial. Only people involved with the case are allowed in the courtroom. This means that the community is excluded from participation.
In addition, all the potential jurors are being questioned privately, that is outside the hearing of the other jurors. Defense attorneys did not want the public to have access to the juror answers to the questions when they were questioned individually. The judge made a “compromise” and allowed two journalists in the room to take “notes.”
These “notes” are obviously not comprehensive. The reporters are not taking down a transcript. The public is then only hearing information about jury selection that is filtered through reporters. As of today, these “notes” supposedly released to other reporters have consisted of a few quotes and some numbers.
To make matters worse, the reporters are being rotated in and out, so there is no prolonged observation. This may please the reporters since each of them can file stories as if they were in the room, but it does not serve the public interest since each reporter is only observing a tiny snippet of the questioning.
To me, this system is insane.
Glynn County, Georgia has chosen to hold the trial in a regular courtroom completely ignoring the interest in and the importance of this case. Then, because of social distancing, they are only allowing people involved in the case to attend. This means that the community is prevented from performing the oversight function it is meant to perform during a public trial. There is a reason trials are public, so the public can witness and monitor and alert the rest of the community when something is going wrong.
We do not have that in the trial of the men who hunted down and shot Ahmaud Arbery.
I also do not understand how jury selection can be carried out in secret. I can understand if a particular juror asks to speak in some completely private forum, but to allow all the jurors to be questioned in private, not seen and not heard by the rest of the community just seems wrong.
Jury selection is one of the most important parts of a trial and the community is being prevented from monitoring this phase of the trial.
In an interview on Court TV, one of the criminal defense attorneys said that he was always less concerned with what a particular juror said than he was with the facial expression and the body language of the juror answering. But, in this case, we have been denied access to that information entirely and we only have the answers given by the potential jurors through third, fourth and fifth parties.
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- Defense attorneys wanted to prevent the media from having access to the answers of potential jurors during the jury selection process.
- Since members of the public not involved in the case are not allowed in the courtroom, this essentially would prevent the public from knowing about the jury selection process.
- The judge “compromised” by allowing two reporters to take “notes” during the individual sequestered questioning of the potential jurors. These notes have consisted of almost nothing every day.
- Trials are supposed to be public. Public scrutiny of the trial process is an essential check on the process. Glynn County, however, has held the trial in a normal courtroom, completely ignoring the importance of the case.
- Court TV is supposed to be line-streaming the trial, but after the first day of jury selection, they have moved on to other trials.
- This situation effectively blocks the public from examining one of the most important parts of the trial.
- Citizens in a democratic society should not be shielded from answering questions when they serve on a jury. Citizens should not be afraid or ashamed of answering questions in public about their views and opinions.
- One criminal defense lawyer on Court TV commented that she felt questions like “Do you think displaying the former state flag of Georgia is racist” were “lazy.” An attorney from Georgia maintained that lawyers in Georgia have to start with a general question and then go onto a specific question in individual questioning.
- When I used to teach, I used an article entitled “Is it Possible to Pick a non-racist Jury?” The jest of the article was that asking blunt questions like “Do you consider this or that racist” were not useful. A much more useful way of getting at racial prejudices was to ask, for example, if jurors had ever had a member of a racial minority in their house.
- On Tuesday, the state objected to the defense attorney for Travis McMichael using the fact that T. McMichael had worked for the Coast Guard in asking potential jurors if they knew Travis. The Assistant DA argued that the attorney was trying to introduce character evidence into the jury selection process.
- A criminal defense lawyer interviewed later in the day pointed out that Assistant DA, Dunikowski, is normally an appellate lawyer and she is particularly sensitive to protecting the process from later appeals.
- While I am sure that attorneys regularly introduce their clients with their arm slung over their shoulder, this seemed particularly hokey yesterday when it was done. Travis McMichael stood up (cleaned up to look like a law clerk) and the attorney stood next to him hugging him like he was Travis’ father. Maybe people fall for that kind of cheap showmanship, but I doubt it.
- My impression of Sheffield is that he is an expert at introducing minute signals to the jury that slide under the level of something that would be successfully objected to, but which are nevertheless intended to leave a message.
- For example, when Sheffield was questioning potential jurors yesterday, he would add a comment after he got a show of hands. “Very good, thank you.” He would say after the response to some questions and not others.
- This may seem like a small point, and I am sure he would argue that he was just trying to establish rapport with the jury pool, but those affirmative responses can influence a juror.
- When I was a teenager, the brother of a friend was a graduate student and he sat each of us down individually and asked questions about an interaction between two people. He would respond positively (like “Very good, thank you.”) to responses to some questions but remain silent after the responses to other questions.
- When he had finished the interview he asked if I knew what he was doing. “You were responding positively when I answered questions supporting actor A, but not respond when I gave answers supporting actor B. this was in fact exactly what he was doing.
- The point of the experiment was to demonstrate that psychiatrists and psychologists could mold the answers of their clients by small positive or negative responses.
- Sheffield asked if there were any negative feelings about criminal defense lawyers and no one raised their hands, he said: “This is very encouraging.”
- I don’t see the need for Sheffield to make any evaluative comment in response to the juror responses. But, I also don’t see the state objecting to it. It is just too subtle.
- Assistant DA Dobronski was already getting criticism for objecting to the identification of Travis McMichael as a former member of the Coast Goard. One of the attorneys on Court TV noted that repeated objections to things this small would annoy the judge and slow down the trial.
- The judge, while repeatedly claiming that he will take all the time needed, also repeatedly reminds people that they need to speed up.
- He had initially thought that the attorneys could get through 40 potential jurors a day. They have gotten through less than 20.
The Attorneys
- The Assistant DA who is doing the jury selection had concerns about biases against the prosecutors because they came from outside of Glynn County.
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Ahmaud Arbery Case: Day 2
Blog #6
Jury Selection
It was reported that the Court in Brunswick, Georgia was going to go into the night selecting jurors, but instead the court stopped jury selection around 6 PM.
Today, jury selection continues with general questioning by the Prosecutor, Dunikoski. Dunikoski and the other prosecutors on the team are not from Glynn County where Ahmaud Arbery was killed. They are instead from Cobb County. Dunikoski seemed concerned yesterday that jurors would hold prosecutors responsible for corruption cases in and around Atlanta. The judge, however, did not see the benefit of introducing that subject into the jury questioning.
Dunikoski did, however today, ask the prospective jurors if they had any negative feelings or weren’t going to be able to be fair because the prosecution team was not from Glynn County. No one raised their hands.
Jurors were asked:
- If they were law enforcement personnel.
- If they knew or were related to the present DA in Glynn County.
- If they knew or were related to the former DA in Glynn County.
- Note: The former DA was indicted for her handling of the Ahmaud Arbery case and it is widely believed that she lost reelection because of this.
- Whether they knew any of the defendants (several did)
- Whether they had served on a jury and whether that jury reached a verdict.
- Whether they had had negative experiences with law enforcement (one did)
- Whether they had had bad experiences with prosecutors (the same juror had)
- Whether they had been arrested, or prosecuted for a crime (three had)
- Whether they had a close friend or relative who had been arrested, prosecuted or convicted of a crime. (eight had)
- Whether they had been a victim of a burglary or a home invasion (five had)
- Whether they had given a statement to law enforcement (gone to the police department and given a statement) (four had)
- Whether they owned a gun (11 did)
- Whether they had carried a gun as part of their work (four)
- Whether they had lived in Glynn County for less than five years.
- The DA then went through a list of witnesses and asked if the potential jurors knew any of them.
The jury pool was asked whether because of religious or moral reasons they could not pass judgement on another person. Three raised their hands.
Five said they belonged to no organization, religious or other.
When asked if they had ever been arrested and treated unfairly, two jurors raised their hands.
Note: Juror 69 raised his hand in a number of these questions.
Law, Power and Justice 