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.