Ahmaud Arbery: Jury Selection

Defense Attorney, Kevin Gough

Blog Ahmaud Arbery 11/1/21

There are several blog posts that need to be written about Kevin Gough, the defense attorney for William Bryan.  Bryan is the man who joined in the chase of Ahmaud Arbery, tried to pin Arbery in with his (Bryan’s) truck, and actually at one point hit Arbery with the truck.  Bryan is also the man who videoed the incident and then through an attorney released the video because he thought it would help his case.

Gough has complained in open court for two weeks about the “protestors” outside the Courthouse in Glynn County, Georgia.  I have been to the courthouse several times in the past two weeks.  The most people I have seen at the courthouse were there for a march the weekend before jury selection.

On that occasion, 16 October, there were approximately 80 people gathered outside the courthouse.  Probably a third of them were media or County personnel.  There have been no loud, unruly demonstrations outside the courthouse.  For the most part, people are sitting in lawn chairs, talking and eating.

But, Gough, last week, seemed to believe that the jury pool was going to be tainted because those people were outside the court, and because an organization put up a banner with John Lewis’ picture on it, asking people to vote. 

When he put this matter before the judge, Chatham County Superior Court Judge Timothy R. Walmsley, Gough was told that if he wanted to curtail the First Amendment Rights of the people in front of the courthouse, to make a formal motion. 

Gough has also read before the court, statements made by the Arbery family and by the Arbery family attorney.  He is maintaining that these statements could have an effect on the jury. 

Then, Gough complained in court that there weren’t enough “good ole’ boys” or “six pack Joes” in the jury pool, people like his client, William Bryan.  Then, in an interview given to Court TV later, Gough explained the difficulty in defining exactly what the demographics of these “good old boys” or “six-pace Joes” were.  He then concluded the interview by saying that if you couldn’t define exactly who these jurors were, it wasn’t much use.  What?

I sincerely don’t know what Gough is trying to do with these antics.  The other two sets of defense attorneys seem to be trying to win the case using more conventional tactics.  I cannot see how these tactics will benefit Bryan, but I’m open to having it explained to me.

Ahmaud Arbery Jury Selection: Notes on the podcast “The Breakdown” with Shaun King

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.”

Ahmaud Arbery Case: Jury Selection

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.

Ahmaud Arbery: Jury Selection Notes

  • 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.
  •  

Ahmaud Arbery: Jury Selection

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.

Jury Selection: Ahmaud Arbery Case

Ahmaud Arbery Blog #5, Monday 18 October 2021

Approximately 1,000 people were called for jury duty in the Ahmaud Arbery case in Brunswick, Georgia.  Roughly 600 of them showed up on Monday when jury selection began.

During the first part of the day, the judge considered objections to juror questions.  The judge increased the number of peremptory strikes of both the defense and the prosecution.  In cases where there are multiple defendants, it is common for the judge to increase the number of peremptory strikes.  One lawyer on Court TV, however, commented that he thought it was unusual for the judge to give the prosecution additional strikes.

Defense attorneys tried to exclude the press from juror questioning entirely, but the judge allowed two reporters in the courtroom to take “notes” on jury pool members’ answers to questions. This means that the only access the community has to the answers of potential jurors is filtered through a third party. Because only people involved in the case are allowed in the courtroom, members of the community have no independent source for this information. The reporters are not making a transcript, only making “notes.”

According to these “notes,” one juror who was retired military was dismissed from the jury pool.  This man said that he had a negative view of Gregory McMichael, but not evidently of Travis McMichael.  When asked why, he said that Greory McMichael seemed to him to be the “lead dog.”  This potential juror also said that he got the impression that Gregory McMichael was “stalking” Arbery. 

Another potential juror said that he had seen the video of the killing a number of times and that he was “sick of the video.”  He also said that he had talked about the video with his brothers, one of whom was also called for jury duty.  This same juror claimed not to care what happened in the case, but admitted that he had “said they were guilty.”