Comment: Nearly all-white jury for Black man’s death isn’t just

By Paul Butler / Special To The Washington Post

A jury of his “bubbas.” That’s what the defense lawyer for one of the three white men accused of murdering Ahmaud Arbery wanted for his client. Thanks to the judge, that’s pretty much the jury the defendants got, plus some bubba-ettes.

Arbery was the 25-year-old Black jogger who was shot three times in February 2020 after being chased through the streets of Brunswick, Ga., by William Bryan, along with Gregory McMichael and his son, Travis McMichael. During the pursuit, Bryan was said to have hit Arbery with the side of his truck.

The defendants claim that they were making a citizen’s arrest; that they suspected Arbery of burglary and that they killed him in self-defense when he tried to grab Travis McMichael’s gun. Video that Bryan recorded of the encounter went viral months after Arbery’s killing, and the three men were subsequently charged with murder, aggravated assault and false imprisonment.

Jury selection started last month. In a pretrial hearing last week, defense lawyer Kevin Gough expressed concern that “White males born in the South, over 40 years of age, without four-year college degrees, sometimes euphemistically known as ‘Bubba’ or ‘Joe Six Pack,’ seem to be significantly underrepresented” in the jury pool. The defense team has “a problem with that,” he said.

Now, a jury has been selected: 11 white people and one African American, plus four white alternates. Travis McMichael’s lawyer pronounced himself “very pleased,” adding that members of the defense team “truly believe” the jury will decide the case “in keeping with what we all understand justice to be about.”

There is only one Black juror because the defense removed 11 of the 12 Black prospective jurors, and Judge Timothy Walmsley let them get away with it.

During jury selection in a criminal trial, after the judge has found that potential jurors are qualified to sit on the case, the prosecution and defense each get a number of peremptory strikes that they can use to remove jurors for virtually any reason; except race and gender. After the defense team struck all but one of the Black potential jurors, prosecutors demanded the judge intervene.

Under Batson v. Kentucky, the defense team had to identify “race neutral” reasons for its removals. They claimed to have struck the Black prospective jurors because their statements during the selection process indicated that they couldn’t be objective. Never mind, apparently, that the judge had already certified that everyone in the final pool, including those 12, could evaluate the evidence fairly.

Walmsley said Wednesday that there appeared to be “intentional discrimination” by the defense lawyers but that their reasons for removing the prospective jurors who were Black were “race-neutral.” If you have a hard time understanding how both those findings could be true, don’t worry. It doesn’t make sense.

In such a high-profile case, virtually all the prospective jurors will have heard something about the evidence. It’s difficult — or should be — for any sentient human being to see the video of Arbery being hunted down and killed and not have an emotional reaction, or, in the age of Black Lives Matter, a political reaction, too. Thus, Juror 79 said she thinks that a “lot of time [police] profile Blacks.” Juror 195 told the court that she believed race played a factor in Arbery’s death. Juror 579 “maybe” had “big, long discussions” with her husband about the case.

But those jurors are all white, and the defense allowed them to remain. Apparently, it’s only the Black jurors whose awareness and humanity made them unfit to serve.

The Supreme Court has said that in cases involving race it is important — but not constitutionally required — to have Black people serve as jurors, to communicate to the community that everyone can have confidence in the verdict. Good judges understand that. In the trial of former Minneapolis police officer Derek Chauvin, Judge Peter A. Cahill carefully monitored jury selection to make sure a diverse group was empaneled. Minneapolis is about 20 percent Black, but half of the 12 jurors who considered whether Chauvin murdered George Floyd were people of color. Glynn County, Ga., where Arbery was killed, has a higher proportion of Black residents — nearly 27 percent — but this jury hardly reflects that diversity.

Walmsley complained that “this case has been difficult because race has been injected into this process.” True; but let’s be clear about how that happened. Gregory McMichael injected race into this case when he called 911 to report “a Black guy in a white T-shirt” running in the neighborhood. Travis McMichael injected race into this case when he said “f***ing n*****” immediately after firing three shots into Arbery. The people who injected race into this case are the three white men who chased Arbery, shot him and left him to bleed out.

One might have thought that a virtually all-white jury in a trial of white men accused of lynching a Black man was a relic of the Jim Crow past. But in Walmsley’s courtroom, everything Old South is new again.

Paul Butler, a Washington Post contributing columnist, writes on issues at the intersection of criminal justice and race. Butler is the Albert Brick Professor in Law at Georgetown University Law Center and an MSNBC legal analyst.