In the coming weeks, a panel of 12 jurors will have to decide if Gregory McMichael, Travis McMichael, and William “Roddie” Bryan acted in self-defense when they cornered Ahmaud Arbery with their trucks before shooting him and leaving him to bleed out in the street. From the very start, the racial dynamics of the shooting—the fact that three white men killed an unarmed Black man and walked free for months—have raised questions about if the trial would be fair or unjustly tilted in favor of the white defendants.
Roughly one week in, the notion of fairness is already in peril. Eleven of the 12 jurors are white. Only one is Black. “This court has found that there appears to be intentional discrimination,” said Georgia trial court Judge Timothy Walmsley, who allowed defense lawyers to use their peremptory challenges to dismiss eight of nine African Americans during jury selection. Despite the intentional discrimination, Walmsley refused to reseat any of the Black jurors. How is it possible to acknowledge intentional discrimination but allow the trial to proceed as usual? Unlike challenges for cause that require lawyers to state reasons for striking prospective jurors, peremptory challenges allow each side in a criminal case to excuse potential jurors for any reasons or for no reasons at all, as long as they have not been removed because of their race, gender, sexual orientation, or religion. The number of “peremptories” varies from state to state. In Georgia, each defendant accused of a felony has nine; the prosecution gets the same number.
How does one detect if a lawyer has a discriminatory motive when using a peremptory challenge? There’s the rub. In 1986, the U.S. Supreme Court, in the case of Batson v. Kentucky, issued a ruling placing the burden on trial court judges to determine if discrimination is the motivation for such challenges. Under Batson, when one side contends that the peremptory challenge is racially motivated or motivated by other types of discrimination, the other side must offer to the judge a “race-neutral” explanation for removing the prospective juror. It is left to the judge to determine if the explanation is plausible. And how has that worked out? Not well.
More than 30 years after Batson, trial judges continue to accept nonsensical reasons from lawyers utilizing peremptory challenges to exclude African Americans from juries. A prosecutor in Missouri struck two Black men from a jury, explaining, “Those are the only two people on the jury with facial hair. I don’t like the way they looked.” The trial judge found the explanation to be race-neutral. A Pennsylvania lawyer used a peremptory challenge against an East Indian man, explaining, “I feel that he is probably Hindu in religion and Hindus tend, in my experience … to have feelings a good bit different than ours about all sorts of things … and I can be more certain with an American juror, and that was my primary reason for striking him. He may have religious beliefs that may affect his thinking.” Once again, the trial judge deemed the reason to be race-neutral.
The racial composition of juries is so significant that prosecutors have even shared lessons for how to exploit the rules. In 2001, prosecutors in North Carolina were offered a seminar about how to come up with race-neutral explanations should their peremptory challenges come under scrutiny. The seminar included a startling handout titled “Batson Justifications: Articulating Juror Negatives” that instructed prosecutors how to portray behaviors stereotypically associated with African Americans. Among the list of “race-neutral” excuses were “attire may show lack of respect for the system; rebelliousness” and “hairstyle may mean resistance to authority” and “arms folded, air of defiance, lack of eye contact and obvious boredom.”
Even though the peremptories in the Arbery murder trial resulted in a practically all-white jury in a county where Blacks constitute nearly 30 percent of the population, and even though Walmsey deemed the use of those peremptories to constitute intentional racial discrimination, Walmsley threw up his hands and accepted the explanations of the defense attorneys’ peremptory challenges as race-neutral. His rationale? “In the state of Georgia, all the defense needs to do is provide that legitimate, nondiscriminatory, clear, reasonably specific and related reason” for a strike. Simply mouthing “race-neutral” words will suffice.
A Supreme Court case from the early 2000s provides a small snapshot of the pervasiveness of racial discrimination as a result of peremptory challenges. In his concurrence in Miller-El v. Dretke, which affirmed Thomas Joe Miller-El’s appeal after prosecutors in his murder cases struck 91 percent of prospective Black jurors, Justice Stephen Breyer cited several damning statistics. Prosecutors in Philadelphia struck 51 percent of Black jurors and only 26 percent of non-Black jurors between 1981 and 1997, while Philadelphia defense attorneys struck 26 percent of Black jurors and 54 percent of non-Black jurors. The numbers were even worse in one North Carolina county where 71 percent of Black jurors were excused by the prosecution and 81 percent of white jurors were excused by the defense.
The question of race and neutrality in jury representation has prompted some states to look for ways to limit the use of supposedly race-neutral reasons for striking jurors. For example, in California, the recently enacted Racial Justice Act places the onus on judges to weed out racism in criminal proceedings by permitting evidentiary hearings when racial bias is claimed in the exercise of peremptory challenges. Moreover, the act gives judges the authority to remedy the influence of racial bias by reinstating improperly excused jurors. In Connecticut last year, the Supreme Court convened a “Jury Selection Task Force” to improve the selection process and ensure jurors are “drawn from a fair cross section of the community that is representative of its diversity.” More, the working group was tasked with finding new standards that “would eliminate Batson’s requirement of purposeful discrimination.” Washington state has also enacted measures to limit Batson. In 2018, the state Supreme Court introduced a rule forcing the court to evaluate these challenges by asking if “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.” The rule even defines said observer as someone who is aware of “implicit, institutional, and unconscious biases.”
Three years after Associate U.S. Supreme Court Justice Thurgood Marshall decried racial bias in peremptory challenges and called for their elimination in his Batson dissent, he doubled down on his claims. In a separate case, Marshall wrote that peremptories are “perhaps the greatest embarrassment in the administration of our criminal justice system.” They are, and they will continue to be, an embarrassment, so long as trial court judges rubber-stamp these “race-neutral” explanations. More than three decades later, his words continue to ring true. Unfortunately, it is too late to remedy the mistakes made in the trial of Bryan and the McMichael duo. The trial is now in its eighth day. But Georgia should follow California and the other states’ lead by enacting legislation or courtroom policies to combat race-neutral explanations, ensuring fundamental fairness in the courtroom.