Arbery Case Day 7 Wrap-Up: Has the Defense Concluded That A Fair Jury Is Impossible?

Arbery Case Day 7 Wrap-Up: Has the Defense Concluded That A Fair Jury Is Impossible?

Fully 70% of today’s prospective jurors announced negative feelings towards the defendants, and 60% had already formed an opinion on their guilt.

Welcome back to our ongoing coverage of the Ahmaud Arbery case, in which defendants Greg McMichael, Travis McMichael, and William Bryan are being tried for murder and other charges in the shooting death of Ahmaud Arbery.  I am, of course, Attorney Andrew Branca, for Law of Self Defense.

Today the court proceeded with jury selection, or voir dire, in the case, with the goal of empaneling 12 jurors and 4 alternates.  Today was the seventh group of prospective jurors put through the selection process, with each group nominally numbering 20 people.

Key Findings of Today’s General Voir Dire

Of particular note from today’s general voir dire:

• A majority (60%) of the prospective jurors indicated that they had already formed an opinion about the guilt of the defendants.
• An even larger majority (70%) indicated they had formed negative feelings towards one or more of the defendants (usually, to all three defendants).
• Nearly half of (45%) had a relative or close friend in law enforcement.
• Ironically enough, the same proportion (45%) had also had a relative or close friend who had been arrested, prosecuted, or convicted of a serious crime.
• The same proportion (45%), again, believed that people of color were not treated fairly by the criminal justice system or, generally, police.
• Interestingly, that same proportion (45%) also indicated that they had some life event that would prevent them from giving their full attention to the trial—this is basically a “don’t pick me for jury duty” question.
• Fully 40% of the prospective jurors indicated that they were concerned that whatever verdict they might arrive at would cause them considerable strife in their lives, work, family, community, etc.

Today’s voir dire process continued in the usual manner, with general (group) voir dire being conducted in the jury assembly room, and subsequent individual voir dire conducted in the courtroom afterward (again, with no audio).  We’ll share our notes and video of the general voir dire proceedings with you here.

Has Defense Concluded That A Fair Jury Is Impossible?

Before I dive into that, however, there was a somewhat remarkable exchange between the defense teams, represented here by Travis McMichael’s Attorney Jason Sheffield speaking for all the defense counsel, on one side, and trial Judge Timothy Walmsley, on the other side.  I do have a video of that exchange embedded below.

The issue discussed is a bit “inside baseball” for non-lawyer readers, but I expect many of you will find it interesting, so I’ll dig into it here.

In a nutshell, Attorney Sheffield was asking Judge Walmsley to better assist the defense in ensuring there is a perfected record in this case.

A perfected record means that every facet of the proceedings is fully captured.  So, for example, if the parties come to some agreement about a particular witness or piece of evidence, that agreement will be recorded as part of the trial transcript, or one of the parties will write up a memorandum of understanding or offer of proof or some other document that explicitly captures that agreement in detail.

The goal is to strip away as much ambiguity from the trial proceedings as possible.

Similarly, it means that every decision made by the Judge is, ideally, accompanied by the legal rationale behind that decision.  In practice, it’s not uncommon for one party to object to some event at trial, and if the basis for the objection is obvious to all the lawyers in the room, the judge may simply sustain or overrule the objection without stating a particular reason.

Sometimes, however, there might be several legal rationales for sustaining or overruling an objection, and perhaps not all of them are of equal legal merit.  In those cases, if the judge doesn’t specify the legal rationale applied, no one can really be sure how or why that decision was made.

As a practical matter, generally, everyone involved in a trial would like a reasonably thorough record of the events taking place—it’s just good legal practice.

But there are also circumstances in which one party—in criminal cases, usually the defense—begins to become hypervigilant about having as perfect a record as possible.  Document every discussion, have a reason for every decision, encourage the judge to provide his specific legal rationale for every ruling.

And the primary circumstance for a defense lawyer being hypervigilant in securing as absolutely perfect and thorough a record as possible is when that lawyer has begun to believe that he’s almost certainly going to end up with a guilty verdict that will have to be appealed.

Because that’s where the real utility of a perfect trial record is realized—in the appellate courts.

The grounds for an appeal are generally some form of a claim that the trial judge made a legal error at trial.  That the trial judge improperly excluded or admitted some piece of evidence, or improperly excluded or admitted a legal argument, or particularly relevant in this case, that the trial judge made inadequate effort to ensure a fair and impartial jury for the trial.

When the appellate courts review such claims, however, they give enormous discretion to the decisions of the trial judge. Indeed, for the most part, a reversal of a conviction on any of these grounds will be granted only where the appellate court concludes that the trial judge “abused” the use of its discretion.

That’s a very high threshold that’s very difficult to achieve. And the burden is entirely on the appellant to achieve that threshold.

It’s worth remembering that while you are at trial you are presumed innocent, and the state must prove you guilty beyond a reasonable doubt—the state carries that heavy burden.

Once convicted, however, you are presumed guilty, and now you bear the heavy burden of reversing that presumption and that conviction.

That’s a burden that’s even harder to meet, however, if the trial record is sloppy.  If it’s unclear, for example, why a judge made a particular ruling, and there are both sound and unsound legal rationales for the ruling if the rationale used at trial is unstated the appellate court will presume the trial court applied the correct one.

If, on the other hand, the judge was asked to specify his legal rationale, and he applied an unsound rationale, then that’s arguably a legal error that could justify a reversal of the conviction, but you need the record to be perfected to be able to show that..

So, if a defense lawyer is looking down the train tunnel and seeing a big light coming his way, he becomes increasingly concerned and hypervigilant about securing as perfect a record of the trial proceedings as is possible.

Those thoughts are what came to mind when I watched the roughly six-minute exchange between defense counsel Jason Sheffield, representing Travis McMichael but presumably in this context speaking for all the defense attorneys on the case, and Judge Timothy Walmsley.

In effect, Sheffield was asking Judge Walmsley to provide a greater level of insight into his rulings than he has been providing to date—and Sheffield explicitly stated as the reason for his request his concern that the trial produces as perfect a record as possible.

There have, in fact, been several times when defense lawyers have expressed uncertainty about Judge Walmsley’s rulings in terms of their scope, for example.  Yesterday, for example, Frank Hough sought clarity on one of the Judge’s rulings on additional requested jury instructions—and Judge Walmsley became resistant to providing that greater clarity.

When Hough sought to paraphrase the judge’s ruling in an effort to strip away some of the ambiguity, Judge Walmsley informed him that his paraphrase was incorrect, but declined to explain precisely how.  Hough even offered that if the prosecutors on the case accurately understood the basis of the court’s ruling, he’d be happy to have the state explain it to him.  That, of course, went nowhere.

I suspect similar frustrations have occurred during the extensive and time-consuming individual voir dire taking place each afternoon in the courtroom, although that’s largely speculation on my part, having not had the opportunity to observe that part of the jury selection process.

In any case, when Sheffield today asked Judge Walmsley to provide greater insight into the legal rationale for his various rulings, for the explicit purpose of ensuring a perfect record, Judge Walmsley once again became resistant to the request.  You can see that in their exchange, here:

So, why might the defense attorneys be increasingly alarmed about the need for a perfect record of the trial proceedings?

Well, since jury selection began last Monday, the proportion of prospective jurors who have already formed an opinion as to the guilt of the defendants is nothing short of alarming, if not surprising given the 20 months of propaganda the local community has been subject to.

Specifically, when each group of 20 prospective jurors is asked by Judge Walmsley if they already have formed an opinion as to the guilt of the defendants, on average fully half of each group answers in the affirmative.  Half! And in some of those pools the percentage with an already formed opinion on guilt is as high as 65%!

Similarly, but trending even worse, when each group of 20 prospective jurors is asked by defense counsel Sheffield if they have already formed a negative perception of the defendants, the percentage answering in the affirmative has increased from an average of 28% during last week’s voir dire, but skyrocketed past 50% in this weeks’ voir dire.

Keep in mind that in a typical criminal prosecution the prospective jurors have zero knowledge or formed opinion of the defendants, and something on the order of 90%-plus of those defendants get convicted.

When you’re starting out with a jury pool that is already half or more of the prospective jurors have already formed an opinion as to guilt and have formed a negative opinion about your client, that’s not a great place to begin, completely separate from the legal merits of the case.

And, as noted, the more convinced the defense is that, in effect, the “jury fix is in,” and a conviction inevitable on that basis and entirely unconnected to the actual legal merits of the criminal charges, the more hypervigilant the defense becomes about ensuring as perfect a record as possible, in order to be prepared for the apparently unavoidable appeal they see coming at them.

As anyone who has followed me for any time will know, my own position on such things is that if the state cannot provide a fair and impartial trial of a defendant, the solution is not to just go ahead and unfairly try the defendant, anyway—the appropriate solution is to not try the defendant until a fair and impartial trial can be offered.  That’s what our Constitution requires, in my view.

Of course, much of this speculation on my part, but perhaps somewhat well-informed speculation.

In any case, with those thoughts out of the way, let’s dive into today’s voir dire.

General Voir Dire

Once again today’s general voir dire was a four-stage process, with welcoming remarks and a few questions from Judge Walmsley, then extensive questioning by Senior Assistant District Attorney Linda Dunikoski, more succinct questioning by Defense Counsel Jason Sheffield, and finally closing remarks and cautions by Judge Walmsley, after which the court transitioned into individual voir dire.

Judge Walmsley Welcomes and Questions Prospective Jurors

As one would expect, Judge Walmsley’s opening remarks to the prospective jurors today were essentially identical to his remarks from yesterday.

Here are Judge Walmsley’s four general voir dire questions to the prospective jurors, and their numbered responses:

Any of you related to any defendant or to Ahmaud Arbery? No one.

Formed any opinion as to guilt or innocence of accused? 558, 563, 566, 569,571, 565, 578, 584,585, 586, 591, 595 (12/20)

Any prejudice or bias either for or against the accused? No one?

Raise hand if mind is not perfectly impartial between state and accused? 563, 565, 571, 578, 595

At that point, he handed over general voir dire to the State, in the form of Senior ADA Linda Dunikoski.

Senior ADA Linda Dunikoski

Senior ADA Camarillo took just about 40 minutes to work through roughly 80 questions, identical to those asked in previous general voir dire sessions, after which Senior ADA Dunikoski as well as to read through a lengthy list of prospective witnesses to see if any were known to the panel.  Like yesterday, the state had about 80 general voir dire questions for the prospective jurors.

Any of you know us prosecutors? No one.

Anybody not reside in Glynn County? No one.

Anyone under 18 years of age? No one.

Anyone convicted of felony and not had rights restored? No one.

Anyone who sat on the grand jury that returned this indictment? No one.

Anyone currently a POST-certified officer with arrest powers either local or Federal? No one.

Anyone 70 or older and does not wish to serve on jury? 595, 577, 586

Anyone full-time student enrolled attending classes? No one.

Anyone here full-time caretaker of child 6 or younger, no other care options? 577

Anyone here full-time caretaker of disabled or elderly, no other care options? 563

Anyone here who has difficulty understanding English language? No one.

Anyone have difficulty hearing? No one.

Anticipate case will extend through Friday, Nov. 19, any scheduling conflicts in personal life, non-work, for example surgery schedule, airline ticket to fly out of state for birth of grandchild, apply to anyone here? 557, 558, 569, 578, 584, 595

Your elected official is DA Keith Higgins, any relation by blood or marriage? No one. Know him personally? No one.

Former DA Jackie Johnson, related by blood or marriage? No one. Know her personally? 565 interned in DA office under her.

Anyone have opinion about last year election where Johnson defeated by Higgins for DA? 595

Any opinion how or why Cobb County DA office assigned to case by GA AG? 595

Anyone here unable to give state a fair trial because prosecutors are from Cobb county? No one.

George Barnhill, Waycross judicial circuit, related by blood or marriage? No one. Know him? No one.

Barnhill Jr. former ADA, now practicing law in Brunswick here? 565

Know Tom Durden the elected DA of Atlantic judicial circuit or any of his ADAs? No one.

Know any of the ADAs currently working in Brunswick judicial circuit? No one.

Any know defense lawyers Rubin or Sheffield, defense attorneys Travis McMichhael. No one.

Defense lawyers Frank and Laura Hogue for Greg McMichael? No on.

Defense lawyer Kevin Gough for Roddy Bryan? 565, 577, 595

Anyone know Travis McMichael? No one.

Anyone know Greg McMichael? No one.

Anyone know William “Roddy” Bryan? No one.

Anyone know Amy Elrod? 565

Anyone know Ms. Lee McMichael, Greg’s wife. No one.

Anyone know Lindsey McMichael, Greg’s daughter? No one.

Anyone know Ahmaud Arbery? 573

His mother, Wanda Cooper Jones? 573

Father, Markus Arbery Sr.? 573

[Dunikoski forgot to ask about Markus Jr., Ahmaud’s brother.]

Anyone know Judge Walmsley? No one.

Ever serve on a jury to a verdict? 566, 585, 595, 573

Out of you four, were any the foreperson? No one.

Was your jury able to reach a verdict? 565, 573, 585, 595

Ever sat on a grand jury? No one.

When you received summons you were directed to web site for court, had a bunch of documents related to this case, did you look at any of those? OK if you did, but we need to know, indictments, pleadings, etc. 569

Ever serve in military? 557, 567, 575

Anyone with prior law enforcement training or experience? 567

Related to or close friend with law enforcement? 565, 567, 562, 571, 577, 585, 586, 591, 595

Anyone have work experience in social work? 565, 580

Anyone have a background in counseling, psychology, psychiatry, education or work? 565, 575, 580

Work experience in the legal field, lawyer, paralegal, law librarian? 595

Anyone have experience in criminal justice field, probation, prison, minister in prison, etc. 565, 567

Are you related to or close friend in DA office anywhere in nation? 578

Anyone related by blood or marriage to criminal defense attorney? No one. Personal friend? 579, 586

Anyone here who has medical training, beyond CPR? 562, 567, 577, 578, 579, 580

Anyone here had a notable bad experience with law enforcement? No one.

Notable good experience with law enforcement? 567, 580

Anyone had notable bad experience with prosecutor? No one.

Anyone had notable bad experience with criminal defense attorney? 567

Have you ever been arrested, prosecuted, convicted for DUI or more? 580

Close friend or family arrested, prosecuted, convicted? 557, 558, 563 566, 567, 577, 578, 584, 585

Anyone feels falsely accused of crime, whether involved police or not? 577

Close relative or friend falsely accused of crime? 566, 569

Have you been victim of violent crime or crime against person? 577

Friend or family victim of violent crime or crime against person? 595

Anyone ever witness a violent or other crime in progress? 557, 563, 567, 580, 584

Anyone ever take cell phone video of a crime? No one.

You, close friend, family, victim of burglary or home invasion? 557, 558, 563, 569, 577

You, close friend, relative ever had a gun stolen out of your car? 565

Anyone ever called 911 to report a crime? 584

Anyone ever had to give statement to law enforcement with regard to a crime, not traffic? 557, 558, 565, 567, 580, 591

Anyone ever been a witness at trial, sworn? 567, 577, 595

Anyone here outside of law enforcement taken it upon themselves to investigate a crime? No one.

Know someone outside law enforcement taken it upon selves to investigate a crime? 578

Look around, know any of the other prospective jurors in the room? 577 knows 585, 565 also knows 577, 584 and 586 know each other.

Monday, Selden Park, first day of jury summons, see any other jurors who you knew such that if you were both on jury it might a problem for you, either because of relationship, mother-daughter, or they are your boss? 578, 584, 591, 557

Anyone here who does not own any sort of firearm, none in your household? 557, 575, 577, 584, 586

Anyone ever carried a gun as part of their job? 557, 567, 580

Anyone who has non-law enforcement firearms training, non-military, just went and took a class? 565, 569, 580

Anyone lived in Glynn county for less than 5 years? 557, 575, 579, 580, 586

Anyone live in Scitilla Shores neighborhood? No one. Previously? No one. Particularly familiar with that area? 578

Anyone live in Royal Oaks neighborhood? No one. Previously? No one. Particularly familiar? 584

Fancy Bluff neighborhood, anyone live there? No one. Previously? No one. Particularly familiar? No one.

Familiar with Boykin Ridge Street in Fancy Bluff? No one?

Anyone have religious, moral, ethical conviction would keep you from passing judgment on another person, never reach a verdict, guilty or not guilty? 558, 584

Personal reason would be unable to render a verdict? No one.

Reverse question, anyone here who does not belong to any social, religious, fraternal, professional association? 566, 567, 562, 580, 585, 595

Anyone, relative, or close friend ever arrested such that you believe treated unfairly by either police or criminal justice system? No one.

Anyone ever arrested for kidnapping or false imprisonment? No one.

Arrested for shooting at someone? No one.

Close friend or relative arrested for murder? No one.

Anyone would be unable to follow the law that Judge Walmsley gives them because they think it should be or may be different than he’s telling you? No one.

Anyone who WANTS to serve on this jury? No one.

ADA  Dunikoski then read through her extensive list of possible witnesses, inquiring as to each if any of the jurors knew any of them.

Having completed her questioning of the prospective jurors, Senior ADA Dunikoski turned the pool over to the defense.

Defense Counsel Jason Sheffield

Defense Counsel Jason Sheffield conducted the general voir dire for the defense as a whole (although, technically speaking, he represents only Travis McMichael).

Sheffield’s questioning of the pool took about 15 minutes, asking about 20 questions identical to those he asked yesterday.

Do you know Travis, formerly coast guard? No one.

Anyone know Greg McMichael? No one.

Anyone know Roddy Bryan? No one.

Based on what you’ve heard or discussed, have any of you formed a negative opinion about Travis McMichael? 557, 558, 562, 565, 566, 567, 569, 571, 578, 584, 585, 586, 591, 595 (14/20)

And Greg McMichael? 557, 558, 562, 565, 567, 569, 571, 573, 578, 584, 585, 586, 591, 595 (14/20)

And Roddy Bryan? 557, 558, 562, 565, 566, 567, 569, 571, 584, 585, 591, 595 (12/20)

Anyone ever decided to support or vote for political candidate who has platform gun control, limiting gun rights? 595

Anyone oppose laws that allow for carry of firearms, open or concealed, in public? No one.

Anyone ever participated in any demonstrations, walks, marches, on behalf of social justice, whether that was prior to incident in this case or after, in community demonstrating for social justice? 557, 578

Anyone supported, in any way, Black Lives Matter movement, financial, bumper sticker, yard signs, postings on social media, re-posting things you’ve seen, whether “Justice for Ahmaud,” #RunforAhmaud, or legislation change around this case or issue? 557, 566, 578, 591

Anyone feel that you were denied an opportunity because of your background, ethnicity, or race? No one.

Anyone been falsely accused, looked at funny, because of your ethnicity or race? No one.

Do you agree that old Georgia flag from 1956 to 2002 is a racist symbol? 591, 595

Anyone agree that people of color are not treated fairly in the criminal justice system? 557, 563, 566, 569, 571, 575, 579, 591, 595 (9/20)

Anyone agree that police in this country do not treat black and white folks the same? 566, 569, 563, 571, 579, 591, 595, 575 (8/20)

Anyone who feels a psychologist or psychiatrist could find a mental illness in just about anybody? 565, 579, 584

Anyone have an opinion, no matter what it is, about the lapse of time between the incident in this case, February 2020, and the arrest of the accused? 557, 562, 563, 569, 571, 577, 578, 579, 586, 591, 595, 566 (12/20)

Anyone feel they will be unable to give their full attention to trial, because of something going on at work or home? 563, 565, 566, 569, 577, 578, 584, 585, 595 (9/20)

Any health issue that might impair ability to give full attention to trial? 569, 591

Anyone have any concern that whatever verdict you render in this case will cause you problems after the trial is over, “problem” defined any way you like, home, work, community? 563, 565, 567, 577. 578, 580, 584, 575 (8/20)

After the defense had worked through its questions, the proceedings were returned to Judge Walmsley.

Judge Walmsley Closing Remarks and Cautions to Prospective Jurors

Judge Walmsley informed the prospective jurors that they’d take a short recess and then transition into individual voir dire in which they would be questioned separately to follow up on these and other questions.

He cautioned them that until he instructs them otherwise that they were not to discuss the case amongst themselves or others, not to search out information about the case, not visit the neighborhoods involved, none of that.  Further, if anyone approaches them about the case, or is discussing the case within their hearing, they are to notify the court.

And with that the court recessed, to come back into session a short time later with individual voir dire.

Individual Voir Dire: No Useful Coverage

As noted, individual voir dire is broadcast without sound, so that broadcast is of little use for purposes of analysis.

Presumably, local journalists will be reporting the bare facts such as how many jurors were dismissed and how many were seated, and we’ll share that information with all of you as it comes our way.

 

OK, folks, that’s all I have for you on these jury selection proceedings today.

Until next time:

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

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