Welcome back to our ongoing coverage of the Ahmaud Arbery case, with day 9 of jury selection, or voir dire, for the trial of Travis McMichael, Greg McMichael, and William “Roddy” Bryan on murder and other charges over the death of Ahmaud Arbery on February 23, 2020.
Today we expect the jury selection process, or voir dire, to continue with a new group, the ninth group to date, of 20 prospective jurors subject to general voir dire this morning, followed by individual voir dire of members of that group in the afternoon, as has been the pattern throughout last week.
The media is reporting that as of yesterday afternoon there have been about 47 prospective jurors who have made it through general and individual voir dire, and who are said to have been “qualified” for yet a third level of voir dire. That’s an increase of 5 from the previous day, which in turn gained 6 over to the day prior. Judge Walmsley reportedly wants 64 prospective jurors “qualified” in this manner, to allow for that third level of voir dire that will ultimately distill that group to the 12 jurors and 4 alternates needed for trial.
In a rather disturbing revelation by defense attorney Kevin Gough, informed the court that he had discovered that much of the information collected from prospective jurors to date had been provided without them being sworn in or cautioned that their answers were subject to criminal penalty as perjury if false. (Gough did this in the form of a motion to the court, but sadly the motion was not captured on video/audio by the court.)
While jurors have been sworn in each day at the start of general voir dire, and that oath would also apply to the subsequent individual voir dire, apparently their multi-page written questionnaires and other written information provided by the jurors were provided with neither oath nor caution that there were potential criminal penalties for providing false information.
This means that all that unsworn and uncautioned data collected prior to general and individual voir dire–the data explicitly used to frame and guide that general and individual voir dire–has absolutely none of the indicia of the truthfulness that would be presumed had the information been provided under oath or caution. Arguably, then, the entire voir dire can be argued to be based upon a rotten foundation.
That is, it appears that the responses to the early written juror questionnaires were collected without oath or caution. These responses were used to frame the in-person questions asked in general voir dire. The responses to those general voir dire questions were then used to identify issues to focus on during individual voir dire. To the extent the responses to the initial written juror questionnaire lacks truthfulness, then, arguably everything that follows from that written questionnaire is also defective.
In addition, Attorney Gough raised a “Brady” concern that the prosecution may have in its possession information on potential juror bias–such as social media posts regarding #IrunwithAhmaud–that they have not provided to the defense. The state’s response appears to be, hey, social media posts are on the internet and equally accessible to the defense, so not our obligation to share it. Gough’s response to that is that fundamental due process and the court’s obligation to a fair trial should require that the state turn over such knowledge of potential bias on the part of a juror.
Judge Walsmley took the position that the initial written questionnaire was a “nice to have” step in the jury selection process, and it was somehow defective that has no particular import. The defense, for example, could have asked during general voir dire if everything in their written statements was true, while the prospective jurors are under oath. Of course, if the defense was under the belief that the written questionnaires were provided under oath or caution it would not have occurred to them to ask such a question.
Judge Walsmley also took the opportunity of Gough’s motion to caution the lawyers that he feels like the juror questioning has been getting rather uncomfortably aggressive, and taking too long. Bottom line, however, he says he feels reassured by the number of jurors they have “qualified” who have said they can be fair and impartial.
Here’s the video of Attorney Gough raising these concerns to Judge Walmsley in court yesterday. (Although Gough technically represents only defendant William “Roddy” Bryan, the other defense attorneys join in this concern.)
That means that the trial is still 17 “qualified” jurors short of the 64 desired. At the current rate of 5 to 6 jurors being “qualified” each day, that means 3 to 4 more days of general and individual voir dire to get to the 64 “qualified” jurors, bringing us to Tuesday or Wednesday of next week. Then additional time will be required to distill those 64 down to the 16 final seated jurors.
Of course, by then our own coverage will have shifted to the Kyle Rittenhouse trial, which begins this Monday, November 1. You’ll find that daily coverage right here, at Legal Insurrection!
You can find our analysis of yesterday’s voir dire here:
High Proportion of Those Summoned to Jury Duty are No-Shows
Although it has been little reported until the last day or so, a remarkably high proportion of those summoned to jury duty on this case has declined to answer that summons by actually showing up.
As CNN reports, for example:
Of the first batch of 600 people summoned when jury selection began on October 18, only 283 actually came, according to Ron Adams, the Clerk of Superior Court for Glynn County. Another 400 were summoned on Monday, but only about half that number appeared in person. No official reason has been given for the low turnout.
There’s been no explanation provided as to why fewer than half of summoned jurors are answering that call–but speculation would suggest a genuine fear of negative personal repercussions, including to the safety of themselves and their family if they participate as a juror in this highly propagandized trial.
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