From the Supreme Court to the county courthouse in Brunswick, Georgia, judges are struggling this week with how to select impartial juries in cases attracting massive pretrial publicity.
In Brunswick, jury selection is underway in the trial of three white men caught on cellphone video chasing and shooting to death Ahmaud Arbery, a 25-year-old Black man, who was out for a jog. Since the incriminating video was widely shown in a county of 85,000 residents, the task of finding twelve jurors who have an open mind about the defendants’ guilt or innocence will be difficult.
For guidance, trial judge Timothy Walmsley should turn to the Boston Marathon bomber case and this month’s argument before the Supreme Court on mistakes made during jury selection in that trial.
Judge Walmsley has expressed frustration at the slow pace of jury selection. After four days of questioning last week, only 23 potential jurors have been found to be impartial in a case where the judge needs to identify at least 60 eligible jurors before the next steps of jury selection can proceed.
In high-profile cases, judges understandably feel trapped between a rock and a hard place. On the one hand, they could run a fool’s errand and search for that rare person who knows nothing about a case that mesmerized their neighbors.
But this would be looking for the veritable needle in a haystack. Worse, it would put persons on the jury who didn’t care enough to follow the lead stories of the day. For instance, one woman remains in the Arbery jury pool because she “goes out of my way not to read news or politics.”
On the other hand, Judge Walmsley could throw in the towel and let people who have seen the graphic video serve as jurors, so long as they make a perfunctory, boilerplate, and somewhat unbelievable promise that they can forget the video.
Georgia law permits persons who acknowledge having preconceived opinions about a case to make it onto the jury, so long as they recite the required magic words about still having an open mind.
But it doesn’t take a Ph.D. in psychology to recognize that persons can’t be trusted to certify their own impartiality. Some people might lie to get onto the jury. Others might be honest and yet blind to their own unconscious biases.
In the Boston Marathon bombing trial, the trial judge wrongly limited his examination of jurors to extracting the answer he wanted—“I am impartial.” On appeal, a federal appeals court threw out the marathon bomber’s death sentence, ruling that the judge should have done a more thorough job of screening for bias. The judge should have asked jurors for a specific recounting of what they saw or read in the news. Only after discovering exactly what sort of stories the Boston jurors were exposed to could the judge, and not the juror, have made a proper determination of whether someone who had seen this or that in the news could really put the publicity aside.
The Supreme Court is now deciding whether to uphold the appellate court’s ruling. Until that decision comes down, prudence requires the Arbery trial judge to go the extra mile in grilling jurors, no matter how long it takes. Did they see the cellphone video? Did they read about it? Did they discuss it with family and friends? What exactly did they see or hear in the video? Did they hear shotgun blasts and if so, how many? Did they see Mr. Arbery entering a house under construction on the street? Did they read that there had been break-ins on the block?
Questioning jurors for bias is a delicate matter. For instance, the judge has ruled that jurors should not learn of Mr. Arbery’s minor criminal record, for shoplifting and for bringing a gun to high school. So, the judge must avoid asking questions that inadvertently alert jurors to Mr. Arbery’s record. But he needs to ask open-ended questions (“What have you learned about Mr. Arbery from the media?”) that might lead a juror to volunteer having heard of Mr. Arbery’s priors.
On the other side, the judge is considering a defense motion to exclude photos of a vanity license plate on one of the defendant’s trucks that featured the Confederate flag. The judge doesn’t want to ask questions that let the cat out of the bag, but he does want to probe for whether jurors might already know of evidence he intends to exclude.
If the cellphone video captures what it appears to, these men should be convicted and punished severely. But Judge Warmsley should not commit the mistake that occurred in the Boston Marathon trial—speeding up jury selection to convict obviously guilty defendants, only to have the sentence thrown out on appeal. That would be to save time now only to waste it later, forcing victims, witnesses, and the community to live through traumatic events twice.