Arbery Case Day 1 Wrap-Up: Jury Selection Begins, Extra Peremptory Strikes & Legal Team Shares Defense Plan

Hey folks, welcome to our ongoing coverage of the Ahmaud Arbery case!

Today the court trying the defendants in the Ahmaud Arbery case finalized the questions that would be asked of prospective jurors during general voir dire, Judge Walmsley substantially increased the number of peremptory strikes permitted, and the general voir dire of the first group of prospective jurors began.

Juror Questions for General Voir Dire

The State prosecutors and the defense lawyers had each prepared a list of questions for general voir dire that were presented to Judge Walmsley for his approval—and a great many proposed questions were, ultimately, not approved by the judge.

Before we dive into the specific questions, however, it’s perhaps worth clarifying how they will be applied.  Apparently over 1,000 prospective jurors have been called in this case, with fully 600 of them ordered to report to the courthouse today.  These will be filtered through the process of jury selection, or voir dire, until the court arrives at a panel of 12 seated jurors plus four additional alternate jurors.

The first step in this process is general voir dire in which prospective jurors are first asked questions in groups of 20. These are intended to be “hand-raising” questions.  That is, rather than dive into detailed answers with individual jurors, these questions are intended merely to identify jurors who either obviously ought to be excluded or who need to be flagged for more in-depth questioning on the issues asked about.

For example, a general voir dire question might be, “Are you under the age of 18?”  Only persons 18 or older are eligible to serve as jurors, so anyone raising their hand to this general question ought not be seated as a juror, and would be dismissed.

Similarly, a general voir dire question might be “Has anyone here ever had prior interaction with any of the lawyers or defendants in this case?”  Anyone raising their hand to this general question need not be automatically dismissed—but they would later be subject to individual voir dire to explore the nature of that prior interaction to determine if it’s cause to dismiss them from being seated as a juror.

In fact, as a practical matter, we do not want jurors at this stage of general voir dire, while being questioned in groups of 20, to be providing specific and detailed answers to these general questions—because their answers could potentially “poison” the others in the 20-person pool.

For example, if one of the prospective jurors had prior interaction with a defendant, and that interaction had been that the defendant had slept with the prospective juror’s spouse, not only should that prospective juror be dismissed because they themselves would likely be biased against the defendant, we also wouldn’t want the other prospective jurors to overhear that explanation because it could unfairly bias them as a whole against the defendant.

Instead, the offended prospective juror would raise their hand during general voir dire when asked about prior interaction with the defendant, and then the details of that interaction would be explored in individual voir dire, outside the hearing of other prospective jurors.

So, the questions discussed in court this morning, and ruled upon by Judge Walmsley, were questions intended for general voir dire—once we get to individual voir dire, the scope of questioning could be substantially broader, depending on the interaction with that individual juror.

As noted, both the State and the defense had prepared their own sets of questions for this general voir dire—these are questions in addition to the statutorily required questions, which ask about things like whether a prospective juror is related to any of the parties involved in the case.

This morning, each side got to object to the other side’s questions, explain their objection, have the other side argue in favor of their own question, and ultimately have Judge Walmsley make a final decision on whether the proposed question would be permitted to be asked during general voir dire.

State Questions for General Voir Dire

The first of the State’s “questions” to which the defense objected this morning was not actually a question at all—rather, it was a statement.   Specifically, the State wanted to inform the jury that this was not a death penalty case.

The State’s rationale for wanting to inform the jury of this is that unless they were told otherwise the jury might assume that a murder trial was automatically potentially a death penalty case—and they might be hesitant to vote for a verdict of guilty if they believed execution was a possible punishment.

The defense objection was that making this statement during general voir dire would be likely to cause confusion and raise questions that would complicate the trial.  For example, jurors might wonder if this could have been a capital murder case, or had been a capital murder case and downgraded—when neither was the case.

Judge Walmsley excluded this statement—for purposes of general voir dire. But if the issue were to come upon individual voir dire with a specific juror, it’s likely the parties would be free to explore it in greater detail at that point.

The State then wanted to ask prospective jurors if they believed that the prosecutors in the case were from Atlanta (spoiler, they are not).  This appears to be a local political dynamic, raising concern with the prosecution that they might be unfavorably perceived by prospective jurors—who necessarily live in Glynn County—as lawyers intruding into their locale from hated Atlanta.  This question was also excluded by Judge Walmsley.

The State also wanted to ask prospective jurors if they or a close relative had ever been involved in a citizen’s arrest.  The judge excluded this question on the grounds that it was asking about a legal concept.

The state also had a series of questions around firearms—did any of the prospective jurors own firearms, had they ever used a firearm for non-sporting purpose, had they ever had a firearm pointed at them, and so forth.  Judge Walmsley excluded the more specific of these questions for purposes of general voir dire, allowing only that prospective jurors to be asked if they owned firearms. If they indicated they did, then more specific questions could be asked about that on individual voir dire.

Defense Questions for General Voir Dire

The defense had put together a lengthy list of some 30 proposed questions for general voir dire, most of which it seems the prosecution had an objection to, and many of which were, ultimately, excluded by Judge Walmsley.

Unfortunately, I’ve been unable to obtain a copy of the complete defense general voir dire questionnaire, so I’m limited to covering those specific questions covered in detail during this morning’s proceedings.

Defense question #10, for example, asked the hand-raising question, does anyone here agree that no one should be allowed to shoot an unarmed person under any circumstances. This was excluded by Judge Walmsley.

Question #11 asked if anyone agrees that no one should ever put themselves in a situation where they might have to use a firearm to defend themselves.  Also excluded by Judge Walmsley.

Question #12 asked if anyone had participated in any demonstrations or marches about the social justice movement.  I believe Judge Walmsley allowed this question.  Remember, this is a hand-raising question for general voir dire, so presumably more detail from each prospective juror who raised a hand to this one would be obtained during their individual voir dire.

Question #13 asked if any of the prospective jurors supported the Black Lives Matter movement in any way, defining support very broadly to include positive thoughts, financial support, lawn signs and bumper stickers, and so forth. Judge Walmsley permitted this question.

Question #14 asked if anyone believed that any person who opposed the BLM was a racist.  Judge Walmsley excluded this question.  He also expressed concern about allowing many of these “  is automatically a racist” type questions, of which the defense had several, if only because of time concerns.

Question #15 asked if anyone believed that the social justice movements and demonstrations had had a positive effect in the community, and #16 asked if anyone believed this case was important to revealing racism in the community. Judge Walmsley excluded both of these.

Question #17 asked if anyone believed the media had done a fair job covering this case.  Judge Walmsley excluded this question.

Question #20 asked if anyone believed that Confederate flags were racist symbols, and also if they believed that the old Georgia state flag based around a Confederate flag motif was a racist symbol. Judge Walmsley permitted this question.

Question #23 asked if anyone believed that anyone who uses the N-word is racist.  This question was preemptively withdrawn by the defense, upon stipulation by the prosecution that it would not be made an issue in the case, and so will not be asked during general voir dire.

Question #24 asked if anyone believed that a citizen should never attempt to detain someone under any circumstances. Judge Walmsley excluded this question as involving a legal concept, and prompting the prospective jurors to pre-judge the evidence.

Question #25 asked if anyone believed that a psychiatrist or psychologist could likely find some degree of mental illness in almost anybody, and Judge Walmsley allowed this question.

Question #26 asked about the use of psychiatric medications, and Judge Walmsley excluded this question.

Perhaps most interestingly, defense question #29 asked if any of the prospective jurors had a concern about their individual safety, reputation, or livelihood if they returned a particular verdict in this case—and Judge Walmsley excluded that question.

Here the defense specifically objected, characterizing this question #29 as perhaps the single most important question in their list, and noting the widespread chaos that often accompanied such high-profile, racially-energized cases.

Judge Walmsley was unpersuaded, however.  He would allow prospective jurors to be asked generally if serving would be an exceptional hardship for them—one of them most common and general of jury questions—but not specifically if serving and returning a verdict would make them concerned for the safety of themselves, their family, their reputation, or their livelihood.

The court then wrapped up the general voir dire questions discussion by noting that any questions not specifically addressed were deemed admitted.

Judge Substantially Increases Number of Peremptory Strikes

Another important issue around voir dire that took place this morning was the number of peremptory strikes that would be permitted.

A prospective juror can always be dismissed for cause—for being a relative of one of the parties, for example, or for being ineligible for jury service due to age or felony conviction. And if cause exists, that juror is in effect dismissed by motion of the judge.

The parties can also dismiss a prospective juror, in the absence of cause, but only a limited number of them—and this is done by using one of their peremptory strikes.

By statute, each side in a criminal trial receives nine peremptory strikes—so, nine for the defense, and nine for the state.

Because of the possibility that the three defendants might not always achieve consensus on whether a particular prospective juror should be struck, Judge Walmsley awarded each of the three defendants three of the nine statutory peremptory strikes. So each defendant “owns” three peremptory strikes which they can use, or not, at their discretion.

In a case involving multiple defendants, or where selecting a jury might be particularly challenging because of the high profile of the case, the trial judge has the discretion to award up to five more peremptory strikes than the nine required by statute.

This morning Judge Walmsley decided to award an additional five peremptory strikes to the defense—meaning five more peremptory strikes per each defendant.  That means that each of the three defendants now has eight peremptory strikes that they “own” to use at their sole discretion—a total of 24 peremptory strikes for the defense as a whole.

The prosecution was also given additional peremptory strikes, but only three more—for a total of 12 peremptory strikes for the State.

General Voir Dire Begins

This afternoon, shortly after 1 pm Eastern time, general voir dire began in this case, with the first group of 20 prospective jurors.  Judge Walmsley gave some introductory remarks about the case, including a summary of the charges and the parties involved.  He was followed by Prosecutor Linda Dunikoski asking the permitted State’s general voir dire questions, during which various jurors identified only by number raised their hands.  She, in turn, was followed by Defense Attorney Jason Sheffield (one of Travis McMichael’s legal team), who presumably asked the permitted defense general voir dire questions.

Unfortunately, while this general voir dire broadcast engaged in the usual practice of keeping the cameras positioned so as to not show the jurors, for much of the general voir dire questioning they also kept the microphone turned off.  As you might imagine, little can be gained from observing voir dire when one cannot know what is being said.

Interestingly, the audio was being broadcast for Judge Walmsley’s opening remarks and for a portion of Prosecutor Dunikoski’s initial general questions, but then the audio was turned off for the remainder of the session.

I had the sense from Judge Walmsley’s earlier remarks today that it was his intention that neither video nor audio of the prospective jurors would be allowed to be broadcast—if that’s the policy, and the temporary audio shared today was unintentional, then there will be little point to “observing” jury selection.  My understanding of the intended broadcast policy is sufficiently ambiguous, however, that I’ll just have to check in each day and see what’s being shared.

In any case, we should expect that the combination of general and individual voir dire will take at least a week, and perhaps as long as two, to seat the final jury of 12 plus four alternates—and if two weeks that would bring us right to the scheduled start date for the Kyle Rittenhouse trial.

As previously mentioned, once the Rittenhouse trial begins we’ll be turning our full attention to that trial, and leaving the Ahmaud Arbery case to others to cover.

The Planned Legal Defense in a Nutshell

Finally, last Friday the defense counsel for Greg McMichael—the husband and wife legal team of Frank & Laura Hogue—sat for an interview with Court TV in which they laid out the legal defense they intend to present to the jury in this trial—and we can presume this will be the legal defense for all the defendants.

There’s nothing surprising about the legal defense they plan to offer, but it’s always nice to have confirmation from defense counsel themselves that my anticipation of what that defense will be is, in fact, the one they plan to offer.

Specifically, Frank Hogue described the legal defense as a predictable combination of lawful citizen’s arrest followed by lawful self-defense.  That is, that the parties’ initial actions—their pursuit of Ahmaud Arbery—were done in lawful citizen’s arrest based upon a reasonable suspicion that Arbery was a felony burglar in flight, and that the actual shooting of Arbery was done in lawful self-defense following Arbery’s attack upon Travis McMichael.  Here’s a brief transcript of that legal defense as laid out by Attorney Frank Hogue this past Friday:

TRANSCRIPT

Well, the defense is pretty plain. I think it’s out there. The initial actions by the McMichaels we will put under the rubric of the citizen’s arrest law. They had reasonable and probable grounds, which is the language from the statute, to believe that Ahmaud Arbery was fleeing from the commission of a felony, not necessarily having committed one that very day. It’s not required that he has just committed one and there’s no evidence that he had committed one that day.

But that they reasonably suspected that he was the guy they had seen on four previous video occasions and one in person occasion in that house at night.  After the owner of the house had said on one of those visits, he noticed that he was missing about $2,500 worth of electronics equipment from the house. McMichaels knew that and it was in their minds the day Greg saw Ahmaud run past at a pretty good clip from the direction of the house.

So at that point, that’s when Greg decided we need to detain him, so the police can come here and investigate, and see who is this guy, what’s he doing in our neighborhood, and what has he been doing going in the house on these prior occasions.

And it looked to Greg like he was fleeing from someone or something that very day. It didn’t look to him like he was out for a Sunday jog, as he said on the body cams, contemporaneous with the event that very day. He thought that he was, as he put it, hooked up and hauling ass, that he wasn’t out for a Sunday run.

And then when they got in the truck to chase him to stop him to let the police come and investigate the matter, the neighbor down the street Matt Albenzie [sp?], who had been on the phone with the police reporting that Ahmaud was back in the house, Ahmaud saw him, and this is on video, and then he took off running right after he saw Albenzie on the phone.

When Travis and Greg come back out of the house to get in the truck to drive after Ahmaud, Matt Albenzie was down the street in front of the English house, making a hand motion with his arm, which conveyed to the McMichaels, “There he goes. That’s the guy.”

And of course, Greg recognized him having seen him on the four previous videos, Travis saw him in person on February the 11th, just 12 days prior at night at that house. And so he recognized him as well.

And so at that point, they were conducting a lawful citizen’s arrest under the statute as it existed, then, it’s since been amended. And it was an attempted citizen’s arrest up until the very end, when Ahmaud turned sharp left at the front right corner of the pickup truck. And within a couple of steps he was on top of Travis, who had a loaded shotgun. And it was apparent to Travis that Ahmaud was trying to take the gun from him. And so Travis shot him in self-defense.

So it starts out as a citizen’s arrest case, it ends up as a self-defense case. And we’ll be arguing both of those sets of laws in our defense.

And there you have the legal defense to be presented in this case, right from the horse’s mouth.

Ok, folks, that’s all I have for all of you today.  I’ll plan on another day of LIVE coverage tomorrow, in the hopes that there will be useful content for me to cover live. If not, we’ll keep you apprised of our alternative plans, should we need to develop such.

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

Law of Self Defense Platinum Protection Program

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16 thoughts on “Arbery Case Day 1 Wrap-Up: Jury Selection Begins, Extra Peremptory Strikes & Legal Team Shares Defense Plan”

  1. I really don’t have any confidence that a defendant in a homicide case will receive a fair trial in a court that is going to go ahead with a prosecution in the absence of any evidence that would give a reasonable man probable cause to believe the catagory of the homicide was felony rather than justified or excused. The U.S Constitution presumes the homicide to be justified or excused and without such probable cause to believe the homicide is not justified or excused, prosecuting the defendant is a violation of his constitutional right not to be prosecuted without probable cause.

    This isn’t jolly old England where where the king had a monopoly on the use of force and violence and all homicide was considered to be felonious and thus murder until the defendant proved by a preponderance of the evidence that the homicide was justified by the permission of the king, or excused by the king’s grace on the principle of missfortune or self defense. We kind of rejected that kind of tyranny in 1776.

  2. I have two concerns with the defense strategy:

    First, it sounds like they are putting all their eggs in one basket, i.e.; the defendants were executing a citizen’s arrest when, at least according to some statements made by one of them earlier, they were just wanting to ask questions. Are they conceding that otherwise unlawful force was used BUT FOR the protections afforded in a citizen’s arrest statute?

    Second, the statute is open to interpretation, especially the phrase that “If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.”.

    So does that mean that the defense has to prove Arbery was committing a felony and escaping EVEN IF they had reasonable and probable ground of suspicion of a felony?

    If so that is difficult because there isn’t any solid evidentiary proof of Arbery’s intentions, and it puts the burden of proof on the defense.

    Hope Mr. Branca will clarify on this…

    1. Attorney Andrew Branca

      The citizen’s arrest issue is to explain the initial pursuit, which the State will certainly characterize as three white racists chasing down a black Arbery who was merely recreationally running through the neighborhood before being shotgunned to death from a pickup truck sporting a Confederate vanity license plate. It likely also has the added benefit of being true.

      Every statute is open to interpretation to some degree, but the relevant GA citizen’s arrest statute does not require that a crime was actually committed by the suspect–no arrest requires that an arrest was actually committed, who could know that with legal certainty until a suspect is tried and convicted (or acquitted). It requires, in part relevant to the facts of this case, that those attempting to make the citizen’s arrest had a reasonable belief that the suspect has committed a felony and is in flight from that felony.

      §17-4-60 Grounds for arrest

    2. So does that mean that the defense has to prove Arbery was committing a felony and escaping EVEN IF they had reasonable and probable ground of suspicion of a felony?

      The defendants don’t have to prove anything. In jolly old England the defendant was considered guilty until he proved himself innocent the court would kill the defendant in an attempt to make him prove he was innocent, but in America a defenant is innocent until the jury finds the state has proved him guilty beyond a reasonable doubt and the defendant has a constitutional right to stand mute during the process, and this standing mute cannot be considered evidence of guilt.

  3. John, KTL KNOW THE LAW, MASS

    I thought the defense narrative was interesting for sure. As far as the pursuit in question, if 2 guys with guns were chasing after me and still another guy was pursing me in a pickup truck, I would think I was in jeopardy – and oh I’m white. It would not be a racial incident for me.

    1. I thought the defense narrative was interesting for sure. As far as the pursuit in question, if 2 guys with guns were chasing after me and still another guy was pursing me in a pickup truck, I would think I was in jeopardy – and oh I’m white. It would not be a racial incident for me.

      The thing is, if you killed the three guys in what you thought was self defense, the fact that you thought you were in “jeopardy” (your state of mind) would be relevant to your defense. But if the three guys killed you because you attempted to use force against them, even though you thought you were justified, your state of mind would be immaterial and irrelevant to their legal defense of self defense.

      As for Arbery and other fleeing felons, it is almost impossible for a fleeing felon to be justified in using force against anyone in self defense because it is almost impossible for the fleeing felon to have a reasonable belief that anyone is using or threatening the imminent use of unlawful force against him, and that is because anyone and everyone has the legal right to use physical force against him to prevent his escape and he knows he is a fleeing felon.

      1. John, KTL KNOW THE LAW, MASS

        I didn’t say that I would use force against anyone. Simply stated that I would feel a sense of jeopardy. As far as shooting at a fleeing felon – what are police expected to do. For example Homeland Security Policy would not sanction shooting at a fleeing felon unleash fleeing felon was a threat to officers or others. And, I believe that would be a threat of “deadly force.”

  4. Andrew, Georgia law authorized a citizens arrest on “reasonable and probable grounds of suspision.” This appears to be a much lower standard for legal authority to make an arrest than the “probable cause to believe” standard that is required of police officers. It would seem to be the same standard as the “reasonable suspision” standard that is required for a police officer to temporarly detain a person (an informal arrest). Any thoughts on how this might effect the defendant’s defense of citizens arrest.

    1. Attorney Andrew Branca

      It’s rather hard to say, because much of the fleshing out of the “probable cause” standard for modern police was developed mostly in the middle of the last century, and the GA citizen’s arrest law was created in the middle of the century prior to that, so it’s not necessarily safe to apply the same terminology and concepts to both scenarios. I certainly don’t think the GA law places a higher standard on citizen’s arrest than it does on police arrest–speculatively, perhaps it would have, if both forms of arrest were developed at the same time, but who knows, we can only work with the law as it exists, not as it might have existed under different circumstances.

      1. Here is the English common law of citizens arrest that was adopted by Georgia and codified in 1863.

        3. ANY private person (and a fortiori [consequently] a peace officer) that is present when any felony is committed, is bound by the law to arrest the felon; on pain of fine and imprisonment, if he escapes through the negligence of the bystanders.14 And they may justify breaking open doors upon following such felon: and if they kill him, provided he cannot be otherwise taken, it is justifiable; though if they are killed in endeavoring to make such arrest, it is murder.15 Upon probable suspicion also a private person may arrest the felon, or other person so suspected,16 but the cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is manslaughter, and no more.17 It is no more, because there is no malicious design to kill: but it amounts to so much, because it would be of most pernicious consequence, if, under pretense of suspecting felony, any private person might break open a house, or kill another; and also because such arrest upon suspicion is barely permitted by the law, and not enjoined, as in the case of those who are present when a felony is committed.

        1. I guess Georgia actually adopted the English citizens arrest law with their reception statute in about 1776. The common law wasn’t codified in Georgia until 1863 and that was the first codification of the English common law in the English speaking world. England didn’t even have the common law codified in 1863.

    1. I’m not from Georgia, so I”m not all that familiar with Georgia’s statutes. I know in Missouri the rule of statutory construction is that the Legislature is considered to know what the common law is in Missouri and that all statutes are deemed to be a codification of the common law unless the statute expressly declares the Legislature’s soecific intent to repeal the common law on the subject matter. Any question on the meaning of a statute is settled by the courts by examining the common law to fill in the gaps and answer any questions as to what the legislature was attempting to say.

      When you look at Blackstone’s definition or description of the English common law of arrest by private persons and compare it to Georgia’s arrest by private persons you can see that the Georgia statute simply paraphrases Blackstone’s definition or description of the common law. First there is a right to arrest for an offense committed in your presence and permission of the law to kill the offender if necessary to effect the arrest. Homicides committed with permission of the law are justified. Second, there is a right to arrest (a right to use force to take into custody) on suspision of an offense, but no permission to kill merely to effect the arrest. If you do kill the suspect in the course of attempting the arrest, the homicide amounts to “no more than manslaughter” meaning that, depending on the circumstances, it may very well amount to even less than manslaughter.

      I am not a lawyer, but I interpret the English law to be that if you are attempting to make an arrest on suspision and you are the first to attempt to use or use unlawful physical force on the other in the encounter a homicide would be manslaughter. But if you are attempting to make an arrest and you are not the first person to attempt to use or use unlawful physical force then any homicide you committed would be justified by the permission of the law, or if not justified by the permission of the law then excused from felony by the grace of the law on the principle of necessary self defense.

      But we don’t want to lose sight of the fact that Arbery actually committed arrestable offenses (trespassing, proweling, assault, and burglary) in Travis McMichaels presence 10 days prior to the attempted arrest, so he doesn’t have to justify the attempted arrest on the grounds of suspision. Also private persons had the permission of the English common law to arrest an offender on a “hue and cry” made by another private person and a “hue and cry” was just as good as an arrest warrant. In this case there seems to be evidence that a “hue and cry” was raised by the person living accross the street from the English house and witnessing Arbery trespassing, proweling, and committing a burglary.

  5. BIG O;

    My readings suggest that it remains unclear that it was Arbery that commited arrestable offenses in Travis McMichaels presence 10 days prior. However, as McMichaels will likely claim it was Arbery he saw that may be a moot point.

    1. My understanding was that Travis was on the phone with 911, which establishes the time, and Arbery was caught on video at the same time, but maybe not, maybe the house was to dark to identify him from the video.

    2. I guess your are right. It really doesn’t matter if it was Arbery or not, because as long as Travis thought it was Arbery based on his visual id of him then he had reasonable and probable grounds to suspect Arbery had committed a felony and a legal right to detain him.

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