Majority-white jury in Ahmaud Arbery case like a ‘relic of the old South,’ expert says

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• Judy Woodruff:

  Just before opening statements are set to begin tomorrow, there are new questions about jury selection in the trial of the men charged with killing Ahmaud Arbery.

  Three white men are accused of murdering Arbery, who is black, in Southeastern Georgia last year. Cell phone video showed the man chasing Arbery down. And it spawned nationwide protests.

  As John Yang reports, jury selection added even more questions about race into this trial.

• John Yang:

  Judy, in a county whose population is nearly 30 percent black, only one African American is on the jury of this racially charged case.

  The judge in the case said there appeared to be intentional discrimination the part of the defense, but said he did not have the legal authority to do anything about it.

  Paul Butler is a professor at Georgetown Law and a former federal prosecutor.

  Thanks for being with us.

  What do you make of how this jury ended up?

  Paul Butler, Professor, George Washington University School of Law: You know, it almost sounds like a relic of the old South.

  We have a case in which an African American man was hunted down and killed by three white men. Those men have been charged with a number of crimes, including murder, false imprisonment, and aggravated assault. And now they have virtually an all-white jury, 11 white people and one African American.

  It doesn't sound like something that should happen in 2021, especially in a jury district that is almost one-third African American

• John Yang:

  You talk about a relic of the old South. In the relic of the old South, it would have been the prosecution that had done this. But, here, it was the defense.

  Remind us how this process works and what latitude, what leeway the judge had to do something about this.

• Paul Butler:

  So, during jury selection in a criminal trial, after the judge has found that potential jurors are qualified to sit on the case, both the prosecution and the defense get a certain number of strikes, which they can use to remove jurors for any reason other than race or gender.

  If one side believes that the other is improperly striking jurors because of race or gender, they can require the judge to hold a hearing. In that event, the person who is removing the jurors has to identify a race-neutral reason why they struck those jurors.

  It could be because of how they answered a particular question. So, in this situation, the judge held that hearing yesterday, and found that the reasons offered by the defense for getting rid of 11 out of 12 prospective African American jurors were race-neutral.

• John Yang:

  Even though he said in open court that he suspected that there was intentional discrimination going on.

  How unusual is it for a judge to say that and yet — and do nothing about it, let the jury — let it proceed and not start all over again?

• Paul Butler:

  John, I have never heard of another case in which a judge has found intentional discrimination, but then declared there's nothing that they can do about it in the jury selection process.

  What the judge said was that the reasons that were offered by the defense, including that some of the jurors knew some of the prospective jurors had heard stuff about the case, had formed opinions or talked with family members about it, the judge found that all of those were race-neutral.

  But if you look at other jurors, white folks who were allowed to remain on the jury, they answered some of the same questions the same way. For example, one white juror said that she thought that Mr. Arbery had been racially profiled. She's still on the jury.

  Another white juror said that she had long conversations with her husband about the case. She's still on the jury. So, there's a concern that the defense used answers like that from Black prospective jurors to strike them.

  And, again, if they're treating African American and white potential jurors differently, that's unconstitutional.

• John Yang:

  In this era of Black Lives Matter, what does the fact that this jury is largely white, what does it say to you?

• Paul Butler:

  It says there we have a long way to go for all Americans to realize equal justice under the law.

  The Supreme Court has said that it's important to have African Americans in cases that involve race because that makes the verdict more legitimate. In this case, if there's a verdict of not guilty or even a hung jury, almost certainly, the fact that the jury was virtually all white will be blamed.

  Another interesting comparison to the Derek Chauvin prosecution is that, in a lot of high-profile cases during the Black Lives Matter era, to the public, they're all about race. But race doesn't actually come up in the courtroom. It didn't in the Chauvin trial. It's unlikely to come up in the trial of Kyle Rittenhouse that's going on right now.

  But, in this trial, race will be front and center. It's part of the prosecution's theory about why these men and how these men came to take the life of Mr. Arbery.

• John Yang:

  Opening arguments begin tomorrow.

  Paul Butler of Georgetown University, thank you very much.

• Paul Butler:

  Always a pleasure, John.

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