A traditional “Batson challenge” is usually brought up in criminal cases of Black defendants being tried before all-White juries when there’s a belief that prosecutors are excluding jurors based on race. The “reverse Batson” follows the same principle but instead addresses the actions of defense attorneys.
Paul Callan, a CNN legal analyst who is a former New York homicide prosecutor and a media law professor, said the only remedy would be for the judge to declare a mistrial and start the jury selection again in Glynn County or move the case to another county.
But at this point, that remedy appears to be unlikely, Callan said. Judge Walmsley ruled that there were valid reasons, beyond race, for why jurors were dismissed.
“He’s probably wrong on accepting those explanations that were given by the defense attorneys, but as a judge, he’s allowed to make that determination and it’s very difficult to appeal that in a reverse Batson,” Callan said.
Ben Crump, an attorney representing the Arbery family, expressed his disappointment in the jury selection saying the final panel doesn’t represent the population of the city were both Arbery and the defendants lived.
“A jury should reflect the community. Brunswick is 55% Black, so it’s outrageous that Black jurors were intentionally excluded to create such an imbalanced jury in a cynical effort to help these cold-blooded killers escape justice,” Crump said in a statement.
Glynn County, the coastal Georgia county where the trial is taking place, has a population of about 85,000 residents. More than 26% are Black while about 69% are White, according to 2019 data from the Census Bureau.
About 55% of the 16,200 residents in the city of Brunswick, where both Arbery and the defendants lived, are Black, compared to 40% who are White, data from the Census Bureau shows.
America’s long history of excluding Black people from jury service
The Supreme Court made selection of jurors by race unconstitutional in 1986 after America’s criminal justice system had been excluding Black people from jury service since its founding, said Angie Setzer, a senior attorney with the Equal Justice Initiative, a nonprofit organization that provides legal representation to prisoners around the US.
“At the outset, the Constitution denied Black people the right to serve on juries by classifying enslaved Black people as property,” Setzer said. “Most states continued to exclude even free Black people from jury service.”
During Reconstruction, more Black people were allowed to serve on juries in some jurisdictions, including New Orleans. It wasn’t until the Civil Rights Act of 1875 that became illegal to exclude people from jury service based on race.
The exclusion of Black people “nevertheless continued. Even if it wasn’t overt, it was very clearly happening through the use of other mechanisms,” Setzer said.
In 2010, the Equal Justice Initiative released a report detailing how racial bias in jury selection persisted in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee, even more than a century after the Civil Rights Act of 1875 passed.
The report states that researchers found evidence that some district attorney’s offices had explicitly trained prosecutors to exclude people of color from jury service and taught them “how to mask racial bias to avoid a finding that anti-discrimination laws have been violated.”
Michael Eric Dyson, a professor of African American and Diaspora Studies at Vanderbilt University and author of “Entertaining Race,” said the jury selection in the Georgia trial was a “harkening back to Jim Crow America.” It also reinforced the idea that Black people are not taken “seriously in the judicial system except to assign punishment,” he said.
“Is it surprising? Maybe not for the area of the country where it occurred in,” Dyson said.
Prosecutors in Georgia have been accused in the past of illegally taking race into consideration as they struck potential Black jurors. In 2016, the Supreme Court ruled in favor of a death row inmate who was convicted of murder by an all-White jury nearly 30 years before.
Through an open records request, the attorneys for Timothy Tyrone Foster obtained the notes the prosecution team took while it was engaged in the process of picking a jury. The notes showed that potential jurors who were Black had a “b” written by their name.
During the weeks-long jury selection in the trial of the three men accused of killing Arbery, defense attorneys used several reasons to strike jurors, including their support of Black Lives Matter and if they believed the criminal justice system treated Black people differently than White people.
For Barbara Arnwine, president of the Transformative Justice Coalition, the jury selection was unfair and she questioned the way history and racial dynamics in the US were considered in the process.
“There’s no dispute about the fact that this criminal justice system treats Black differently than it does Whites, there’s study upon study. How did that become grounds for discriminating against Black jurors and striking them out?,” Arnwine said.
CNN’s Nicquel Terry Ellis contributed to this report.