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.
America’s long history of excluding Black people from jury service
“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.
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.”
“Is it surprising? Maybe not for the area of the country where it occurred in,” Dyson said.
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.