Washington (CNN)The possibility that three White men accused of chasing and killing Ahmaud Arbery may be acquitted had Georgia residents tense and anxious when this week's approval of a nearly all-White jury in the men's trial became a reminder of why Black people don't trust the criminal justice system.
'A jury should reflect the community': The racial breakdown of the jury for the trial for Ahmaud Arbery's killing
Scholars and law experts said that the racial breakdown of the jury for the trial for Arbery's killing is reminiscent of the Jim Crow era and quickly drew comparisons with the aftermath of Emmett Till's death.
"Here some 65 years later, we've advanced to the point of having potentially one Black juror who will sit on this jury," said Daryl D. Jones, an attorney with the Transformative Justice Coalition, referring to the 1955 trial in which the two men arrested in Till's slaying were acquitted by an all-White jury.
When opening statements began on Friday in the Georgia trial of the men accused of chasing down and killing Arbery last year, only one person of color was part of the jury hearing the case. A nearly all-White final panel of 12 jurors and four alternates was selected earlier this week despite accusations of intentional discrimination toward qualified Black jurors. The jury's makeup has drawn criticism from Arbery's family and put into focus the South's history of racial exclusion in jury selection.
Glynn County Superior Court Judge Timothy R. Walmsley approved the jury selection on Wednesday as he dismissed the prosecution's efforts to reseat them. Prosecutors had raised what is called a "reverse Batson," a challenge based on a 35-year-old US Supreme Court decision that ruled it unconstitutional for potential jurors to be struck based solely on race or ethnicity.
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 that 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. Walmsley ruled that there were valid reasons, beyond race, for why jurors had been 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 that the final panel doesn't represent the population of the city where 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 with 40% who are White, data from the Census Bureau shows.
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 it 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.
Earlier this year, 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 was 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 the author of "Entertaining Race," said that the jury selection in the Georgia trial was a "hearkening 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 had been 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 their belief that the criminal justice system treats Black people differently from White people.
To Barbara Arnwine, the 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.