ATLANTA — As jury selection continues in the trial over Ahmaud Arbery’s death, lawyers for the three defendants expressed concern over whether demonstrations near the courthouse could intimidate potential jurors. The trial judge says prohibiting such demonstrations would violate the First Amendment.
On Tuesday, Judge Timothy Walmsley denied a defense motion filed to bar groups from gathering near the courthouse. Kevin Gough, the attorney defending William “Roddie” Bryan, filed the motion saying such gatherings would make it difficult to ensure his client gets a fair trial.
“If there’s any evidence out there that would suggest that there’s been any effort — conscious or unconscious — to tamper with this jury or influence these jurors, whether here on the courthouse steps this morning, or in Black media, the state has an obligation to pursue it,” Gough said Monday while addressing the court.
Ahmaud Arbery, an unarmed 25-year-old, was shot and killed by Travis McMichael in a neighborhood outside Brunswick on Feb. 23, 2020. McMichael, and his father, Greg McMichael, were both armed and riding in a pickup truck when they began chasing Arbery as he ran through their neighborhood after leaving a house nearby that was under construction. The McMichaels contend they were relying on Georgia’s then-existing citizen’s arrest law to detain Arbery, who they suspected in a string of neighborhood break-ins.
Bryan, a neighbor, soon joined the chase in his own pickup truck and filmed the cellphone video of the final moments of Arbery’s life. When the two pickups hemmed in Arbery, he charged at Travis McMichael and was shot three times at close range as he tried to take his shotgun.
The shooting thrust the Brunswick area into a national spotlight, drawing outrage from activists and galvanizing state authorities and legislators. The death was followed by demonstrations as droves of protesters stood against what they said was a racially motivated shooting that had happened in broad daylight.
Jury selection in the case began on Oct. 18 and stretched into the following week. The defense counsel said having public gatherings during jury selection may sway prospective jurors in one direction or another.
“The ‘carnival like’ or ‘circus like’ atmosphere outside the Glynn County Courthouse last, as well documented in the mainstream media, cannot continue without violating defendant’s rights to due process and a fair trial,” the motion filed by Gough said in part.
The motion referenced a series of animated gatherings that took place in the public courtyard adjacent to the courthouse during the first week of jury selection. On Oct. 18, a crowd of ministers, members of Glynn Clergy for Equity, the NAACP and community supporters gathered to exchange hugs and handshakes, then began to sing.
Trevor Thomas, a member of the Saint Mark’s High School choir, led the crowd through the first verse of “Lift Every Voice and Sing,” known in the African-American community as the Black National Anthem. The assembly moved from the courtyard to the steps of the courthouse and repeated the verse, softening their song to a hum as Pastor John Perry of Mt. Sinai Missionary Baptist Church led them in a prayer.
“Father, as your children, we come before you, petitioning you that you will be with our county, that you will be with our city, that you will be all of the officials, father, that are a part of this process,” Perry said.
The prayer closed and the assembly sang the refrain one more time, before a deputy came from inside the courthouse, thanked the group for the song and informed them that they could not remain on the building’s steps.
Brunswick native Dwala Nobles, who lived in Atlanta for more than 40 years before moving back three years ago, called the need for such a gathering painful.
“But the hope lies in, you know, that we can gather today and support the family in particular,” she said, as the crowd of clergy and community members dispersed. “That’s where my head has been. That’s where my thoughts have been. That they will have the justice that they deserve. This is something that we experienced way too often in our country.”
The group of clergy dispersed shortly after, but were soon replaced by spectators from the Transformative Justice Coalition who gathered in a grassy area a few yards away from the courthouse steps.
Most toted signs reading “Justice for Ahmaud.” Two children, one on a tricycle and another on a scooter, wheeled across the courtyard with the printed signs pinned to their backs like capes. The group would remain outside the courthouse for the next five days, at times being joined by the Arbery family and their attorneys.
Such gatherings are protected by the First Amendment and can’t be restricted by the government without compelling interest, according to Atlanta civil rights attorney Gerry Weber.
“Here, the standard would have to be impairing, in a dramatic way, the fair trial right of the accused,” Weber said. “That standard is essentially, almost never met.”
Due to the outcry and media attention the case has garnered, proving that a demonstration taking place outside the courthouse is impeding with a fair trial would be a tall order, Weber said.
“If jurors happen to hear in some way or observe that there are people outside the courtroom who have those views, it’s not going to impair the fair trial right of the accused,” he said. “It’s just kind of to be expected given the publicity of the case and the strong feelings about what happened.
In court, Gough contended there was reason to prohibit the gatherings. He claimed their purpose was not to uplift Arbery’s family but rather to intimidate potential jurors and teach citizens how to bypass the jury selection process.
“What at first looks, when we all come in the courthouse on Monday morning, like a very innocent attempt by a civil rights group to promote voting rights, it turns out to be something much different and much more centrally impacting the case,” he said.
Gough also referenced tweets from Lee Merritt, the attorney representing Arbery’s mother Wanda Cooper Jones. In one, Merritt posted an interview he had done related to the jury selection process and wrote: “Register to Vote. Show up for jury duty. Remember this phrase: ‘I can be fair.’” Gough said in another, Merritt criticized the judge about a prospective juror being qualified, citing her job title as something that should have led to her being struck.
“In short, Lee Merritt, Ben Crump, the Arbery family, with the help of (the Transformative Justice Coalition) and the mainstream media have put on a clinic as to how to influence a juror, and a jury, without penalty, sanction or prosecution — with not so much as a rebuke by this court,” Gough wrote in the motion.
Gough asked the court to bar demonstrations and signs in the entire block in which the courthouse sits. He asked that the judge order that any demonstrations be moved to the neighboring block of land, which is not visible from the courthouse. When the judge denied the motion, he pointed out that the area around the courthouse is a public space.
“The court does not find that the movement has met its burden to limit the first amendment rights of any individuals that may come to the courthouse grounds, which is a public place,” Walmsley said, adding that the sheriff’s office has not reported and issues with the demonstrations that would lead him to be concerned about them.
The judge also noted that prospective jurors had been asked if they had noticed the signs and demonstrations as they entered the building.
“I have not heard yet in jury selection — which has been thorough — that these influences that are claimed have occurred,” he said.
Walmsley said he was concerned about social media posts that may jeopardize the privacy of prospective jurors by stating personal, identifying information about them.
“It troubles me significantly that any individual separate from the lawyers in front of me here and the media would be taking it upon themselves to create a narrative that does not comply with this court’s clear wishes with regard to jury selection, identifying jurors and using platforms to influence the public,” he said.
The judge said he would need to think through how he would deal with such statements from people other than the attorneys involved in the case and the reporters permitted to enter the courtroom.
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