Posted on October 20, 2021 by Andrew Branca in Uncategorized
Ahmaud Arbery Case Trial Coverage by Andrew Branca: Day 2
The opinions and statements made in this article are solely those of Andrew Branca and do not represent any position or opinion of CCW Safe. We chose to share this content in order to provide some insight to the trial process.
Arbery Case Day 2 Wrap-Up: Jury Selection Continues
Welcome back to our ongoing coverage of the Arbery Ahmaud case, in which defendants Greg McMichael, Travis McMichael, and William Bryan are being tried for murder and other charges in the shooting death of Arbery. I am, of course, Attorney Andrew Branca, for Law of Self Defense.
Today the court proceeded with jury selection, or voir dire, in the case, with the goal of empaneling 12 jurors and 4 alternates for the duration of the trial, which is anticipated to run into the third week of November (although I caution that such things are hard to predict).
The court has informed 1,000 local residents that they are prospective jurors in this case, with 600 of them reporting to the courthouse for the selection process this week.
Voir Dire As A Two-Step Process: General & Individual
The jury selection being used here is a two-step process. First, prospective jurors are brought in as groups of 20, and subject to general voir dire. Here they are asked general “raise your hand” type questions, by judge, State, and defense, and notes made of who raised their hand (or, more accurately, their identifying number placards) to what questions to allow for more focused follow-up during the second step of the process.
So, in more concrete terms, the jurors might be asked a “raise your hand” question like, “Have any of you ever been sworn law enforcement officers,” and then the court reporter and the attorneys would note which number placards were being held aloft–#53, #69, #45, and so forth, as an illustrative example. That’s largely what today’s general voir dire consisted of, and it’s what I expect all the general voir dire to look like until a final jury is empaneled.
In the second step of the jury selection process the prospective jurors are brought into the court room individually, for individual voir dire, and subject to more personal questioning by the State and defense (and less commonly by the judge). This questioning is done outside the hearing of other prospective jurors, so that the comments of one juror cannot potentially “poison” the other prospective jurors.
Good News and Bad News
Now for the good-news, bad-news.
The good news is that the first step of that process, the general voir dire of the prospective jurors in groups of 20, is being broadcast with both video and audio, allowing us to observe the proceedings and provide all of your with our insight and analysis. Specifically, the video is solely of the judge and lawyers, and the jurors are not shown on camera.
However, the audio during this first step of the process captures the entire room, so the occasional verbal response from a juror is also captured. Such juror comments are rare, however, because they’re mostly just raising their number placards as appropriate in response to the general voir dire questions asked of them.
The bad news is that the second step of the process once again has video solely of the judge and lawyers involved—but the audio is completely muted. The purpose of this is to protect the identity of the individual prospective jurors by not broadcasting even their voices, by which they might potentially be recognized. Unfortunately, it also means observation of this second step of the jury selection process provides us with no useful information for analysis purposes.
So, in terms of the consequences of the second step of the jury selection process—for example, the number of jurors dismissed or seated—we’ll be obliged to depend on the reporting of local journalists actually sitting in the courtroom or in the adjacent media room, and personally observing that second step of the process.
Four Major Segments of General Voir Dire
That said, we can share with all of you the proceedings of the first step of the process, the general voir dire of the groups of 20, and do so below, broken up into four major segments.
First, the opening remarks and questions of Judge Walmsley. Second, the questions of Senior Assistant DA Linda Dunikoski. Third, the questions of defense counsel Jason Sheffield (who was the only defense attorney among the defendants to ask questions in general voir dire this morning). Fourth, the closing remarks and cautions to the jury of Judge Walmsley.
At that point the court briefly recessed, to return shortly afterwards for the second step of the jury selection process, the individual voir dire, to which useful broadcast access is not provided.
Judge Walmsley Welcomes and Questions Prospective Jurors
The judge welcomed the group of 20 prospective jurors, and explained the basic two-step process of jury selection being used in this case.
I did find it interesting that Judge Walmsley referred to voir dire as a de-selection process, rather than as a selection process. I myself have never liked the use of the phrase “jury selection,” because of the reality that all we lawyers are really able to do in voir dire is to exercise a modest and limited ability to de-select specific jurors.
Besides that limited de-selection ability, we’re largely stuck with the pool of jurors that the system has drawn from the local community for the case. Accordingly, I routinely refer to voir dire as a de-selection process, but I’m not sure I’ve previously heard a judge do the same.
The judge then swore in the prospective jurors, read aloud the criminal charges—murder, felony murder, aggravated assault, false imprisonment, and criminal attempt to commit a felony—followed by his asking of a few very top-level questions of a sort usually mandated by statute in all criminal trials.
Are any of you related by blood or marriage to any of the defendants? All responded in the negative.
Have you formed or expressed any opinion as to the guilt or innocence of the defendants? Here fully eight prospective jurors—#39, #50, #69, #48, #72, #78, #88, #89—nearly half the group of 20, answered in the affirmative, and their responses were noted.
Have you any prejudice or bias either for or against the accused? Here four of the prospective jurors—#39, #50 #69, #78—answered in the affirmative.
Finally, is your mind perfectly impartial between the state and the accused—if not, raise your hand? Here four of the prospective jurors—#69, #48, #80, #89—answered that they were not impartial between the two sides.
With that, the judge turned the proceedings over to the State prosecutors.
Senior ADA Linda Dunikoski
ADA Dunikoski first informed the prospective jurors that they ought to raise their hands if the asked questions applied to them to any degree—the extent of that degree could then be followed up on during individual voir dire.
Her questioning took just over 40 minutes, and involved over 80 questions, not counting her spending a full 10 minutes asking prospective jurors if they knew any of a lengthy list of prospective witnesses in the case.
Given the multitude of the questions, I won’t read them all off here, but you can find the questions and the individual juror responses in the text version of today’s content.
Does anyone here not reside in Glynn County? This would be a mandatory condition for serving on the jury, but in any case did not apply to any of the prospective jurors in the group.
Anyone under the age of 18? Convicted of a felony and not had rights restored? Sat on grand jury proceedings that returned this indictment? Anyone currently a POST-certified law enforcement officer with arrest powers? No affirmative responses.
Anyone 70 years or older and does not want to serve on this jury? #78 answered in the affirmative.
Anyone who is full-time student enrolled in classes? No one.
Anyone fulltime caretake of child 6 years of age or younger, no other means of care? No one.
Anyone a fulltime caretaker of someone who is elderly or handicapped, no other means of care? #56.
Anyone have difficulty hearing? #69, #78, #48.
Anyone have difficulty understanding English? No one.
She then turned to issues of hardship and scheduling, noting that the trial could run through Friday, November 19. She defined hardship as something non-work related, in personal life, like surgery. #56 and #48 responded in affirmative.
Anyone related by blood or marriage to the current Brunswick DA, Keith Higgins? No one. Anyone know him personally? #62.
Anyone related by blood or marriage to former DA Jackie Johnson? No one. Anyone know her personally? #62.
The DA assigned to this case is Flynn Brody out of the Cobb County judicial circuit. Anyone here related to Flynn Brody or personally know Flynn Brody. No one.
She then identified herself and introduced her co-counsel prosecutors, Senior ADA Larissa Ollivierre and Senior ADA Paul Camarillo. Anyone know any of the three of us? No one.
Anyone here have an opinion about last year’s election in which DA Jackie Johnson was defeated by Keith Higgins and was elected to the position of District Attorney? No one.
Any opinion on how or why the Georgia Attorney General assigned the Cobb County DA to this case? No one.
Anyone unable to give the state a fair trial because the ADAs (prosecutors) are not from Glynn County, we’re from Marietta, Cobb County. No one.
Related by blood or marriage to former Glynn County ADA George Barnhill? I’ll note here that Barnhill had previously declined to prosecute this case, believing that the McMichaels and Williams acted lawfully. No one. Anybody know Barnhill personally? No one.
Anybody know George Barnhill, Jr., his son, a former Glynn County who is currently practicing law in Brunswick (where these events took place). #39 answered in the affirmative.
Anyone know Tom Durden of the Atlanta judicial circuit or related to him in any way? No one.
Does anybody know defense counsel Jason Sheffield and Robert Rubin [representing Travis McMichael]? No one.
We have Laura and Frank Hogue [representing Greg McMichael], does anybody know them? No one.
Then we have Jessica Burton and Kevin Gough, does anybody know them personally? No one.
Gough is a local attorney, has anyone ever used Gough as an attorney? No one.
Does anybody personally know Greg McMichael? #62.
Does anybody personally know Travis McMichael? No one.
Does anybody personally know William “Roddy” Bryan? #41.
Does anybody personally know Ms. Amy Elrod? #41, took over her position at her workplace.
Does anybody personally know Greg McMichael’s daughter, Lindsay McMichael? No one.
Does anybody personally know Greg McMichael’s wife, and Travis McMichael’s mother, Lee McMichael? #62.
The victim in this case is Mr. Ahmaud Arbery, does anybody know him personally? No one.
Know his mother, Ms. Wanda Cooper Jones? No one.
Know his father Markus Arbery Senior, or his brother Markus Arbery Junior? #65, the father.
Anyone served on a jury to a verdict before? #76, was foreman. Also #78, not a foreman.
Ever served on a grand jury? No one.
Anyone know Judge Walmsley? No one.
When you got the jury summons, did you look at legal documents on court web page? #39.
Anyone served in military? #62, #80, #85, #89.
Anyone has prior law enforcement training or experience? #62, #89.
Anyone related to or very close friend in law enforcement? #39, #50, #52, #42, #62, and #79.
Have work experience in social work? No one.
Anyone with background in counseling, psychology, or psychiatry? No one.
Anyone have work experience in legal field? No one.
Anyone have experience in criminal justice field broadly? No one.
Anyone related to or close friend in a district attorney’s office? #62.
Anyone with medical training, like a doctor. #41.
Anyone related by blood or marriage or close friend who is criminal defense attorney. #62.
Anyone know an attorney within criminal justice system at any level? #50.
Anyone who has had a notable bad experience with law enforcement? #69.
Any had a notable good experience with law enforcement? No one.
Anyone had a bad experience with a prosecutor? #69.
Anyone had a good experience with a prosecutor? No one.
Have you personally ever been arrested, prosecuted, convicted of a crime of something like DUI or something more serious. Not traffic violations. #65, #73, #76.
Close relative or personal friend arrested, prosecuted, convicted from DUI or more serious? #39, #44, #62, #65, #69, #72, #76, #79.
Ever been falsely accused of crime whether involved police or not? No one.
Close relative or friend falsely accused of a crime? #69.
Ever been the victim of a violent crime or crime against your person? #41, #79.
Close relative or friend ever been victim of violent crime? #65, #69.
Anyone ever witnessed violent crime in process? #65, #69.
Ever taken cell phone of a crime in process, even a DUI? #52.
Have you, close relative or friend ever been a victim of a burglary or a home invasion? #52, #44, #65, #72, #88.
Have you or close relative or friend ever had a gun stolen out of your car? No one.
Ever had to call 911 to report a crime? #39, #41, #52, #72, #69.
Anyone ever had to give a statement to law enforcement? #41, #65, #69, and #72.
Anyone ever been a witness at trial, any kind of trial, under oath? #52, #65.
Anyone ever taken it upon themselves to investigate a crime? #62.
Know of someone, close family or friend, taken it upon themselves to investigate crime? #62, #69.
When arrived at courthouse, did you see anybody you knew? #52, #42, #65, #89, and #39.
Know anybody in the room right now? #42, #65, #39.
Do you or anyone in household own a firearm? #39, #41, #52, #62, #69, #72, #73, #76, #85, #88, and #89.
Ever had to carry a gun as part of job? #62, #89, #39, #85 (in the Army).
Ever had non-military training with firearm? #39, #62, #69, #72, #76, #80.
Anyone lived in Glynn County for less than five years? #41, #44, #48, #50, #56, #76.
Anyone live in the Scittila Shores neighborhood here in Brunswick? No one.
Previously at any point in time? No one.
Anyone particularly familiar with location? #39, #42, #62.
Anyone here live within Royal Oaks community? #52.
Anyone used to live there? No one.
Anyone particularly familiar with that community? #39, #62.
Anyone here particularly familiar with the Fancy Bluff neighborhood because you lived there or know people there? #39.
Anyone currently lives near the street Boykin Ridge? No one.
Previously? No one.
Anyone has a religious, moral, or ethical conviction that would keep you from passing judgment on another person? Will never reach a verdict, guilty or non guilty? #42, #48.
Anyone have a private reason they’d be unable to pass a verdict? #80.
Does anyone here NOT belong to some social organization, religious, charitable, sports, professional organization, don’t belong to any such groups, go to conferences, none of that? #62, #72, #73, #79, #80.
Have you, relative, close friend arrested under circumstances where treated unfairly by either police or criminal justice system. #69, #79.
Have you, relative, close friend ever arrested for kidnapping or false imprisonment? No one.
For shooting someone? No one.
For murder? No one.
Anyone feel they will be unable to apply law as judge provides it? No one.
Anyone here who WANTS to serve on this jury? No one.
At this point ADA Dunikoski read through a lengthy list of prospective witnesses and asked if anyone in the room knew any of those people. If you’re interested in details on this point, I refer you to the video above, starting at 30:35, and continue for a full 10 minutes.
And with that, ADA Dunikoski turned the pool over to the defense.
Defense Counsel Jason Sheffield
It seems that defense counsel Jason Sheffield was selected from among the greater group of defense attorneys to ask their general voir dire questions on behalf of all them (although, technically speaking, he represents only Travis McMichael). His questioning of the pool took just over 16 minutes, asking about 20 questions.
Sheffield informed the prospective jurors that once they were questioned in individual voir dire, neither their faces nor their voices would be broadcast—and this has proven to be correct.
Sheffield then introduced Travis McMichael, having him stand up so the prospective jurors could see him clearly, and mentioning “formerly of Coast Guard, formerly of Metzer (sp?) Marine”.
This reference to “formerly of Coast Guard” would later drive objection from the state, and a request that the entire jury pool of 20 be dismissed as a group for having been “poisoned” by these references. I’ll come back to that in a moment.
Sheffield asked if any of the jurors recognized Travis McMichael, and none did.
He then introduced Greg McMichael, as Travis’ father, and asked if any of them knew him. #62 had previously indicated that he did, during State questioning, and re-affirmed that here.
He then introduced Roddy Bryan, asking if any of them knew him. #39 did.
Do any of you have a negative feeling about Travis McMichael? #48, #39, #69, #72.
Same question about Greg McMichael? #48, #72, #39.
Same question about Roddy Bryan? #48, #69.
Do you have a negative feeling about the criminal defense lawyers here, or criminal defense lawyers generally? No one.
Do you have NO firearms in your home? #42, #44, #48, #50, #56, #65, #69, #79,#78, #80.
Have any of you decided to vote for political candidate based on that candidate’s position to limit gun rights? Any type of limitations of guns. #39, #50, #72.
Do you oppose, don’t like, laws that allow people to carry guns openly or concealed and into public places? #50.
Have you attended or participated in any demonstrations or marches or gatherings in and around the social justice movement happening in our country, either before or after the shooting here? #42.
If not participating in such events, have you supported in any way the Black Lives Matter movement, a very good important movement in our country, have you positive thoughts, financially supporting, bumper stickers, yard signs? #39, #44, #50, #65, #72, #73.
Do you feel you have ever been denied opportunity because of your ethnicity, gender, or race? #69.
Have you ever been looked at suspiciously or been falsely accused because of your race or ethnicity? No one.
Do you agree with statement, “the old Georgia state flag, in operation from 1956 to 2002, is a racist symbol?” #48, #50, #72.
Do you agree with statement, “people of color are not treated fairly/equally by criminal justice system?” #44, #50, #69, #72, #73.
Do you believe that police do not treat black people and white people the same or equally? Or ethnicity? #50, #65, #69, #72, #73, #79.
Do you agree that a psychologist or psychiatrist could find a mental illness in just about anybody? No one.
Does anybody have anything going on at work or home that would impair your ability to give us your full attention every day here in court? #39, #50, #69, #89.
Does anybody have a physical condition of some sort that would require more frequent breaks than the court would normally provide, impair full attention? #48, #65, #69, #85.
Lastly, if any other concern about serving on this jury, won’t specifically suggest what the concern might be, but you feel like your service and ability to make a decision in this case after hearing all the evidence, that this thing in your world is going to prevent you from making that decision because of what you think will happen after the trial is over? #41, #50, #69, #79.
It’s worth noting on this last question that the judge had excluded a proposed defense question asking if prospective jurors would be concerned about the safety of themselves of their family, or their livelihood, or their reputation, if they served on the jury. This last question was pretty clearly an effort to get to that point without using an explicit reference to matters of safety.
And that wrapped up Attorney Sheffield’s general voir dire of this jury pool.
Judge Walmsley Closing Remarks and Cautions to Prospective Jurors
Judge Walmsley then took over to wrap up general voir dire of the pool of 20 prospective jurors. He informed them they’d take a short recess and then transition into individual voir dire in which they would be questioned separately to follow up on these and other questions.
He cautioned them that until he instructs them otherwise that they were not to discuss the case amongst themselves or others, not to search out information about the case, not visit the neighborhoods involved, none of that.
If anyone approaches them about the case, or is discussing the case within their hearing, they are to notify the court.
And with that the court recessed, to come back into session a short time later with individual voir dire.
State’s Objection to Reference of Travis McMichael as “Former Coast Guard”
I mentioned earlier that the defense had introduced Travis McMichael to this pool of prospective jurors as being “former Coast Guard.” You can see that brief clip here:
Apparently the State took considerable offense to this, and asked the judge to completely dismiss the 20-person pool of prospective jurors in its entirety on the grounds that the “former Coast Guard” reference had improperly characterized Travis McMichael in a positive light to the prospective jurors.
Attorney Sheffield responded that he’d mentioned the Coast Guard experience not to improperly burnish the character of Travis McMichael, but merely to provide context for the jurors to assist them in recalling where they might have previously met Travis.
Sheffield also noted that when the State was reading its witness list and asking the prospective jurors if any of them know any of the prospective witnesses, the State identified those witnesses who were associated with police departments to provide jurors with a reference point—and that’s all he was doing when he mentioned the Coast Guard with respect to his client, Travis McMichael.
The question was argued before Judge Walmsley after the pool of jurors had left the room, and ultimately he decided against dismissing the pool en masse. Here’s the video I captured of that exchange, with my apologies for failing to capture the first mention of the objection by the State:
Individual Voir Dire: No Useful Coverage
As noted, individual voir dire is broadcast without sound, so that broadcast is of little use for purposes of analysis. Basically the broadcast of individual voir dire consists of video of this scene, without sound, for hours:
Presumably local journalists will be reporting the bare facts such as how many jurors were dismissed and how many seated, and we’ll share that information with all of you as it comes our way.
OK, folks, that’s all I have for you on these jury selection proceedings today.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.
Attorney Andrew F. Branca is in his third decade of practicing law, specializing in self-defense law of the United States, where he is an internationally recognized expert. Andrew has contributed in this context by the Wall Street Journal, National Review, the Chicago Tribune, the Washington Post, and many others, including nationally syndicated broadcast media. Andrew is also a host on the Outdoor Channel’s TV show The Best Defense and contributor to the National Review Online.
Andrew is a former Guest Instructor and subject matter expert (SME) on self-defense law at the Federal Bureau of Investigation’s National Academy at Quantico and the Sig Sauer Academy, an NRA Life-Benefactor member, an NRA Certified Instructor, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions. Andrew teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country.
In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.
Recently, Andrew won the UC Berkeley Law School Debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting on self-defense law.