BRUNSWICK, Ga. – Twelve jurors, along with three alternates, will be seated and sworn in Friday, when opening statements are expected in the trial of the three men accused of chasing and killing Ahmaud Arbery, according to the judge.
There were four alternates, but Superior Court Judge Timothy Walmsley announced during a motion hearing Thursday that one juror will not be able to participate due to medical issues and an alternate is now one of the active 12 members of the panel.
Throughout the hearing, the judge heard motions from both sides on the evidence that he will allow to be shown in court during the trial of the men charged with murder in the death of Arbery. Arbery was fatally shot after a white father and son, Gregory and Travis McMichael, spotted the 25-year-old Black man running through their neighborhood outside the port city of Brunswick on Feb. 23, 2020. They armed themselves and pursued him in a pickup truck, and then a white neighbor, Bryan, joined the chase in another truck. No one was charged until two months later, after Bryan’s cellphone video of the chase and shooting leaked online and stirred a national outcry.
Defense attorneys say the McMichaels and Bryan committed no crimes. They say Arbery had been recorded by security cameras inside a nearby house and they suspected him of stealing. Greg McMichael told police his son opened fire in self-defense after Arbery attacked with his fists and grappled for Travis McMichael’s shotgun.
Investigators have said Arbery was unarmed and there’s no evidence he had stolen anything.
One of the motions discussed Thursday was to deny showing the body camera footage of the second officer who responded to the scene. Defense attorney Jason Sheffield, who represents Travis McMichael, asked if it was necessary to show the footage of Arbery’s body. Instead, he wanted to show photos, saying the video is inflammatory. The state said it was important to show the video because it’s what took place at that time. The judge denied this motion, allowing it to be shown. He did acknowledge the graphic nature of the video.
Then both sides argued over the use of the Confederate flag on a license plate. The state said any racial intent is evidence of motive and not character but said “if Travis McMichael opens the motive door, the state is going to walk through it.” The judge ruled to take this motion under advisement because he said there are parallels with this motion and the motion to include the fact that Arbery was on probation at the time of the shooting.
Earlier in the day, Walmsley granted two requests by the state — a motion to eliminate the defense’s use of force expert witness and a motion forbidding the defense from trying to use the evidence in a toxicology report to talk about Arbery’s mental health.
The state never planned to use Abery’s toxicology report, prosecutors said, because there was nothing in his system except a small amount of THC. The defense argued THC can cause aggression and confrontational behavior. Sheffield said the toxicology report with THC could come in if attorneys find an expert who can speak to the effect of THC without addressing Arbery’s mental health issues.
On the use of force expert, the state said that having this expert testimony would be confusing and misleading because none of the defendants were law enforcement officers. The defense argued Travis McMichael’s 10 years of experience in the U.S. Coast Guard doesn’t just go away and it didn’t matter if they were police officers or private citizens.
Other details that attorneys discussed in court included what photo they’ll use to show Arbery while he was alive. Sheffield said the photo that the state wants to use of Arbery — his high school graduation picture — isn’t an accurate picture of Arbery at the time of his death. The court decided to allow this picture of him.
They also talked about Larry English, the owner of the home that was being built in the Satilla Shores neighborhood. The defense and the state agreed to use English’s deposition because of his health issues.
Another motion that was open was on Bryan’s video playing during opening statements. They are all planning to play portions or stills from the video.
There were also a few housekeeping items discussed. The jury will be socially distanced and seated facing the judge.
Outside the courtroom on Thursday, family members and supporters of Arbery again rallied outside the Glynn County Courthouse as the trial moved past jury selection.
The Transformative Justice Coalition also commented about the judge ruling Wednesday that he’ll seat one Black juror and 11 white jurors to decide the trial.
“This is the Thursday after what we now call the ‘Infamous Wednesday.’ ‘Infamous Wednesday’ will go down in history as the day that white defense attorneys were allowed to defend white vigilantes by excluding 11 of the 12 Black jurors from service for reasons that make zero sense,” said Barbra Arnwine, president and CEO of the Transformative Justice Coalition.
Later in the day, the Transformative Justice Coalition marched from the courthouse through downtown Brunswick.
Attorney Ben Crump released a statement Thursday, saying, in part: “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.”
The judge said that “this court has found there appears to be intentional discrimination in the panel,” but Walmsley said his ability to change the jury’s racial makeup was limited because defense attorneys were able to give nonracial reasons for their decisions to strike the potential Black jurors.
The jury panel will return at 9 a.m. Friday.
The Associated Press contributed to this report.