One by one, attorneys defending the three white men accused of killing Ahmaud Arbery in a small Georgia community struck people of color from the list of potential jurors. Of the 12 strikes the defense team received, they removed 11 African Americans from the jury pool. 

A lone Black juror remained on the 16-person jury that will determine the fate of the three white defendants, Gregory McMichael, Travis McMichael and William Bryan. 

Despite protests outside of the courthouse about the racially unbalanced jury and an admission from the presiding judge that there appeared to be intentional discrimination in its selection, the case proceeded and is now in its third week. The jury includes 12 primary jurors and four alternates.

In Glynn County, Georgia, where the trial is taking place, around 25% of the population is Black, but only 5% of the jury pool is Black.

The issue of racially unbalanced juries was also present in the trial of Kyle Rittenshouse trial, who a jury recently found not guilty of killing two men and injuring in Kenosha County, Wisconsin, in August 2020. Although Rittenhouse and the three people he shot were all white, the shootings took place amid civil unrest and Black Lives Matters protests following the police shooting of Jacob Blake, a 29-year-old Black man in Kenosha. There were 19 white and one Hispanic member of Rittenhouse’s jury.

From the day Arbery was killed in late February 2020, race has been at the center of the case. Arbery was shot on Feb. 23 last year during an encounter with the McMichaels in a neighborhood of Brunswick. Bryan, a neighbor, recorded the deadly encounter. Arbery’s family claims he was out jogging while the defendants say they were attempting a citizen’s arrest, believing that Arbery was responsible for a string of recent thefts in the neighborhood. 

More than 50 years ago, the U.S. Supreme Court found that using race in jury selection is unconstitutional, and yet it remains a common problem in courtrooms around the country. Prominent community leaders in Glynn County and around the country have asked why. 

“This jury is like a black eye to those of us who have been here for generations, whose ancestors labored and toiled and set a foundation for this community,” Delores Polite, community activist and distant relative of Arbery’s, told the New York Times earlier this month. 

But the problem isn’t new. 

“This country, including the South, has a history of excluding Black people and people of color from jury service,” said Angie Setzer, a senior attorney with the Equal Justice Initiative in Montgomery, Alabama. “From the founding, that has really been a part of our national history. And that continues today at every step of the process.”

But long before the jury convenes, a series of hurdles have the potential to keep people of color out of the jury box.

How are potential jurors selected?

In most states, jurors are primarily selected from a list of registered voters, drivers license holders and, in some cases, employment records, according to Setzer. 

Using voter rolls cuts down on the list of potential jurors from the beginning given disproportionately lower voter registration among African Americans and other people of color. 

“That’s one point where people of color and juries of color can be excluded, because if a jurisdiction is relying on a list that doesn’t actually represent the community, then your juror list will not necessarily represent the community,” said Setzer.

For example, Black people nationwide are less likely to own a car and have photo ID, including a driver’s license, which can be due to socioeconomic or systemic factors.

“It can be expensive to be a juror,” said Setzer. “Every jurisdiction pays jurors differently, so sometimes jurors are excluded, for example, because they can’t afford to take time off or who have childcare costs or transportation costs associated with jury duty.”

And that, according to Setzer, has a profound effect on racial representation on juries. 

“The right to a jury of one’s peers is one of these fundamental ideas enshrined in our Constitution,” she said. “It’s a way for ordinary citizens to defend against government overreach or overzealous prosecutors or judges who are not protecting the rights of the accused. So I think that idea of a racially balanced jury is very much at the heart of our democracy.”

But even if people clear those hurdles, inside the courtroom attorneys can weed out even more potential jurors.

Strike for cause

The process starts with what are known as strikes for cause and often result in the removal of people of color at disproportionately high rates, according to a recent Equal Justice Initiative report.

In North Carolina, for example, judges were 30% more likely to remove jurors of color who they believed could not reach a fair and impartial verdict compared to white prospective jurors, according to a 2018 study in the University of Illinois Law Review that analyzed 1,300 felony trials and 30,000 jurors.

A 2020 study of 400 trials in Mississippi and Louisiana found that Black jurors were three times more likely to be removed than their white counterparts.

“Louisiana prosecutors used 58.9% of their challenges for cause to remove Black prospective jurors, even though only 33% of the potential jurors were Black,” the report’s authors noted. “In Mississippi, the numbers were even more striking: prosecutors used 79.5% of their challenges to remove Black prospective jurors, even though only 34% of prospective jurors were Black.”

Peremptory challenges

After attorneys remove potential jurors with strikes for cause, judges allow the prosecutor and the defense a certain number of peremptory challenges, meaning attorneys can eliminate jurors without any particular reason.

Used in nearly every state, the history of peremptory challenges is closely intertwined with the legacy of racial discrimination. 

During Reconstruction, the Civil Rights Act of 1875 meant more Black people were called to jury service. And it was after this that peremptory strikes began clearing Black people from the jury box, according to a 2021 study featured in the St. Mary’s Law Journal.

That practice continued without significant challenge until 1965, when the U.S. Supreme Court heard Swain v. Alabama. Robert Swain, a Black man, had been convicted of raping a white woman. He was sentenced to death by an all-white jury. At that time, 26% of the county was Black but no Black person had served on a jury there since 1950.

Swain appealed to the U.S. Supreme Court claiming racial bias in the jury selection. The court upheld his death sentence, but created a legal framework that offered some protections in future cases.

“The United States Supreme Court finally ruled that you can’t use peremptory strikes to exclude people based on race,” said Setzer. “But what the court did in Swain was to say that you have to show that the prosecutor is removing people based on race in more than just one case. You have to show that there’s a pattern. And what happened is that it became such a high burden to meet that only few people were able to meet this standard.”

That provision made the law practically unenforceable. Twenty years later, in 1986, the Supreme Court overturned the requirement for defendants to prove a pattern of discrimination when it ruled on Kentucky v. Batson. In that case, James Batson, a Black man, appealed to the Supreme Court after being convicted of burglary by an all-white jury. The decision in his case meant that defendants no longer needed to find a pattern of racial discrimination in jury selection.

Under that ruling, when attorneys’ preemptory strikes are challenged, they must give reason that cannot be based on sex, race, ethnicity, or religion.

But Thurgood Marshall, the first Black Supreme Court justice, correctly predicted that the landmark ruling would not see an end to the issue. 

“The decision today will not end the racial discrimination that peremptories inject into the jury-selection process,” wrote Marshall as part of the court’s opinion. “That goal can be accomplished only by eliminating peremptory challenges entirely.

In short, Justice Marshall warned that prosecutors would find other reasons to strike jurors of color. 

In the 35 years since the Batson ruling, only Arizona has rid the legal system of peremptory challenges, effective in January 2022. 

One of the most illuminating examples in recent years and Justice Marshall warning took place in Mississippi during the trials of Curtis Flowers, a Black man tried six times for the murders of four people in July 1996. Four of the trials resulted in convictions but were overturned on appeal. In five of the six trials, Flowers was sentenced to the death penalty. 

In two of the trials, higher courts ruled that the prosecutor in the case, Doug Evans, discriminated against Black jurors. The first time was in 2004 during Flowers’ third trial. That conviction was overturned by the Mississippi Supreme Court in 2007 after justices ruled Evans used his 12 peremptory strikes exclusively on Black jurors. 

After more than 20 years in prison, in December 2019, Flowers was released from prison. The U.S. Supreme Court had overturned his murder conviction citing of racial discrimination. Flowers’ case was also highlighted by a popular podcast and Mississippi elected a new attorney general who declined to retry Flowers.

It’s unclear what the outcome will be for the men on trial for killing Arbery, but it’s likely that the verdict will bring into focus the question of whether a jury that does not reflect the community can deliver justice.

“Jury service is really critical because it is the weight of the community — the conscience of the community, the way it gets to express itself. And if we don’t have competence in that system, then that really damages the heart of our legal system and citizens’ confidence in it.”