Lessons from Real Jury Trials: Part 1
What can prospective jurors learn from jury selection in the trials of McMichael, McMichael, and Bryan for the death of Ahmaud Arbery and Markeith Loyd for the death of Debra Clayton?
With a number of high profile jury trials in progress or coming up, I’ll occasionally be sharing some observations of how the state undermines or attempts to undermine the rightful role of jurors (or, when possible, how the state supports it).
Please remember that the Fully Informed Jury Association takes no position on what should be the outcome of any case in progress. What we are concerned with here is the process—not only as it is playing out in these cases, but also so that prospective jurors know what to expect and prepare for in other cases for which they may be called to serve on a jury.
This week I’ve been able to view portions of two trials being livestreamed (at least in part) that are currently in the process of jury selection. These trials are State of Georgia v. Travis McMichael, Greg McMichael, and William Bryan regarding the killing of Ahmaud Arbery and State of Florida v. Markeith Loyd regarding the killing of Debra Clayton.
Criminal trials are not normally as accessible to the general public as they have been during the COVID-19 pandemic. During this pandemic at least, many are being streamed online at least as a toke
An attempt to fulfill the Constitutional requirement that criminal trials be public. This requirement does not become optional even while courtrooms are closed to public observers or are limiting public observation to limit the spread of COVID-19.
Thanks to this new (and probably temporary) level of accessibility, I have been able to view key parts of these trials specifically regarding jury-related issues. Here are a few things that stood out for me.
Masks Impede Communication
In both State of Georgia v. Travis McMichael, Greg McMichael, and William Bryan and in State of Florida v. Markeith Loyd, there have been multiple occasions on which people in the courtroom have expressed difficulty with verbal communication due to masks being worn.
For the first three days of the trial of Markeith Loyd, Judge Marques was masked most of the time, but, after multiple instances of people saying they could not hear her well during jury selection, by day 4 the mask had come off and it is regularly off thereafter. From time to time, she also asked one of the attorneys, who are all masked, to please use a microphone so she can hear him.
I don’t know how this is affecting jury selection in State of Georgia v. Travis McMichael, Greg McMichael, and William Bryan. In that case, Judge Walmsley has decided that neither jurors’ faces nor their voices when they are discussing anything in detail will be broadcast outside the courthouse to the general public. Consequently, most of the questioning of jurors is completely inaccessible to the public. However, I did observe on day 1 before jury selection that an attorney had trouble understanding the judge and indicated the mask was an impediment.
Peremptory Strikes
One of the topics discussed on day one of State of Georgia v. Travis McMichael, Greg McMichael, and William Bryan was determining the number of peremptory strikes each side would be allowed during jury selection.
When selecting a jury, attorneys from each side can deselect prospective jurors by making a challenge (also called a strike). There are two kinds of challenges: challenges for cause and peremptory strikes.
In Georgia, each side gets a minimum of 9 peremptory strikes based on Georgia state statutes. But this is a trial where 3 defendants are on one side vs. the state on the other. That means each defendant gets 3 strikes to weigh against the state’s 9. So the balance is off center from the start.
But the judge is apparently allowed discretion to bump up the number of strikes by up to an additional 5 per defendant. The defense requested those 15 additional strikes, for a total of 24 divided by 3 for 8 strikes per defendant. They were granted. At this point, the balance was still tilted with each defendant having 8 strikes against the state’s 9.
The state, however, then countered that it should get the same number of additional strikes to bump their total up to 24 strikes vs. 8 per defendant. An attorney for the state commented "We would just ask in fairness that the court give us the same additional amount of strikes."
Ultimately, Judge Walmsley settled for tilting the playing field toward the prosecution, but not as much as the prosecution requested. The peremptory strikes provided for by statute are divided 3-3-3 among the defendants, plus the judge granted each defendant an additional 5 peremptory strikes for a division of 8-8-8 between the defendants. The state was granted an additional 3 peremptory strikes for a total of 12.
Advantage: prosecution.
Compare this with the common law apportionment of peremptory challenges discussed by famed jurist William Blackstone in his Commentaries on the Laws of England. At that time, the state was allowed ZERO peremptory challenges vs. 35 for the accused. Current practice tilts the playing field exactly opposite of how it was intended to be tilted.
There are good reasons for an asymmetric apportionment of peremptory strikes with the defense having the advantage. The government assembles the jury pool in the first place, so it has already had some unique influence in the final jury that the defense does not have. Additionally, what is at stake for each side is far from equal. If the prosecution loses, they go back to the office and carry on as before. If the defense loses, someone loses their property, their liberty, or possibly even their life.
Psychologically Priming Jurors To Convict
On day one of State of Georgia v. Travis McMichael, Greg McMichael, and William Bryan, before jury selection began, I observed what appeared to be two very blatant attempts by the prosecution to poison the jury through questions it wanted to ask during voir dire. These issues and some others are argued together for several minutes starting at the point where I have this video cued up:
Normally, prosecutors bend over backward to ensure jurors have no knowledge whatsoever of the potential penalty at stake. Prosecutors and judges tell jurors that they must ignore the consequences of their actions and not in any way weigh the possible sentence in coming to their verdict.
But in the this trial, the state tried to argue that, for no apparent reason, jurors should be assured during jury selection that this is NOT a death penalty case. The state intended to begin its questions to the jury with a statement that “I am going to ask you a series of questions, but before I do, I want you to let you know that this is not a death penalty case.”
Since this is not a death penalty case, the defense pointed out, there is no reason to think that jurors will think it is one. However, once that seed is planted, jurors might think up with all manner of questions that might influence them such as whether this was at one time a death penalty case, why it isn’t a death penalty case, etc. And who knows what psychological effect just hearing this irrelevant point might have in terms of priming jurors to be more likely to convict.
One of the defense attorneys also objected to the strange and perhaps even subtly disparaging wording of a question the prosecution wanted to ask jurors about him. Specifically it asked “Is there anyone here especially familiar with Mr. Kevin Gough through reputation or association?”
The defense attorney strenuously objected to this question as worded rather than simply asking if the jurors know counsel and, if so, how they know them. He seemed to think it might imply something untoward regarding character and reputation, and he said he would move for a mistrial if the jurors were asked this question as originally worded.
The judge disallowed the statement about the death penalty and approved an alternate wording of the question about Mr. Gough.
These psychological tactics from the prosecution struck me as calculated and intentional, whereas the next example of psychological priming strikes me as more likely to be inadvertent.
In State of Florida v. Markeith Loyd, within the first five minutes of prospective jurors being brought into the courtroom, the judge referred to the argumentation phase of the trial as "the guilt phase" at least 7 times that I counted and did so other times after that. Not the argumentation phase, not the guilty or not guilty phase, but specifically "the guilt phase".
Very possibly this is just a shorthand way of referring to this portion of the trial that has evolved over time for the sake of convenience and speed. But it is difficult for me to think that repeatedly referring to it in this one-sided manner does not have some subtle psychological priming effect pointing in the direction of conviction.
We should keep in mind that the effect of any one of these things might be very small, but even a small effect can be important when jurors are on the fence. Moreover, a number of small effects in the same trial can accumulate to the point of having a big effect.
Juror Rights in the Sentencing Phase of a Death Penalty Case
Though I am normally critical of what judges do with respect to jurors’ rights, I will give credit where I think credit is due. I found Judge Marques’ explanations in State of Florida v. Markeith Loyd of how, during the sentencing phase, jurors are to weigh aggravating factors (that increase the seriousness of the offense) and mitigating circumstances (that lessen the severity of the punishment deserved) to be clear and correct.
She specifically said that:
"The law contemplates that different aggravators or mitigators may be given different weight or values by different jurors. In your decision-making process, you individually and you alone are to decide what weight to be given to a particular factor. Each juror may give whatever weight they determine to each aggravator and to each mitigator. Regardless of your findings in this respect, however, you are never compelled to nor required to vote for a sentence of death."
and
"Even when death is a possible sentence, each juror must independently decide whether life imprisonment without the possibility of parole or death should be imposed. Regardless of your prior findings, the law never compels nor requires any juror to determine the defendant should be sentenced to death. Any single juror has the right to vote for a sentence of life imprisonment without the possibility of parole."
Although she doesn’t come right out and use the term jury nullification, I believe this verbiage clearly opens the door for jurors to conscientiously choose a sentence of life without parole even if the necessary factors are found to issue a death sentence.
It is a bit of an eyebrow-raiser, though, that this level of detail about the sentencing phase is being given even before jurors are seated, let alone before they render a verdict. Again, it is a real concern that this may be psychologically priming them—even unintentionally—to be more likely to convict.
I hope this insight into how the jury trial process works helps prepare you to serve conscientiously as a juror one day. When you are called to jury duty, you will not be privy to most of what we can see in these videos. As more opportunities arise, I’ll be sharing additional lessons from actual jury trials. If you have in mind anything you would like me to keep an eye out for and discuss, please let me know.
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