The nation is watching two trials involving four defendants who killed three innocent people who posed no threat to them: the Kyle Rittenhouse trial underway in Kenosha, Wisconsin, and the Ahmaud Arbery trial underway in Brunswick, Georgia. Each defendant is relying on the defense that the killing of the three victims was justifiable homicide undertaken either in self-defense or in the course of a citizen’s arrest.
These trials raise the recurring issue of race in the jury selection process of a criminal trial in America. Both the Rittenhouse and Arbery cases involve killings seriously tinged with obvious racial motivations.
The Lynching of Ahmaud Arbery
The Ahmaud Arbery case began on February 23, 2020, when 64-year-old Gregory McMichael and 34-year-old Travis McMichael, a white father-son duo, spotted a 25-year-old black man named Ahmaud Arbery jogging in their predominantly white working-class Satilla Shores neighborhood outside Brunswick, Georgia. Because of several recent burglaries and thefts in the area, the McMichaels drew a racially-motivated assumption that Arbery was in their community to steal something.
The father-son duo, who had racist Confederate flag decals on their vehicles and referred to black people with the “N” word, armed themselves with a .357 magnum pistol and a shotgun. They jumped in their pickup truck and gave chase after Arbery intending, they claim, to make a “citizen’s arrest.” A McMichael neighbor, William Bryan, joined in the pursuit and engaged in driving tactics designed to cut off Arbery to allow the McMichaels to catch up with him.
Once the McMichaels caught up with Arbery, Travis McMichael jumped out of the pickup and confronted Arbery with his shotgun. A tussle over the weapon ensued, with Travis killing Arbery with two blasts from the shotgun.
The McMichaels were arrested on May 7, 2020, while Bryan was arrested on May 21, 2020. The men were indicted for felony murder, aggravated assault, and false imprisonment.
Kyle Rittenhouse Becomes Darling Of Gun Tote’n White Supremacists
On August 25, 2020, 17-year-old Kyle Rittenhouse killed two people and seriously injured a third at a Black Lives Matter protest in Kenosha, Wisconsin: 26-year-old Anthony Huber and 36-year-old Joseph Rosenbaum were killed, and Gaige Grosskreutz was injured. Rittenhouse was indicted for two counts of reckless first-degree homicide, two counts of first-degree recklessly endangering public safety, first-degree intentional homicide, attempted first-degree homicide, and possession of a dangerous weapon by a person under 18.
Rittenhouse left his home in Antioch, Illinois, and traveled to Kenosha, which was embroiled in protests in the wake of a white police officer’s shooting of a black man named Jacob Blake, which left Blake paralyzed. Rittenhouse brought an illegally obtained AR-15 style assault rifle and hatred of Black Lives Matter and “leftists” in general. He was a pro-police enthusiast who decided to go to Kenosha to protect property and the police from protestors.
Jury Selection Illustrated Systemic Racism in Action
The jury selection in the Ahmaud Arbery trial began on October 18, 2021. A panel of 12 jurors and four alternates was selected on November 3, 2021. The jurors deciding the case include eight white women, three white men, and one black man. The remaining alternates are white. The defense of the three men used their challenges to exclude 11 out of twelve potential black jurors to the consternation of both the trial judge and prosecution. Fifty-six percent of Brunswick is black, the largest ethnic group in the community.
A jury seated in the Rittenhouse case was selected on the same day, November 3, 2021. The jury consists of 20 people—11 women and nine men. Eight of the jurors are alternates who will be excused from deliberations. All of the twenty members of the jury are white. Only one is Latino. Eighty-seven percent of Kenosha County is white. One of the jurors was excused a day into the trial when he told a racially charged joke to the courtroom deputy about the killing of James Blake.
One thing is clear from the jury selection in both racially-charged cases: Black Americans, who have a vested social and political interest in both cases, will not be fairly represented in deciding the legal outcome of the cases.
One case involves a young white man, filled with racist hatred for Black Lives Matter, who traveled from Illinois to Wisconsin with an assault rifle prepared to kill Black Lives Matter protesters, regardless of their race. The other case involves three older white men, who express their racism through the Confederate flag and the “N” word, who ran down a young black man and killed him with impunity.
It is deeply troubling that only one black person was as a juror from two counties in two different states: Kenosha County, with roughly 13,000 black people from a 170,000 population; and Glynn County, which has approximately 25,000 black people from a population of 85,000.
Legacy of Jim Crow Juries
Lecturer on Law at the Harvard Law School, Thomas W. Frampton, expressed the reason for our concern in a 2018 article in the Vanderbilt Law Review titled “The Jim Crow Jury”:
“Since the end of Reconstruction, the criminal jury box has both reflected and reproduced racial hierarchies in the United States. In the Plessy era, racial exclusion from juries was central to the reassertion of white supremacy. But it also generated pushback: a movement resisting ‘the Jim Crow jury’ actively fought, both inside and outside the courtroom, efforts to deny black citizens equal representation on criminal juries. Recovering this forgotten history-a counterpart to the legal struggles against disenfranchisement and de jure segregation underscores the centrality of the jury to politics and power in the post Reconstruction era….”
Given the undeniable racist overtones in the Rittenhouse/Arbery cases, we cannot help but believe that a Jim Crow jury will decide both cases. These two cases capture the political and racial divisions currently shredding the American social order. We doubt seriously that either jury will reach a final and just verdict. Both juries, we suspect, will be hung because of Jim Crow-like racism and mistrials declared in both cases.