Defense walks back motion to bar reporters from juror questioning

·5 min read

Jul. 23—Defense attorneys retreated Thursday on a motion to bar news reporters from juror questioning in the upcoming trial of the three men accused of murder in the Ahmaud Arbery killing, but concerns remain in the volatile and highly publicized case, they told a judge in Glynn County Superior Court.

The defense's request was challenged in a court-filing on behalf of news media outlets that cited First Amendment rights and supreme court precedent.

Media access to the questioning of potential jurors was among many issues hashed out during the pretrial hearing, during which Eastern Circuit Court Judge Timothy Walmsley of Savannah reminded both the defense and the prosecution that the trial is fast approaching.

"I fully intend to try this case beginning Oct. 18," Walmsley said, noting the date jury selection starts.

Travis McMichael shot and killed the unarmed Arbery on Feb. 23, 2020, as the two men struggled for possession of McMichael's gun on a street in the Satilla Shores neighborhood. McMichael and his father, Gregory McMichael, armed themselves, got into a pickup truck and pursued the 25-year-old Black man after seeing him run past their residence on Satilla Drive that Sunday afternoon. A neighbor, William "Roddie" Bryan, joined the pursuit and took cell phone video of the conclusion — a video that sparked national outrage, large public demonstrations and cries of racial injustice after it was leaked to the internet in May 2020.

The three White men, who have entered not guilty pleas, remain jailed in the Glynn County Detention Center, charged with murder, false imprisonment and criminal attempt to commit false imprisonment.

Given the high-profile nature of the case, defense attorneys for the McMichaels filed a motion July 14 seeking a media ban on the voir dire portion of jury selection. During voir dire, attorneys would have a chance to question potential jurors individually on racial attitudes and on personal knowledge of the case, as well familiarity with the defendants or Arbery.

"We're asking questions that are of a nature that a potential juror may be afraid to open up on in court," said Macon attorney Laura Hogue, representing Gregory McMichael. "They need to feel confident. As the court is aware, the case had received overwhelming publicity."

But First Amendment Attorney Tom Clyde made it clear that his media clients would not stand for being barred from the proceedings. The court filing on behalf of the Associated Press, the Atlanta-Journal Constitution and CNN, among others, contended state and national Supreme Court opinions maintain that all portions of jury trials "must be open to the public and the press."

The Brunswick News was not a party to the court filing but supported opposition to closing jury selection to the media.

"We do very much object to the closure of the voir dire process on a systematic basis," Clyde told Walmsley.

According to Logue, pretrial hearings in the emotionally stirring case indicate a need to protect potential jurors from possible public exposure. Some who testified in earlier pretrial proceedings ended up being "lambasted" on social media, she said. Others then backed out of testifying in pretrial hearings as a result, she said.

She noted "toe-curling" emails and voicemails received daily by her office regarding the case.

Typically, the media do not identify members of a jury.

Walmsley urged defense attorneys and Clyde to meet during recess Thursday and seek a mutual resolution. They did, for now.

Returning at 3:05 p.m. after a nearly two-hour recess, the defense attorneys rescinded their blanket request. Instead, attorneys requested consideration be given should a potential juror express concern about speaking freely with the media present.

Walmsley asked defense attorneys to get with Clyde and see what arrangements might be made to accommodate such a request, a detail to work out before the trial starts, he said.

"I have a better understanding now of their objections," Logue said. "I am withdrawing the motion that the press should be excluded from all individual voir dire."

Afterward, Clyde said he was satisfied that something could be worked out before trial.

"The defense withdrew the part of the motion that we objected to," he told The News. "I am confident we can work through the issues relating to individual jurors."

All of the six defense attorneys for the three defendants have indicated they will argue that Travis McMichael killed Arbery in self defense while the three men were conducting a citizen's arrest. The McMichaels have said they suspected Arbery of burglary.

The two sides wrangled with everything from who might be qualified to testify regarding the grounds for making a citizen's arrest to the relevance of local protests in the shooting's aftermath.

The proceedings sparked some legal jousting, such as that between prosecuting attorney Linda Dunikoski and defense attorney Kevin Gough, who represents Bryan. Dunikoski objected to terms such as "car jacking," suggesting Gough might use the word to describe contact between Arbery and Bryan's pickup truck during the pursuit. Gough then suggested a crime may have been committed, noting GBI agents found Arbery's fingerprints on the side of the truck.

"The jury can infer that Mr. Arbery was trying to enter the vehicle," said Gough, the case's only local attorney. "All of those attempts (including car jacking) are still in the balance."

An assisting prosecuting attorney with the Cobb County District Attorney's Office, Dunikoski noted a GBI agent's testimony in a hearing last year. Agent Richard Dial testified that Bryan allegedly used his truck to block Arbery's escape and forced him into a ditch.

"Allow me to be crystal clear," Dunikoski said tersely. "Mr. Bryan hit Mr. Arbery with his truck. That's why his palm print is on there. He assaulted him with a 5,000-pound pickup truck, a lethal weapon ... when he was pushing him into a ditch. Now he's turned it into Mr. Arbery's committing a carjacking. Mr. Arbery was trying to save his life from a man who was trying to hit him with a pickup truck."

At one point, Walmsley cautioned both defense and prosecution to keep it civil.

"Arguments in my court are made to the court," Walmsley said. "They're not personal. They are not made to be personal. It can get antagonistic at times, but make your arguments to the court. Once it gets personal, it develops into something other than an argument."

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