Update: Defense's motion for a mistrial denied

·4 min read

Nov. 16—Eastern Circuit Court Judge Timothy Walmsley denied a request for mistrial Monday that was presented by the attorneys representing the three White men on trial in the Feb. 23, 2020, killing of Ahmaud Arbery, a 25-year-old Black man.

The request for a mistrial was preceded by a complaint by defense attorney Kevin Gough, who objected to the presence of civil rights leader the Rev. Jesse Jackson in the courtroom.

Walmsley flatly denied Gough's request to remove Jackson from the courtroom and Gough's argument that his presence might influence or intimidate jurors.

Moments later, Walmsley called for a recess after a member of the courtroom gallery let out a cry as a portrait photo of Arbery was placed on a video screen.

Representing defendant William "Roddie" Bryan, Gough called for a mistrial based on the gallery member's expression of emotion and the appearance in the courtroom of Jackson and other civil rights clergy, including the Rev. Al Sharpton's appearance with Arbery's parents last week.

Robert Rubin, representing defendant Travis McMichael, and Frank Hogue, representing Travis McMichael's father, Greg McMichael, said they were "constrained to join" Gough's call for a mistrial.

Rubin said several jurors noticed the display of emotion and "their faces changed.

"These defendants can no longer get a fair trial," Rubin said.

Prosecuting attorney Linda Dunikoski of the Cobb County District Attorney's Office noted Walmsley's "prompt action" after detecting "weeping" in the courtroom.

"This was minor weeping in the back of the courtroom, and the court took action," she said.

Citing case law, Walmsley said the conditions for a mistrial had not been met by the defense attorneys. He added, "emotions are neither unreasonable or unexpected in a courtroom" in murder trials.

Gough argued that Jackson's presence in the courtroom might influence or intimidate the jury. He made a similar argument last week after Sharpton joined Arbery's family during court proceedings.

"How many pastors does the Arbery family have?" Gough asked rhetorically. "We had the Rev. Sharpton here last week. I don't know who the Rev. Jackson's pastoring here. My understanding here is the Arberys have a pastor."

After Walmsley denied the request to remove Jackson, Gough later complained during a recess that Jackson did not have his COVID-19 mask completely covering his face.

Jackson sat in a back row of the courtroom Monday with Wanda Cooper Jones and Marcus Arbery, the parents of Ahmaud Arbery.

Sitting two rows in front was Leigh McMichael, the mother of Travis McMichael and wife of Greg McMichael.

Gough prefaced his remarks with a show of respect for Jackson.

"He is an icon in the civil rights movement," Gough said. "Not just a witness, but the personification of it. But in the context of this trial, we object to his presence in the courtroom."

The comments were made outside of the purview of the jury.

"With all candor, I was not even aware the Rev. Jackson was in the courtroom until you started your motion," Walmsley said. "At this point, it's almost as if you're trying to continue this for purposes other than just bringing it to the court's attention. I find that objectionable from the court's standpoint ... I'm done talking about it, Mr. Gough."

Later, in denying the motion for mistrial, Walmsley said Gough's reaction to Sharpton's visit last week likely contributed to Jackson's appearance Monday. He called Gough's hypothetical scenario about the reaction White people might receive from Black people if they entered the courtroom "dressed like Col. Sanders" reprehensible.

Said Walmsley: "You need to understand that your words in the courtroom have a lot to do with what's going on. I'm not granting a mistrial at this point based on the arguments that have been made."

Proceedings resumed shortly after with testimony by Anne Kisler-Rao, a forensic microanalysis with the Georgia Bureau of the Investigation.

During a break in the trial, Jackson asserted he was there to support the victim's family.

"I don't know the jurors," Jackson said. "I don't know any of them."

Jackson said he would continue to stand by the "young man and his family.

He also addressed the reactions of Ahmaud Arbery's mother as she sat in the courtroom.

Coooper Jones had seen her son killed by three men, he said.

"She had every right to cry," Jackson said.

When asked if he would be in Brunswick for the rest of the week, Jackson said, "I expect to be and beyond."

Jackson also called the slaying of Ahmaud Arbery "so blatant, so open" and said it wasn't based on any misbehavior.

He summarized the case as three grown men killing "an innocent unarmed boy."

The News' Terry Dickson contributed to this report.

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