The judge overseeing the murder trial in the killing of Ahmaud Arbery rejected defense lawyers’ requests for a mistrial Monday and denounced as “reprehensible” one attorney’s comments objecting to Black pastors in the courtroom.
Lawyers for all three defendants in the case sought a mistrial after the judge briefly removed the jury when Arbery’s mother began to weep in the gallery. They argued that her emotional response could unfairly sway the jurors – “their faces changed,” attorney Jason Sheffield said – and they took issue with the Rev. Jesse Jackson, a Black civil rights icon, joining Arbery’s family in court.
Judge Timothy Walmsley reiterated that he would not bar respectful members of the public from the gallery and voiced his strongest criticism yet of defense attorney Kevin Gough’s statements in court. “We don’t want any more Black pastors coming in here,” Gough said last week, calling the presence of the Rev. Al Sharpton “intimidating” in a case seen by many as a test of the justice system’s fairness to Black Americans.
Three White men who chased and shot Arbery, a 25-year-old Black man, in February 2020 are on trial after local authorities in coastal Georgia initially declined to make arrests. The prosecution has suggested that Arbery was racially profiled while jogging. Greg McMichael, his son Travis McMichael and their neighbor William “Roddie” Bryan argue they were making a legitimate “citizen’s arrest” and that Travis McMichael shot Arbery in self-defense.
As Gough objected Monday to Jackson’s presence, Walmsley said people were coming to court “directly in response, Mr. Gough, to statements you made, which I find reprehensible.”
He pointed specifically to Gough’s seeming comparison last week of Sharpton’s appearance to a hypothetical case in which “a bunch of folks came in here dressed like Colonel Sanders with white masks.” Sharpton and others condemned the comments, and on Monday he announced plans to gather more than 100 Black pastors outside the Glynn County courthouse this Thursday for a “wall of prayer.”
Walmsley told Gough on Monday that his “Colonel Sanders” remark “may be something that has influenced what is going on here.” Gough had argued that in-court supporters of Arbery’s family as well as demonstrators outside were denying his client a fair trial.
The judge said courts have acknowledged that emotional outbursts are not unexpected during a trial, and he noted that he quickly ordered the jury out of the room after Monday’s weeping. He also said that jurors have denied being influenced by the people outside the courtroom, who see Arbery’s trial as a national platform to protest racism.
Arbery’s fatal shooting drew comparisons to a lynching in May 2020 as video of the shooting leaked, weeks before the murder of George Floyd in Minneapolis triggered mass demonstrations against police violence and racism.
Defense lawyers argue the case is not about race and contend their clients were unfairly accused of prejudice. But race has loomed large – especially during jury selection, when defense attorneys struck all but one Black juror from the final panel.
Gough’s repeated objections to the presence of “high-profile members of the African American community” seem to have only highlighted the degree to which many see this case as a high-stakes matter of a racial justice.
Responding outside court to the furor over his presence, Jackson expressed concern about the racial makeup of the jury and rejected the arguments that he was improperly influencing the jurors.
“He is bigger than he ever was in life,” Jackson said of Arbery. “He is all over the world now.”
Sharpton said last week that Gough displayed “arrogant insensitivity” with his objections, and Arbery’s mother, Wanda Cooper-Jones, called Gough’s comments “disturbing.”
“When I heard defense attorney Gough say that, it was unreal,” she said in an interview with The Washington Post. “But sitting in the courtroom day after day, the things that I hear are just unreal as well. So nothing surprises me.”
Gough offered some measure of an apology Friday “to anyone who might have inadvertently been offended.” But he said he would follow up with more context for his concerns. On Monday, he doubled down, likening Jackson’s appearance in the gallery – tightly limited due to the coronavirus – to a police officer attending the trial of a Black man accused of assaulting a member of law enforcement.
“Which pastor is next?” Gough said. “Is Raphael Warnock going to be the next person appearing this afternoon?”
Warnock, a Black minister from Atlanta, won one of Georgia’s Senate seats this year in a tight race that gave Democrats slim control of the chamber.
Gough also said that Jackson’s mask was down below his nose; Arbery’s mother helped Jackson pull the mask up at one point.
Walmsley suggested he was losing patience with Gough.
“At this point I’m not exactly sure what you’re doing,” he said, noting that he already ruled on the matter of courtroom guests. “And with all candor, I was not even aware that Reverend Jackson was in the courtroom until you started your motion.”
Walmsley previously dismissed Gough’s qualms with demonstrators outside court, citing their First Amendment rights. Gough had said: “If there’s any evidence out there that would suggest that there’s been any effort – conscious or unconscious – to tamper with this jury or influence these jurors, whether here on the courthouse steps this morning, or in Black media, the state has an obligation to pursue it.”
Sheffield, who represents Travis McMichael, last week called Gough’s comments surrounding Black pastors “asinine and ridiculous,” according to the Atlanta Journal-Constitution.
But Sheffield and Frank Hogue, who represents Greg McMichael, joined Gough on Monday in asking the judge to declare a mistrial.
Cooper-Jones had started to cry as photos of Arbery were introduced. Sheffield said that “several jurors” looked over, showing emotion and “sympathy.”
“And to see then Mr. Reverend Jackson – whose autographed picture hung in my mother’s law office for two decades, who is the ultimate figure of fairness and justice and equality, to see that – I don’t think it gets any higher in terms of the impression that that makes,” Sheffield argued. He said was “constrained to join” Gough’s motion.
Hogue said it was clear during jury selection that it would be difficult to find jurors without preformed opinions and that he was also “constrained to join,” but for different reasons. He said he disagreed with some the court’s comments on jury selection.
Walmsley has said there “appears to be intentional discrimination” in jury selection – agreeing that prosecutors made a “prima facie” case that Black prospective jurors were targeted – but found the defense lawyers were able to give legally satisfactory race-neutral reasons for their decisions.
Prosecutor Linda Dunikoski said a mistrial would be warranted only by “incurable” problems and noted that the court has discretion on how to respond to outbursts.
“This was minor weeping . . . and the court took immediate curative action,” she said.