“There appears to be intentional discrimination.” Glynn County Superior Court Judge Timothy Walmsley expressed his concerns around the jury selection and potential for bias after it was revealed that 11 out of 12 of the jurors in the criminal case against Travis McMichael, Gregory McMichael, and William Bryan are White.
The defendants are on trial for the murder of Ahmaud Arbery, a Black man who was shot allegedly by the defendants while jogging near Brunswick in Glynn County, Ga. The defendants argue that they were making a “citizen’s arrest” because they believed that Arbery was a burglar. The case moves forward and brings up remnants of the history of racism in our country.
Historically, post-Civil War instances of violence and legal suppression were triggered by attempts of Black people to achieve economic growth and voting rights after slavery. Black people were branded as those in need of supervision and punishment.
Over-policing and vigilante justice enforced these mechanisms of control, and the criminal justice system rarely came through with justice for Black victims. Criminal cases often had all-White juries, as jury selection and voter registration were directly tied.
The fight continues to secure voting rights, and it is common for attorneys to argue against discriminatory practices in jury selection, because the outcome of a case is directly associated with jurors’ perception. I discuss this historical context because it is directly tied to a legal concept that I have often questioned in relation to fair justice, and presents an opportunity for us to begin a conversation as the Arbery case continues.
The ‘Reasonable Person’ Standard in Historical Context
The legal system uses the “reasonable person” standard to judge many scenarios, most notably: whether a police officer has made the right decision when shooting a suspect; whether a citizen should know when they have a right to walk away from a police officer; when a citizen was justified in self-defense or defense of others; and importantly, when a jury determines whether a person’s actions are criminal, negligent, reckless, or justified regardless of what biased perspectives they themselves hold.
What we do not address is that the reasonable person standard is a point of legal fiction that does not allow for the inclusion of the perspectives of Black people, who have been on the margins of justice-related decision-making.
Due to structural racism, it relies on the notion that the perceptions of White people are the standard in which justice is measured. Consequently, attorneys often believe that the reasonable person standard is objective in practice because of their proximity and inclusion in this system.
Outside of the court, the public’s responses to crimes against Black people by police and vigilantes include vehemently opposing discourse. To some, policing and patrolling oppressed communities where crime often occurs is considered heroic, as are efforts to protect White neighborhoods from people who allegedly don’t belong or are seen as suspicious. As attorneys fight against the pressing issue of overly aggressive policing, vigilante behavior has been upheld through “stand your ground” and other laws.
The success of the justice system in our country relies on the moral compass of society, and the criminal justice system remains in a compromising position when one of its own actors is on trial.
Juries, which were once historically all White until the later end of the 20th century, are left with their own biases and prejudices about the level of reasonableness held by police officers and vigilantes that wield power over Black people in courts that do not first fully concede that we live in a historically racist society.
Until we address racism, and the limits of the reasonable person standard, Black victims will continue to be subject to the biases of these actors and face potential bias from prosecutors, judges, and “reasonable” jurors with racially biased perspectives with a limited understanding of this history.
Recently, our country witnessed the gruesome death of George Floyd, a Black man who was killed by police officer Derek Chauvin, in broad daylight, for the alleged crime of using a counterfeit $20 bill. In his defense, Chauvin argued for the reasonableness of the force that he used while restraining Floyd. Americans watched while Chauvin was convictedin March.
The Chauvin trial demonstrates that there are instances where juries perceive some of these acts as far out of the scope of reasonableness. The acknowledgment of the harm that came from this case was helpful in realizing that at the very least, officers may be determined as culpable in situations where their targeting of citizens is clear and unnuanced.
Maintaining the stance that Chauvin’s actions were reasonable would have been catastrophic to the maintenance of an air of integrity for the criminal justice system, and even the most biased or racist juror would concede to that. Without faith in a system, it cannot be maintained.
What is Reasonable is Subjective and Biased
As we wait for the response from the jury in the McMichaels and Bryan murder trial and for the results of other upcoming cases, the work of the Black Lives Matter movement remains crucial to the legal profession’s understanding of its issues with race. In the case of Arbery, we have an opportunity to start the conversation in the legal community.
Attorneys must pay attention to these cases, not just from a black-letter legal lens, but with a lens that considers critical aspects of our history and culture. Attorneys must be the advocates and advocate where the law falls short.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jilisa R. Milton is a civil rights attorney, policy analyst, community organizer, and abolitionist of harmful practices against Black people. She is a survivor of police violence and a co-founder of Black Lives Matter Birmingham Chapter. Currently, she serves as national vice-president of the National Lawyers Guild.