News outlets struck back Tuesday on behalf of the First Amendment, lambasting a recent request by defense attorneys to bar reporters from a portion of jury selection in the upcoming trial of three men accused of murder in the killing of Ahmaud Arbery.
Attorneys for defendants Travis McMichael and Gregory McMichael last week filed a motion to exclude the press from the courtroom during individual voir dire, a process in which lawyers would question potential jurors about possible prejudices or strong opinions concerning the racially-charged murder case.
Tuesday’s filing contends that excluding reporters from the process has no grounds and “is directly in conflict” with constitutional precedent. The filing asks the judge to reject the defense attorneys’ request.
“Operation of the judicial branch of government in an open and public manner is fundamental to our system of justice as a matter of both federal and state constitutional law,” states the filing, made on behalf of the Associated Press, the Atlanta-Journal Constitution, CNN, Action News Jax and several other media outlets.
Buff Leavy, president and editor of The Brunswick News, added his voice to those opposed to the request of defense attorneys.
“I concur with those speaking for the public’s right to know,” Leavy said. “While The Brunswick News is not party to the court filing, I agree the media should not be muzzled during the jury selection process.”
Travis McMichael shot the unarmed Arbery dead on Feb. 23, 2020, on a street in the Satilla Shores neighborhood in southern Glynn County. He and his father, Gregory McMichael, armed themselves and pursued Arbery after seeing the 25-year-old Black man run past their home on Satilla Drive. The McMichaels’ neighbor, William “Roddie” Bryan, joined the pursuit in his pickup truck that day and also is charged with murder.
The three defendants are White. Jury selection begins Oct. 18.
Defense attorneys for the three defendants will contend they were making a citizen’s arrest and that Travis McMichael acted in self- defense as the two men struggled for possession of his gun. The McMichaels said they suspected Arbery of burglary. Bryan used his cell phone to record the deadly confrontation, a video that sparked universal condemnation and cries of racial injustice when it was leaked to the internet in May 2020.
Defense attorneys claim potential jurors could be hesitant to speak frankly about racial beliefs or opinions about the case if the media is there to report it. However, federal and state supreme court opinions hold that voir dire and all portions of jury trials “must be open to the public and press,” the joint media filing notes. "Only in extraordinary circumstances” would access to the judicial process be limited, it said.
The defense attorneys’ July 14 motion does not meet that standard, nor would having reporters present violate the defendants’ Sixth Amendment right to a fair trial by an impartial jury, the filing said. The filing noted the televised and live-streamed voir dire proceedings in the recent murder trial of former Minneapolis, Minn., police officer Derek Chauvin. A White man, Chauvin was convicted in the death of George Floyd, the Black man who pleaded repeatedly for breath as Chauvin kneeled on his neck.
Like the Arbery case, Floyd’s death was videoed and its release sparked outrage and protests nationwide.
The media filing states, “Defendants’ counsel contends, in effect, that the First Amendment Rights of the public and press should be sacrificed to protect the Sixth Amendment rights of their clients. The motion is misguided. The United States Supreme Court and the Georgia Supreme Court have repeatedly rejected the false dichotomy that these constitutional rights cannot co-exist with one another in high profile cases.”
Attorney Dave Hudson, who represents the Georgia Press Association, said exceptions that bar reporters from courtroom proceedings are rarely granted outside of organized crime or national security cases, “where jurors would be subject to tampering or threats.”
He said the defense’s concerns about potential jurors speaking freely with reporters present are speculative at best.
“The media lawyers are correct that it requires evidence of exceptional circumstances before any part of a trial — including jury selection — can be closed to the public,” Hudson told The News. “In the Arbery case, there is no evidence of risks to jurors or that the presence of the public during voir dire would cause jurors to falsely answer questions that might be posed to them. Speculation or presumptions are not sufficient. My prediction is that the Judge will decide that the motion is premature until voir dire begins and it can be determined if problems arise.”
Jason Sheffield, an attorney for Travis McMichael, said he was not surprised media outlets were objecting. He believes in an open courtroom, but “in limited circumstances, the defendant’s right to a fair trial can and will trump” that, he said.
“In order to ascertain which jurors are suitable to serve in a case such as this case — one that has accumulated more pretrial publicity than most — we have to create the best environment for jurors to share their true thoughts, beliefs, biases and prejudices,” he told the Associated Press in a phone interview.
The media outlets said in their filing that publicity was not sufficient to try to “stifle informed public discussion or reporting on a case,” and the defense had failed to show evidence that its clients would face bias under an open process.
“To foster public confidence in the fairness of the trial and the verdict reached by the jury, it is vital that the public and press be permitted to observe all portions of the trial, including voir dire,” they said.
News Editor Leavy said his newspaper stands resolutely behind the court filing of the media.
“This case has had a profound impact on our community,” Leavy said. “Its outcome is of vital importance to a great many people, not just locally, but on a national level as well. It is imperative that the public and the press have unfettered access to these proceedings from gavel to gavel.”
Eastern Circuit Judge Timothy Walmsley will hold a hearing at 10 a.m Thursday in Glynn County Superior Court to consider jury selection issues, trial scheduling and pretrial motions.