Thread by @DrRJKavanagh

It's not just that only *one* Black juror has been seated in the trial of the three men charged with killing Ahmaud Arbery.

It's that the judge acknowledged the defense was using *intentional discrimination* in selecting jurors and did nothing about it.
cnn.com/2021/11/03/us/…

During jury selection, the defense and prosecution have unlimited challenges for cause - they simply have to show the judge why a juror would not be fair and impartial.

The defense and prosecution each then have a number of peremptory challenges where they can ask for a juror to be struck for any reason.

Except race. The reason has to be race-neutral.

This rule developed out of the US Supreme Court decision in Batson v Kentucky, which sets up a three-prong test.

First, the challenging party must show that the other party used their peremptory challenge because of a discriminatory reason.

Second, the other party must provide a race-neutral reason for their use of the peremptory challenge.

Third, the challenging party must show intentional discrimination on the part of the other party.

Usually Batson comes up in cases where the person on trial is Black and prosecutors are trying to keep Black people off the jury. As we all know, there's a long history of them doing that.

But everything about this case is backwards.

Here the prosecutor filed a reverse-Batson challenge arguing it was the defense who was using their peremptory challenges to exclude people on the basis of race.

And the judge said - yes, they appear to be doing that, but they also have race-neutral reasons.

But he also said, "This court has found that there appears to be intentional discrimination." That's prong three of Batson satisfied right there.

He's allowing the defense to use race-neutral reasons as a pretext for exercising intentional discrimination.

Now, it is true that Batson jurisprudence has become, for want of a better word, "sloppy" over the last few years and some judges will take a race-neutral reason and stop the inquiry right there, not going on to prong three of the test.

But the third prong is right there and this judge acknowledged it, said intentional discrimination existed, but oh well, he wasn't going to do anything about it.

Now if we were dealing with a prosecutor keeping Black people off a jury it would be terrible, but the denial of a Batson challenge would be at least be grounds for appeal if a person were convicted.

But a prosecutor can't appeal an acquittal, which is what this ruling makes so much more likely here.

I guess the prosecutor could try to file some sort of interlocutory appeal of the ruling.

That would not endear them to Judge Walmsely tho and probably wouldn't be successful, because appeal courts give a lot of deference to trial judges especially during trial.

I tend to think the prosecutor should still do it because it is so egregious and it puts the judge on notice.

I don't know, it's all just testament to how the criminal legal system doesn't work to provide justice for Black people, but instead to uphold systems of White supremacy.

PS. Thank you @ShippEsq for explaining GA interlocutory appeal process to me.