The Georgia county court trying the alleged murderers of Ahmaud Arbery has mistakenly exposed potential jurors to suppressed evidence, including his mental health history, which a judge banned from the trial.
Jury candidates who visit the Glynn County Superior Court website seeking information about what time and what day they need to show up can view—in just a couple clicks—all the motions filed so far in the murder trial of Travis and Gregory McMichael and William “Roddie” Bryan.
Those documents include specifics about Arbery’s mental health and prior criminal history that a judge ordered suppressed and never brought up in court.
The motions also include evidence that prosecutors would like to use against the McMichaels, including a Confederate flag vanity plate on Travis’ truck and how often the father and son had used their licensed firearms. The judge has yet to make a ruling on the admissibility of that evidence.
If a jury candidate were to read that information, it would make them ineligible to sit on the jury that will determine the McMichaels’ and Bryan’s fates. And if that person were to be chosen for the jury, it could be grounds for a mistrial, although that’s unlikely, legal experts told VICE News.
“Prominently displaying that information and it being accessible to jurors with just a click of a button, I would say is problematic,” Suparna Malempati, a professor at John Marshall Law School in Atlanta, told VICE News. “When potential jurors have information that may or may not be admitted in the courtroom, the jurors may be influenced.’”
The oversight further complicates an already challenging jury selection process, with an unprecedented 1,000 candidates, more than 10 times the number normally asked. The sea of media coverage regarding the trial and near-daily protests over the treatment of Black Americans in a system plagued by racism also makes picking an impartial jury a monumental task.
Glynn County told VICE News that the court is aware of the links and a solution is in the works.
“We are aware of that issue, and the decision about that will be made by the judge,” Glynn County Superior Court Clerk Ronald Adams told VICE News Tuesday morning.
The trial motions are available on a menu on the left side of the court’s website. Clicking one of the three links labeled “State Of Georgia vs Gregory McMichael,” “State Of Georgia vs Travis McMichael,” or “State Of Georgia vs William ‘Roddie’ Bryan,” directs visitors to a page containing every filing and ruling related to the case since May 11, 2020, when warrants for the McMichaels’ arrests were filed.
The three men are facing nine criminal charges each, including felony murder and false imprisonment, for the death of Arbery as he jogged in his neighborhood of Brunswick, Georgia, on February 23, 2020. The McMichaels insist they thought the 25-year-old Black man was a local burglar, grabbed their guns, and followed him in their truck to conduct a “citizen’s arrest.” Bryan followed in his own vehicle and filmed the encounter.
When Travis McMichael confronted Arbery, the two got into a scuffle over Travis’ shotgun. Travis then fired three shots, striking Arbery twice in the chest, in what he claims was self-defense. All three men have pleaded not guilty.
On the day Arbery died, he had stopped by an empty house under construction near the McMichaels’ place, and the defense initially wanted to introduce evidence regarding his past with law enforcement in an attempt to argue he was using jogging as a cover to commit crimes. They also wanted to enter evidence about the state of Arbery’s mental health to argue that it may have influenced his actions the day of his death.
But a judge ruled the defense couldn’t use Arbery’s mental health history as evidence because of his right to medical privacy, even in death, nor any previous run-ins with police, as that would put Arbery—and not his three killers—on trial.
Although that information being so readily available to jury candidates is problematic, the chances of one reading a motion containing the suppressed evidence and not informing lawyers when asked—which could trigger a mistrial—is slim.
“You will still have to show that they actually accessed the information and that the defendants were prejudiced by it,” Melissa Redmon, the prosecutorial justice program director at the University of Georgia’s School of Law and a former Fulton County district attorney. “You have to have the juror say that ‘I accessed information. I read it, and I considered it in my deliberations.’”
“It’s kind of similar to the questions asked about how much have you learned about the case through the news or was there newspaper articles that you’ve read,” she added.
Still, the court might want to consider adding a question about whether a juror has looked at any of the available documents, according to Redmon.
“If they’ve already been questioned individually, then attorneys can just go into the pool of potential jurors that they can strike from,” she said. “They’re not on the jury yet. So they will still have an opportunity to go back and ask them a few more questions.”
None of the attorneys representing the state, the McMichaels, or Bryan responded to requests for comment.
Emily Green contributed reporting to this story.