The death sparked demonstrations as droves of protestors stood against what they said was a racially motivated shooting in broad daylight.
Jury selection began Oct. 18. Six more potential jurors were qualified on Wednesday afternoon, bringing the number of prospects so far to 42. Attorneys look to empanel a group of 64 people before each side begins their strikes, whittling the pool to 12 jurors and four alternates ahead of opening statements.
Gough argued that public gatherings during jury selection may sway prospective jurors in one direction or another.
“The ‘carnival like’ or ‘circus like’ atmosphere outside the Glynn County courthouse, as well documented in the mainstream media, cannot continue without violating defendant’s rights to due process and a fair trial,” Gough’s motion said.
His motion referenced a series of animated gatherings in the public courtyard adjacent to the courthouse during the first week of jury selection. It included a crowd of ministers, members of Glynn Clergy for Equity, the NAACP and community supporters who gathered to exchange hugs, chant and sing.
The group was soon replaced by spectators from the Washington, D.C.-based nonprofit Transformative Justice Coalition, who gathered in a grassy area a few yards away from the courthouse steps.
Many held signs reading “Justice for Ahmaud.” The group remained outside the courthouse for the next five days, at times joined by the Arbery family and their attorneys.
Such gatherings in a public place are protected by the First Amendment and can’t be restricted by the government without a compelling interest, said Atlanta attorney Gerry Weber, an expert on First Amendment law.
“Here, the standard would have to be impairing, in a dramatic way, the fair trial right of the accused,” Weber said. “That standard is essentially almost never met.”
Such demonstrations have become common at some high-profile trials, Weber noted.
“If jurors happen to hear in some way or observe that there are people outside the courtroom who have those views, it’s not going to impair the fair trial right of the accused,” he said. “It’s just kind of to be expected given the publicity of the case and the strong feelings about what happened.”
In court, Gough contended there was reason to prohibit the gatherings. He claimed their purpose was not to uplift Arbery’s family but rather to intimidate potential jurors and teach citizens how to bypass the jury selection process.
“What at first looks ... like a very innocent attempt by a civil rights group to promote voting rights, it turns out to be something much different and much more centrally impacting the case,” he said.
Gough referenced tweets from Lee Merritt, the attorney representing Arbery’s family. In one, Merritt posted an interview he had done related to the jury selection process and wrote, “Register to Vote. Show up for jury duty. Remember this phrase: ‘I can be fair.’” In another, Merritt criticized Walmsley about a prospective juror being qualified and cited her job title, Gough said.
Gough asked the court to bar demonstrations and signs in the entire block in which the courthouse sits. He asked the judge issue an order to move demonstrations to the neighboring block, which is not visible from the courthouse. When the judge denied the motion, he pointed out that the area around the courthouse is a public space.
“The court does not find that the movement has met its burden to limit the First Amendment rights of any individuals that may come to the courthouse grounds, which is a public place,” Walmsley said. He added that the sheriff’s office has not reported any issues with the demonstrations that would lead him to be concerned.
The judge also noted that prospective jurors had been asked if they had noticed the signs and demonstrations as they entered the building. “I have not heard yet in jury selection — which has been thorough — that these influences that are claimed have occurred,” he said.
Walmsley said he was concerned about social media posts that may jeopardize the privacy of prospective jurors by stating identifying information about them such as their occupations.
“It troubles me significantly that any individual separate from the lawyers in front of me here and the media would be taking it upon themselves to create a narrative that does not comply with this court’s clear wishes with regard to jury selection, identifying jurors and using platforms to influence the public,” he said, adding he would need to think through how to deal with such a development.
Outside the courthouse, Merritt called Gough’s motion “asinine.” As for Walmsley’s concerns, Merritt said, “The judge has done some things really well in my legal opinion and there are some things that could have been done better.”