But Will They Convict Them?

Earl Ofari Hutchinson

The one question on every one’s lips was not whether Travis and Gregory McMichaels would be charged with murder in the slaying of Ahmaud Arbery, but would they be convicted? When the video of the slaying of Arbery went viral and showed and unarmed Arbery running, and when tens of thousands expressed national outrage over the killing, and when conservative GOP Georgia Governor Brian Kemp said he was horrified by the video, and when the case was snatched out of the cozy, police friendly local DA’s office, it was almost a foregone conclusion that the pair would be slapped with murder charges.

That’s in part the reason there is the loudly expressed question and concern about conviction. That’s not the only reason, though. The bigger one is the tortured and very ugly history of trying to nail cops, even ex-cops like the McMichaels, for murdering unarmed Blacks. There were three dead giveaways in the Arbery slaying about the tough road ahead to thread in nailing murderous cops. It took three months after his slaying to get any real legal action in the case. That was only after the grotesque video and mass rage took it out of the hands of local prosecutors who flatly said “no” to a prosecution.

Next, the version of the killing that anyone continually heard and quoted almost verbatim in national and local news reports was the McMichaels. Then, in their telling of it, the inference lay heavy that Arbery was some kind of suspect in a series of robberies, and that he grabbed for a gun when cornered, thus the chase and the killing. The only thing missing from the police-local prosecutor hideous collusion in blowing off the murder, is a defense, police, media orchestrated dirt digging, character rip of Arbery. That is the almost ritual drugs, gangs, dysfunctional home and so on tarring of him as has been done with other Black victims of police violence.

So, therefore, the eternal and deeply troubling question: Will a jury convict them?

In 2010, a Bureau of Justice Statistics report found racial discrimination in jury selection is still rampant, even blatant. A Supreme Court ruling and other court rulings that ban all white or non-Black juries have been in far too many cases no more than paper decisions that have had little effect in insuring a diverse jury in cases involving black defendants. The same holds true where blacks have been the victims, and whites or non-blacks the defendants. That’s even more the case when the defendants are police officers.

The Georgia Bureau Investigation that brought the charges against the two cleared the first colossal hurdle with their arrest and charging them with murder. To get that far is the rarest of rarities. Here’s how rare. Police have killed thousands of unarmed civilians in the decade since 2005 but according to a survey by The Washington Post and researchers at Bowling Green State University, only a handful of officers have been charged in the shootings and virtually all have been acquitted if they ever get to trial.

The Bureau of Justice Statistic report gave a big clue why it’s virtually impossible for juries to face the brutal reality that some cops do wantonly kill. It comes down to the racial make-up and the ingrained biases of the jurors, no matter what their color. On that point, it did find that a racially diverse jury weighed evidence and testimony longer and more carefully, brought different perspectives and life experiences to the deliberations, and made fewer factual errors. These are crucial factors in the rare cases where cops are charged with killing young Black or Hispanics.

On the other hand, a jury with no Blacks, composed of mostly older middle class whites, and non-Black ethnics, is much more likely to believe the testimony of police and prosecution witnesses than black witnesses, defendants, or even the victims.

Prosecutors know it’s a tough hill to climb with jurors in police abuse cases and in surveys and interviews have said as much. This is one of two big reasons that they almost never bring charges against cops who kill even in the most blatant, outrageous and over the top killings. Prosecutor’s business is first and foremost fighting crime. They must rely on and work in lockstep with policed departments to have any success. But it’s still the problem of convincing a jury that cops deserve jail time for deadly assaults and killings.

In nearly every major racially charged case in past years where Blacks were the victims either beaten or killed by white cops back to Rodney King, defense attorneys depicted all the victims as the aggressors who posed a threat to the officers. They play up and exaggerate any run-ins with the law to depict young Blacks as crime prone, menacing figures. Almost certainly, they’ll dredge up the same worn script with Arbery. The idea is to subtly and openly play on the prejudices, stereotypes, and negative beliefs of many white jurors toward young Blacks.

The murder charge against the McMichaels came at glacial speed. But it came. But as time has shown, it’s one thing to indict and another to convict cops. Will this be any different?

Earl Ofari Hutchinson is an author and political analyst. He is the author of What’s Right and Wrong with the Electoral College: (Middle Passage Press) He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network