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But will they convict them?

Earl Ofari Hutchinson

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

A big part of the reason for questions and concerns about conviction 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. 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 prosecution.

Next, the version of the killing heard and quoted almost verbatim in news reports was that of the McMichaels. 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 killing. The only thing missing from the police/local prosecutor hideous collusion in blowing off the murder is a police- and 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 with little effect in ensuring a diverse jury in cases involving black defendants. That 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.

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. Virtually all have been acquitted if they ever get to trial.

The Bureau of Justice Statistics report gave a clue why it’s virtually impossible for juries to face the reality that some cops do wantonly kill. It comes down to the racial makeup and ingrained biases of jurors, no matter what their color. 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 — crucial factors in cases where cops are charged with killing young blacks or Latinos.

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 police and prosecution witnesses than black witnesses, defendants or victims.

In nearly every major racially-charged case in past years where blacks were the victims of white cops, back to Rodney King, defense attorneys depicted the victims as 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 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 cops, and another to convict. Will this be any different?

Earl Ofari Hutchinson is an author and political analyst.

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