What was the defense up to in the Arbery case?

Apart from the facts and the testimony in the Georgia murder trial of the three men who chased down and killed Ahmaud Arbery, the defense counsel for William Ryan, attorney Kevin Gough, made news by making unusual – and some say racist – comments in support of a motion for a mistrial.  They were not made in front of the jury, but the jury is not sequestered and have access to news reports.

His complaint was the presence of black pastors sitting in the gallery with the Arbery family.  Specifically, he was referring to Al Sharpton.  Regardless of whether one thinks of Sharpton as a civil rights leader or an opportunist race-baiter (I lean to the latter), it was a seemingly knuckle-headed action.  Not only did he object to Sharpton’s presence but said he did not want to see more black pastors in the audience.  He claimed their presence, itself, could prejudice the jury.

It has all the markings and optics of a trial that might have taken place in Georgia in the 1940s.  Gough even looked like one of those racist lawyers of yore.

His request for a mistrial was not granted, of course.  And he seemed to have handed the high ground to Sharpton in the court-of-public-opinion.  It also presented a challenge for black pastors to push back.

In the following days, Jesse Jackson arrived on the scene.  And then there was a demonstration of some 50 black pastors outside the courthouse.  That led Gough to again complain about black pastors and again request a mistrial.  And again, it was rejected – as Gough must surely have expected.

It was not even clear why Gough thought the presence of a black pastor sitting next to the grieving family would have prejudiced the jury against the defense.  And it did not seem like a misstatement.  Lawyers are very strategic in what they say.

So, what was this defense gambit all about?

I will offer my own opinion, although I do so with less than 100 percent confidence that I am correct.  Maybe only 90 percent.  But here goes.

Unlike many observers – especially on the left – I think Gough was concerned that the jury would not judge the case on racist lines.  The defense had a losing case, and they knew it.

But Gough may have hoped that there was at least one person on the jury who would put race over facts.  One juror who needed a little more encouragement to look at the case with a racial prejudice.  One juror who would prevent a unanimous decision against his defendant.  

If prosecutors feel that a case cannot win acquittal, then the best option is to get a hung jury – and to fight again another day.

We cannot even say that Gough, himself, is a racist.  It may be that he is doing what lawyers do.  They pull out all stops to try to win a case.  Although a willingness to promote racism could arguably make Gough a racist.  But he is not the one on trial.

Yes, I do believe Gough was playing the race card.  He seemed to be mining for racism among the jury –hoping they get the message.  I can think of no other reason for injecting race into the proceedings in such an overt way.  We will soon learn if he succeeded in finding that juror.

So, there ‘tis.