The judge in the Ahmaud Arbery case said there appeared to be 'intentional discrimination' in jury selection. Here's why the trial moved forward anyway.

• Opening statements in the trial over Ahmaud Arbery's killing began Friday.
• After a 12-day jury selection process, just one Black man made it onto the jury.

A nearly all-white jury will decide the fate of three white men accused of chasing down and killing Ahmaud Arbery, a Black man whose family says he was just out for a jog, in February 2020.

After a long selection process which lasted two-and-a-half weeks and ended Wednesday, a single Black man made it onto the jury in a Georgia county where about a quarter of the population is Black or African American.

Prosecutors complained that 11 Black potential jurors had been eliminated because of their race, and even Judge Timothy Walmsley said in court that there seemed to be evidence of "intentional discrimination." But the case went forward anyway on Friday with opening statements.

Insider spoke to legal experts who said that the defense had a significant advantage in the jury selection process, and explained why the judge proceeded with the case after expressing reservations.

How jurors are selected

A pool of potential jurors is whittled down to a final jury through a process called voir dire, where jurors are questioned on matters relevant to the case and either eliminated "for cause" or with a "peremptory challenge," Vanderbilt law professor Chris Slobogin and defense attorney Julius Kim explained.

A potential juror can be eliminated for cause by admitting during this process that they can't be fair or impartial during the trial, while prosecutors and defense attorneys can use a peremptory challenge to eliminate a potential juror without stating a reason, the experts said.

Each side gets a limited number of peremptory challenges, however. The rules differ from state to state, but according to Georgia law, each defendant gets nine peremptory challenges, and the prosecution gets an equal number.

Judges have the ability to adjust the number of preemptory challenges each side gets, however, according to Slobogin.

In the Arbery case, the defense got 24 peremptory challenges and the prosecution got 12, as the Thomasville Times-Enterprise reported. Slobogin said this gave the defense a considerable advantage in eliminating people it didn't want on the jury.

The loophole allowing lawyers to shape mostly-white juries

Peremptory challenges can be reviewed, however, especially if lawyers on the opposing side see a pattern in the race of dismissed jurors.

Prosecutors in the Arbery case complained to the judge when the final jury was set, triggering a so-called "Batson" challenge. The challenge is named after the Supreme Court decision, Batson v. Kentucky, which banned the use of peremptory challenges motivated by race.

Under Batson, if a judge agrees that there appears to have been racial discrimination, then the side that is accused of discriminating needs to explain why they eliminated a potential juror, according to Kim. The explanation must be "race neutral" and "genuine," but it doesn't have to be as strong as a "for cause" strike, Slobogin said.

Later Supreme Court rulings have held that the explanation can be "silly or superstitious, implausible or fantastic," according to Slobogin.

In the Arbery case, the judge agreed that there appeared to be intentional discrimination. But after the defense gave explanations for why they dismissed the Black potential jurors, the judge said that their answers were enough to warrant a preemptory challenge.

Kim said that the judge could have brought back the dismissed jurors or started the jury selection process all over again if he didn't find the defense's explanations sufficient.

Having heard the defense's explanations for dismissing the Black potential jurors, Slobogin said one could argue that the defense was "acting in good faith" by using their peremptory challenges on those jurors, and that the judge made the right decision to accept those explanations and proceed to trial.

Slobogin gave the examples of two Black women who were dismissed from the jury, one for saying "the whole case is about racism" and the other for saying she thought Arbery's killing "was wrong."

"Neither of those explanations would probably be enough to remove those jurors for cause, but they are enough to remove them under Batson," he explained.

Still, the racial make-up of the jury "doesn't look good" from an outside perspective, Slobogin said, while Kim said it makes him "nervous" that so few minorities are on the jury.