Supreme Court to Rule on Race-Based Jury Selection

By Martin M. McSherry

Yesterday, the Supreme Court heard oral arguments for a case that will determine the integrity of anti-discrimination protections in the jury selection process. The case, Foster v. Chatman, concerns whether or not Georgia courts erred in finding that there was no race-based discrimination in the jury selection of a death penalty case from nearly three decades ago. Petition for a Writ of Certiorari, Foster v. Chatman, No. 14-8349 (U.S. Jan 30, 2015).  In 1987, an all-white jury in Rome, Georgia convicted a black teenager, Timothy Foster, of murder and sentenced him to death. Id. Open government laws revealed evidence of a pattern of blatant racism throughout the prosecution, particularly in the jury selection process that removed all five black jurors because of their race. As Timothy Foster awaits execution, he is only one of the 56 percent of those on death row who are people of color. “Death Row USA,” Criminal Justice Project, NAACP (2015). It is imperative the Supreme Court forcefully protects the integrity of the American criminal justice system by overturning the Georgia Supreme Court’s ruling and invalidating an unlawful, Jim Crow-style conviction.

One year before Foster’s conviction, the Supreme Court ruled in Batson v. Kentucky, “Prosecutors may not use race as a factor in making peremptory challenges.” Batson v. Kentucky. 06 S. Ct. 1712. In Foster’s case, prosecutors struck each of the five black members of the jury pool before the trial, providing reasoning for just one removal for cause. No. 14-8349, at 191. The rest were removed using peremptory challenges without a stated reason. Id.  Foster’s attorneys subpoenaed the prosecution’s jury selection notes, which revealed that on four different copies of the jury list, each black prospective juror’s name was highlighted in green. Id. A key at the top of the notes said that green highlighting “represents blacks,” but, in case the key was overlooked, they also circled the word “black” where each rejected juror wrote their race (see photo below). Id. The notes also referred to the black jurors as “B#1,” “B#2” and so on. Id. The prosecutor ranked each black juror against each other, in case “it comes down to having to pick one of the black jurors.” Id.

The prosecution's notes reveal race-based peremptory challenges.

Foster appealed the conviction to the Georgia Supreme Court, where the prosecution retroactively provided non-racial reasons for their peremptory challenges. Id. Many of these reasons were only applied to black jurors and not white jurors. For example, the prosecution struck one black juror because she worked as a teacher’s aide with “low income, underprivileged children,” which may result in her looking favorably on the defendant. Id., at 191. However, one white prospective juror also worked as a teacher’s aide with children of low socioeconomic status and the prosecution did not strike her from the jury pool. Id. On appeal, the prosecution justified the rejection of another black juror because he had a son who was the same age as Foster, but the prosecution never once asked the juror, labeled “B#3,” about the age of his son during voir dire. Id., at 192. This suggests the reason was  applied after the fact to justify a race-based exclusion. Even so, the prosecution accepted thirteen white prospective jurors with children between the age of 17 and 23. The defendant was 19. The rejected black juror’s son was 18. Id.

The prosecution also claimed that one rejected juror was stricken from the pool because her age was too close to the defendant’s, potentially resulting in bias. Id. The juror in question was 34 and the defendant was 19. Id. The prosecution accepted eight white jurors who were 34 and younger, including a man who was just two years Foster’s senior. Id. The reasoning the prosecution provided for striking the other jurors was similarly weak. Once prosecutor Stephen Lanier hand-picked the all-white jury he wanted, he urged them to sentence Foster to death to “deter other people out there in the projects.” Id., at 2. Over 90 percent of the residents of the housing projects in Rome, Georgia were black. Id., at 3. 

According to Batson, the case establishing relevant precedent by which the Court will rule, the plaintiff in a jury selection discrimination case “must only make a prima facie showing on the evidence from their case to mount a challenge to race-based use of peremptories.” Batson v. Kentucky, 06 S. Ct. 1712. Foster successfully made a prima facie showing of discrimination using the prosecution’s notes obtained from the Georgia Open Records Act in 2006, decades after the conviction, while he was on death row. No. 14-8349, at 14. However, when the burden shifted to the prosecution to provide non-racial reasons for striking all of the black jurors, the Georgia Supreme Court ruled that the strikes were “sufficiently neutral and legitimate,” even though the prosecution failed to apply those reasons to white jurors. Id., at 13. Despite overwhelming evidence of racial discrimination, the Georgia Supreme Court ruled that the prosecution had no “discriminatory intent” in striking each of the black jurors. Id. The Court also held that Foster was not entitled to the prosecution’s notes, which produced the evidence of blatant racism in the first place. Id. 

It's no surprise, then, that Associate Justice Sonia Sotomayor interrupted Georgia Deputy Attorney General Beth Burton's oral arguments to say, "I'm sorry, I'm so confused I can't even..."

It is clear the prosecution removed jurors in this case because of their race. Clearer, still, is that the Georgia Supreme Court not only erred in its ruling, but actively sought to subvert the safeguards in place to prevent racial discrimination in the jury selection process by holding that Foster did not have a right to the evidence he obtained through the Georgia Open Records Act. The U.S. Supreme Court must affirm the integrity of the racial protections outlined in Batson to prevent the obviously discriminatory motivations behind the prosecution’s peremptory challenges from ever happening again. If the justices accept the Georgia Supreme Court’s miscarriage of justice, it would nullify the well-established laws that ensure a fair trial and balance the need to strike jurors who may be biased with the need to limit the rejection of jurors for nefarious reasons. After the Roberts Court dismantled the Voting Rights Act in Shelby County v. Holder because a history of racism has “no logical relationship to the present day,” the willingness of the Court to uphold anti-discrimination laws from a few decades ago is up in the air. Shelby County v. Holder, 570 US _ (2013), at 4. Foster v. Chatman is a clear chance for the Supreme Court to reaffirm its commitment to protecting the American people against blatant, unconstitutional discrimination.

Foster may have committed the offense for which he was convicted. In fact, the evidence presented in the trial suggests that he probably did. That is entirely irrelevant to this appeal because he never received a fair trial. The prosecution ruthlessly and unlawfully crafted an all-white jury that would be receptive to its blaring dog whistles that still ring in our ears today. Foster will have tremendous legal consequences at a time when the criminal justice system, case after case, appears to be actively working against African Americans. The case, which has heretofore grabbed few headlines, should be closely followed by anyone interested in race relations, judicial procedure, open government, criminal justice reform and equal justice under the law.