Prosecutor's notes on potential jurors in Foster's case. Note where black candidates are highlighted in green with the "B" notation.
On Monday, the Supreme Court heard arguments in
Foster v. Chatman, a case involving the exclusion of black citizens from juries in a death penalty trial. The case comes almost thirty years after
Batson v. Kentucky, where the Supreme Court prohibited striking a juror based on race.
At issue in this case is the 1987 trial of Timothy Foster, an 18-year-old poor, black, developmentally delayed man accused of murdering an 80-year-old white woman. Yesterday's Supreme Court arguments were specifically focused on the jury selection process in Foster's case, where the prosecution struck 100 percent of the black jurors.
At the time, the total exclusion of black jurors was challenged by Foster's lawyers as a violation of Batson, but prosecutors presented reasoning for each juror strike. It was weak reasoning—the potential juror didn't keep eye contact, looked bored, was a social worker, and other random minor infractions—but it was reasoning nonetheless, and under Batson it was sufficient. The defense requested to see the prosecution's notes from jury selection to confirm that race didn't influence why selected jurors were dismissed, but the prosecution didn’t want to turn them over, and the courts didn't make them.
Foster was convicted and sentenced to death. During the trial, the prosecution asked the jury to give Foster the death penalty in order to "deter other people out there in the projects."
Fast forward twenty years to 2006, when Foster's attorneys decide to use the state's Open Records Act to get a hold of the prosecution's notes. According to Slate:
The notes showed that every prospective black juror’s name had been flagged in green highlighter. They were identified as “B#1,” “B#2,” and “B#3,” and the notes mentioned which person to keep “in case it comes down to having to pick one of the black jurors.” The first four names on a handwritten list titled “Definite NOs” were those of the black jurors who were struck.
See more below the fold.
The state of Georgia denied an appeal, so they took the case all the way to the Supreme Court. Steve Bright, from the Southern Center for Human Rights, argued in support of Foster on Monday.
Ultimately, Foster's case exemplifies a problem that continues almost thirty years later—the continued exclusion of blacks from juries. Batson has been insufficient in ensuring that blacks are represented in juries. Batson ruled that peremptory challenges, meaning the dismissal of a juror without reason, couldn't be used as a tool for "purposeful racial discrimination." But what a prosecutor (or defense counsel) has to do in order to overcome the obstacle presented by Batson is think up a "neutral explanation." Batson, then, has diluted function in reality, since, as Slate points out, "most prosecutors—indeed most high-functioning middle-schoolers—can usually muster a reason that sounds reasonable and race-neutral."
It's not just the Foster case, and its not just Georgia. In twenty years of North Carolina capital trials, "prosecutors struck eligible black venire members at about 2.5 times the rate they struck eligible venire members who were not black." This rate is consistent and controlled for other possible factors, such as "views on the death penalty or prior experience with crime." In Caddo Parish, Louisiana, the disparity is also unmistakable. A study found that:
When presented with an otherwise qualified black juror, the State exercised its discretion to peremptorily strike that juror 46% of the time. By comparison, when presented with an otherwise qualified juror who was not black, the state exercised its discretion to peremptorily strike the juror 15% of the time.
It's not just jury selection, either.
Batson's approach to racism in jury selection is a microcosm of the law's approach to racism in both law and procedure. The legal system only acknowledges racism when racism is explicit and obvious. But even the slightest cover-up—"I rejected that juror because she has a teenage son" to take an example from the prosecution in
Foster—clears prosecutors of wrongdoing and functionally eliminates the possibility of racism.
There's an argument that, while explicit racism in the courtroom is mostly a relic of Jim Crow, racism in the criminal justice system is as bad as ever. After all, implicit racism cloaked in excuses and euphemisms is still racism. Chances are every juror in the room knew what the prosecutor meant when he said "people in the projects." Implicit racism is real, and it is dangerous.
And statistical disparities exist—not just in jury selection, but in arrests, convictions, death penalty sentences, incarceration. It's not clear how much of the disparity is due to explicit racism. And yet, the disparity exists. Still, other forms of racism are currently left largely unaddressed by our legal system.
As it stands, the rules controlling the boundaries of legal vs. illegal racism are failing minorities. If Batson was intended to significantly reduce racial discrimination in jury selection, it is failing—especially in capital trials, the trials with the highest stakes.
In 2013, a Washington Supreme Court decision concluded that Batson protections are not enough.
We...take this opportunity to examine whether our Batson procedures are robust enough to effectively combat race discrimination in the selection of juries. We conclude that they are not. Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection. In part, this is because Batson recognizes only "purposeful discrimination," whereas racism is often unintentional, institutional, or unconscious. We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination."
It's not clear yet what the court will do in this case, but justices
seemed to agree that prosecutors in the
Foster case removed jurors simply based on race. Justices Kagan, Sotomayor, Breyer, and Ginsburg were unsurprisingly skeptical of the state's confusing argument, essentially that the prosecutors' notes focused on race so that they wouldn't decide based on race. But it wasn't just the most liberal wing of the court that seemed troubled by
Foster's case. Justices Alito and Kennedy also highlighted the inconsistencies.
The hope is that the court finds clear discrimination and expands Batson's protections. But even if Foster and Bright are victorious, there is still much work to do in addressing racism in the criminal system, and in other legal arenas as well. There's a lesson to be learned from Batson, and from the thirty years since. As racism evolves and changes forms, so must the tools that fight against it.