OUT OF ORDER
Supreme Court Strikes Down Blocking Black Jurors—But Here’s Why It Will Keep Happening Anyway
A prosecutor wrote things like “B#” next to African-American jurors on a list and excluded one for being divorced, but today’s narrow opinion gives little guidance for the future.
At the murder trial of Timothy Foster, a young black man accused of murdering an elderly white woman, there were 42 prospective jurors. Only five of them were black. Yet Georgia’s prosecutor used his ‘peremptory challenges’ to strike every one of them.
That was nearly 30 years ago. Today, the Supreme Court ruled, 7-1, that the prosecutor discriminated against Foster, who has been on death row since 1988, and ordered a new trial, throwing out Foster’s death sentence.
Stephen Bright, Foster’s lawyer and the president of the Southern Center for Human Rights, told The Daily Beast that, in fact, this kind of discrimination happens all the time.
“What went on at trial was typical,” he said in an interview we conducted last fall. “What’s unusual is we know what’s in the prosecutor’s files.”
Indeed, one reason Foster v. Chapman came down the way it did, with Chief Justice Roberts writing the opinion, is that the facts were so egregious. There were two key points.
First, intrepid research by Bright’s team uncovered the prosecutor’s notes in the case, which identified the black potential jurors as B#1, B#2, and so on. Of the prosecutor’s list of six “definite NOs,” five were the black prospective jurors. One document specifically strikes a Church of Christ member with the note “No Black Church.” The list goes on.
Second, the prosecutor did come up with pretexts for striking the black jurors, because the Supreme Court had ruled, in a case called Batson v. Kentucky, that even discretionary challenges can be unconstitutional if they’re exercised on the basis of race. But in this case, the pretexts fell apart, in particular regarding two jurors. For example, one was struck because she was divorced—but three divorced white jurors were admitted. The other was struck because he had a son about the same age as the defendant—but so did a white juror, who was admitted.
Add that to the fact that the prosecutor’s reasons changed over the course of Foster’s appeals, contradicting earlier claims and strongly suggesting that these were mere pretexts.
So it’s a win for Foster—at least for now. Foster confessed to the murder and there was ample evidence to convict him. Probably his best hope is life in prison rather than the death penalty.
Yet while Foster has prevailed in this case, the way the opinion was written was so narrow as to be more of a draw for the administration of justice.
Bright says that “every prosecutor has a handy-dandy list of race-neutral reasons that they give” when it comes to exercising peremptory challenges. “They even distribute reasons in advance. Some state training programs even distribute a list called ‘Articulating Juror Negatives.’”
That is the real problem: that across the country, prosecutors are given enormous discretion—in Georgia, they have 20 peremptory challenges—and know how to weasel around the rules.
That certainly happened in Foster’s case. As the Court’s opinion relates, the prosecutor objected to one juror “because she: (1) worked with disadvantaged youth in her job as a teacher’s aide; (2) kept looking at the ground during voir dire; (3) gave short and curt answers during voir dire; (4) appeared nervous; (5) was too young; (6) misrepresented her familiarity with the location of the crime; (7) failed to disclose that her cousin had been arrested on a drug charge; (8) was divorced; (9) had two children and two jobs; (10) was asked few questions by the defense; and (11) did not ask to be excused from jury service.”
That’s typical of the “laundry list” approach that prosecutors use in order to avoid being accused of discrimination: just throw everything at the wall and see what sticks. It doesn’t matter if it’s incorrect—for example, this “too young” juror was actually 13 years older than a white juror who had been admitted. Just say everything and sort it out later if you have to.
Nothing in today’s case changes that. It’s not clear if the obviously pretextual reasons would have been enough, absent the incriminating prosecutor’s notes. The case, as Bright predicted last fall, was really decided on its specific facts. Chief Justice Roberts didn’t lay down any principles to guide future Batson challenges—only that in cases this egregious, you might lose.
For example, the Court said that the laundry list of “justifications for the strike seem reasonable enough.” The only problem was that “our independent examination of the record, however, reveals that much of the reasoning provided by [the prosecutor] has no grounding in fact.” That’s a narrow holding. Really, a laundry list of sundry “reasons” is reasonable enough? The bar is still quite high for Batson challenges; few defendants are represented by nonprofits like Bright’s, and almost none have the resources to do so much investigation.
And contrary to Justice Thomas’s concern in his dissent—yes, he was the lone dissenter—that now all defendants will go fishing for prosecutorial notes, the real result is that those notes will just be more carefully taken down in the first place. No one will be stupid enough to write “B#1” anymore.
But some will still think that way. Of course, the majority of prosecutors are working hard to do their jobs fairly. But prosecutors are also 95 percent white, and an exhaustive analysis of conviction data found that black defendants, adjusting for all permissible factors like crime and criminal history and so on, are sentenced 9 percent more harshly than white ones. Race-based jury challenges are one piece of that.
Moreover, as Bright said, imagine what it’s like when a person of color “comes to a courtroom where you may have a 30-40 percent black population, and the average citizen sees all-white juries. Not only that: everybody’s white up there in the front: the prosecutor, the judge, the jury. The only person of color is the person on trial.” This is the reality not only in 1988, but in 2016 as well.
Foster v. Chapman does not alter these basic, cruel realities. Yet it does keep the principle of Batson alive, and show that, at least in some cases, all-white juries violate the Constitution. Whatever the case’s limitations, it is still powerful to say, as Chief Justice Roberts wrote at the end of his opinion, that “two peremptory strikes on the basis of race are two more than the Constitution allows.”