UPDATE: Court recognizes racial discrimination in Foster, raises procedural concerns

By Matt Johnson
Associate Editor, Vol. 21

The Supreme Court listened to oral arguments on Monday, November 2 for Foster v. Chatman, a case this author looked at in more detail in a previous piece. The case centers around Timothy Tyrone Foster, an African-American man who was eighteen years old when convicted of murder by an all-white jury in Georgia.   The trial took place one year after the Supreme Court ruled in Batson v. Kentucky that peremptory challenges dismissing potential jurors could not be based on race.

As Danny Cevallos outlines, a Batson challenge is a three-step process: 1) The defendant must make a prima facie showing of discrimination, 2) the prosecution must offer race-neutral explanations for the strikes in question, and 3) the judge must determine if the improper racial motivation invalidates the juror strike.

The Foster case is unique, according to Cevallos, because it may confirm what many have known for years: requiring people to conjure up race-neutral reasons for discrimination does not prevent discrimination. This reality was not lost on the Justices at the time of Batson, particularly (and perhaps unsurprisingly) Justice Thurgood Marshall, who authored a concurring opinion: “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process,” he wrote. “That goal can be accomplished only by eliminating peremptory challenges entirely.”

The issue of race discrimination in Foster has reached the Supreme Court because Georgia courts have consistently rejected Foster’s claims of discrimination, even after his lawyers obtained prosecutor’s notes through the Georgia’s Open Records Act. In one example, a handwritten note headed “Definite No’s” listed six people, of whom five were the remaining black prospective jurors. The sixth person on the list was a white woman who made clear she would never impose the death penalty, Foster’s lawyer, Stephen Bright said Monday. “Even she ranked behind the black jurors,” Bright said.

Beth Burton, a deputy attorney general representing the state of Georgia, argued that – notes notwithstanding – prosecutors had a perfectly plausible, race-neutral explanation for removing each prospective juror. In the state’s eyes, the list of reasons written for striking jurors was simply a “laundry list,” or perhaps even an affirmative attempt to comply with the recently-decided Batson. This is a tricky argument to offer, given, as Foster’s lawyers note, that the state is only now arguing for the first time that the racially coded notes and lists were in anticipation of a Batson challenge.

Bright, who is the president of the Southern Center for Human Rights and lecturer at Yale Law School, believes it is hard to credit the race-neutral explanations when many of the reasons for striking the potential jurors were “demonstrably false.” Prosecutors considered one of the black women on the list, Marilyn Garret, acceptable for a time, but then she too was struck for reasons that several Justices reacted to skeptically. She was allegedly bumped because she was a social worker and her cousin had a drug arrest. The truth, however, was that she actually wasn’t a social worker, and the prosecutors had already admitted they only became aware of the cousin’s drug arrest after the trial. Mother Jones speculates that alone might be enough to sink the case for Georgia, while Bright drove home the point that the failure of prosecutors to confirm that the reasons were valid suggests that the “explanation is a sham and a pretext” for discriminating.

The Court appears to agree with him. As Mark Sherman of the Associated Press notes, at least six of the nine justices indicated during arguments that black people were improperly singled out and kept off the jury. Justice Breyer in particular appear unimpressed with the list of reasons provided, comparing the prosecutor to his grandson trying to get out of doing homework:

“Now, if my grandson tells me, ‘I don’t want to do my homework tonight at 7 because I’m just so tired. And besides, I promised my friend I’d play basketball. And besides that, there’s a great program on television. And besides that, you know, my stomach is upset, but I want to eat spaghetti.’ And so he’s now given me five different reasons.”

He also dismantled the argument that the prosecutors were simply noting the race of each juror in anticipation of a Batson challenge. Pointing out that this approach has not been used by the state until late in the appeal process Breyer asked Burton “If that had been his real reason, isn’t it a little surprising he never thought of it?”

Justice Kagan was a bit more blunt, at one point telling Bright “You have to deal with all this information that, what it really was, was they wanted to get the black people off the jury.” The Justices clearly regarded what was in the prosecutors’ notes as telling, reflected in Justice Kagan’s almost rhetorical question to the state’s attorney: “Isn’t this as clear a Batson violation as the court is ever going to see?”

Although these comments and others would suggest that Foster is likely to receive a new trial, it remains to be seen how narrowly the Court decides to rule in this case. Courts often try to base a decision on the facts of a particular case, rather than disseminate a more general rule that may be misapplied in the future. It seems increasingly likely that the Court will provide a narrow ruling here.

Even if discrimination is used more often in prosecution than one would hope, it does seem unlikely that such discrimination would be documented in the prosecutor’s notes and that such notes would fall into the hands of defense counsel. As some members of the Court recognized, there may not be another race-based jury selection case with evidence as seemingly clear-cut, despite the fact that this is clearly not an isolated incident. According to Slate, in Houston County, Alabama, from 2005–2009, prosecutors removed 80 percent of blacks qualified for jury duty. As author Dahlia Lithwick puts it, “the surprise isn’t what happened in Timothy Foster’s case; the surprise is that the prosecution didn’t send their notes through the shredder.”

However, a procedural issue that left many in the courtroom scratching their heads, Justices and counsel included, could derail what appears to otherwise be a favorable ruling for Foster. On Friday, the Court asked counsel to be prepared to explain whether the court’s decision in this case needs to be directed at the Supreme Court of Georgia or the Superior Court of Butts County, Georgia. Whether the Georgia Supreme Court decided Foster’s issue on the merits determines to which court the U.S. Supreme Court directs its writ of certiorari, and potentially narrows the scope of review, Chief Justice John Roberts said. Each court had rejected the claim, but what did their rulings actually mean?

The Justices, seemingly in general agreement on the fact that racial discrimination occurred, appear divided ideologically on this issue. In Lyle Denniston’s view, the more liberal Justices appeared to work to salvage the case for a ruling on the merits, and the more conservative Justices (read: Scalia and Kennedy) were more inclined to let the lower courts have a chance to resolve the procedural glitches.

A decision is expected by late spring, and the court has several avenues it could pursue. If the Justices decide Foster on the merits, it seems likely the prosecutors will get a good scolding. It’s unclear, though, if a win for Mr. Foster would be a catalyst for significant change or simply a reminder for prosecutors to get rid of incriminating notes. Cevallos and others propose doing away with peremptory challenges altogether, but it seems unlikely that the Justices would take a position that alters the jury selection process dramatically when the conservative justices will argue that this is a state court issue.

For what it is worth, this author believes the Court will formalize its disdain for such an overt Batson violation, considering discriminatory notes were literally highlighted in green. However, this could take the form of granting Foster a new trial, or simply sending it back to Georgia’s Supreme Court with a clear directive: when it comes to evaluating the legitimacy of peremptory challenges, do your homework.

Foster v. Chatman Oral Arguments (November 2, 2015)

Reconsidering Batson: Supreme Court to review death sentence handed down by all-white jury (Michigan Journal of Race & Law)

Why race is hard to erase from jury selection (CNN)

Batson v. Kentucky, 476 U.S. 79 (1986)

Supreme Court Justice Sotomayor Invokes Jailed Relatives to Highlight Racism in Jury Selection (Mother Jones)

Supreme Court troubled by Georgia prosecutor’s rejection of black jurors in death penalty case

Racism Highlighted in a Green Marker (Slate)

Argument analysis: To decide, or not – that is the question (SCOTUSblog)