On Monday, the U.S. Supreme Court made a rare decision when it comes to Black defendants in the criminal justice system: It ruled that death row inmate Timothy Foster should get a new trial.
In Foster v. Chatman, the Supreme Court agreed in a 7-1 vote with Foster that at trial, the prosecution’s removal of Black individuals from the juror pool was racially motivated. Before you clap with glee, however, let me note the facts of Foster are so egregious that it is unlikely to have any effect outside of this one case.
Timothy Foster was sentenced to death in 1987 for the murder of an elderly white woman in Floyd County, Georgia. The prosecution had eliminated every eligible Black person from the jury pool. And once the prosecution had obtained an all-white jury, the lead prosecutor, Stephen Lanier, urged that jury to impose the death penalty in order to “deter other people out there in the projects”—an obviously racist dog-whistle.
Prior to the all-white jury being empaneled, Foster’s attorneys requested something called a Batson hearing based on a 1986 Supreme Court decision. In an effort to reduce racial bias in the jury selection process, the Supreme Court in Batson v. Kentucky had set up a three-step process, by which a defendant’s complaint of racial bias in jury selection could be evaluated.
Lawyers can use peremptory challenges, also sometimes called peremptory strikes, to remove a potential juror without stating a reason, though they may be required to do so later. The number of strikes allowed varies, but it’s usually somewhere around ten. In the process outlined in Batson, the defendant must make their “prima facie case”—a set of facts and evidence that, unless rebutted, are enough to prove a particular claim—that prosecutors used peremptory strikes to exclude from the jury most or all members of the racial group to which the defendant belongs. Once that initial case is made, the prosecution gets an opportunity to demonstrate that what may look like race-based considerations were actually race-neutral considerations. Finally, the trial judge is tasked with considering all of the evidence offered by the prosecution and defense and making a decision as to whether or not the prosecution’s race-neutral reasons for keeping jurors of color from serving are sufficient, or whether they constitute a pretext for racial discrimination.
The trial court sided with the prosecution and rejected Foster’s Batson claim, as did every subsequent appellate court, until the case landed on the Supreme Court’s doorstep last year. In the meantime, Foster was convicted of murder and sentenced to the death penalty.
The only issue the Supreme Court had to decide was related to the third step in the Batson test: Both parties had agreed that Foster had demonstrated a prima facie case—basically by pointing to the all-white jury—thus satisfying step one. They had also agreed that prosecutors had offered race-neutral reasons for their peremptory strikes, thus satisfying step two. The Court therefore addressed whether or not those prosecutor’s “race-neutral” reasons were really just a pretext for racial discrimination.
The Court found that they were. Given the facts of the case, however, it’s easy to believe that the Court would not have ruled in Foster’s favor—and instead, would have deferred to the trial court’s decision during the Batson hearing—had the prosecution not maintained records detailing its blatant race-based motivation.
In 2006, nearly 20 years after Foster had been convicted and sentenced to death by an all-white jury, his lawyers obtained copies of the prosecution’s notes through an open records request under Georgia law. Those notes made it clear that the prosecution had intentionally eliminated every Black juror from the pool.
The notes contained four copies of a list of prospective jurors. On each of the four copies, the names of the Black jurors were highlighted in green and marked with the letter “B.” On the juror questionnaires, where prospective jurors had indicated their race, the prosecution had circled the word “Black.” All of the Black jurors were listed on the prosecution’s list of “Definite NOs.” And the prosecution ranked the Black prospective jurors by favorability in case, according to a draft affidavit signed by the prosecution’s investigator, “it comes down to having to pick one of the black jurors.”
As it had at trial, the prosecution piled on race-neutral reasons for eliminating the Black jurors in its briefs submitted to the Supreme Court. The prosecution even added a dose of outrage: “[t]he Defenses’s [sic] misapplication of the law and erroneous distortion of the facts are an attempt to discredit the prosecutor… The State and this community demand an apology.”
No apology will be forthcoming, however, because the the Supreme Court sided with Foster, ruling that “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.” With respect to two of the four jurors the prosecution had stricken, the Supreme Court found the prosecutor’s race-neutral reasons to be pretextual. In both cases, the prosecutor struck a Black juror for a given reason, but empaneled a white juror who had similar unattractive characteristics to that Black juror. For example, the prosecutor eliminated juror Marilyn Garrett, claiming she was too close in age, at 34, to the age of the 19-year-old defendant. The prosecution then proceeded to accept eight white prospective jurors under the age of 35. In addition, the prosecution eliminated juror Eddie Hood on the grounds that he had an 18-year-old son, close to the defendant’s age. But the prosecution accepted two white jurors who had sons in the same age range as Foster.
That was enough for the Supreme Court to prove purposeful discrimination: “As we explained in Miller-El v. Dretke, if a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack panelist who is permitted to serve, that is evidence tending to prove purposeful discrimination.”
“[T]he focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury,” Chief Justice John Roberts, writing for the majority, explained.
It is without a doubt a good result for Mr. Foster. But this case, contrary to some commentators on the subject, is not necessarily a harbinger of good things to come in terms of eliminating racial bias in jury selection.
The discrimination in Foster’s case was so blatant that the Supreme Court basically had no choice but to rule in Foster’s favor. If I may make a crude analogy, this case is akin to the one involving the police killing of Walter Scott: The only reason Michael Slager is facing federal charges is because a video clearly showed him shooting Scott in the back. Had the video not surfaced, based on overwhelming precedent, Slager would have almost certainly gotten away with lying that Scott had taken his Taser and that he had shot Scott because he feared for his life.
Similarly, the prosecution’s notes in Foster’s case are damning.
But what about those prosecutors that aren’t daft enough to compile or keep the sort of notes that the prosecutors in Foster did?
All but the most witless prosecutors are able to come up with race-neutral reasons for striking a Black juror. Indeed, there are seminars and panels that prosecutors can attend where they are trained to cover up racial discrimination in the jury selection process by keeping race-neutral explanations for striking Black jurors in their back pocket, according to an amicus brief filed in Foster’s case by a group of prosecutors. In North Carolina, for example, the North Carolina Conference of District Attorneys held a statewide training course in 1995 providing a list of justifications that prosecutors could use when striking jurors: a document entitled “Batson Justifications: Articulating Juror Negatives.”
And even without training, all that prosecutor needs to do is a search on a case law database like Westlaw or LexisNexis and choose reasons for eliminating Black jurors based on, as Justice Rehnquist put it in Batson, “seat-of the-pants” instincts that courts around the country have already deemed race-neutral. Reasons like the following (all of which have been approved in state or federal courts around the country):
- The juror had a poor attitude;
- The juror appeared uninterested;
- The juror seemed unintelligent or bewildered;
- The juror seemed hostile toward the prosecutor;
- The juror avoided eye contact with the prosecutor;
- The juror seemed nervous;
- The juror appeared indecisive;
- The juror may have trouble getting along with the other jurors;
- The juror was known to be anti-law enforcement from previous experience.
These are some of the more “gut-based” reasons that appear racially neutral, but which are almost inevitably a product of the prosecutor’s own biases. In other words, a prosecutor may unconsciously be inclined to think that Black people have poor attitudes, and that bias may play into the prosecutor’s decision to strike a Black juror. If that juror were white, the bad attitude might not register as a characteristic disqualifying that juror from service. These reasons could, in theory, fail in the Supreme Court, but the Court will tend to defer to the trial court.
The Court in Batson tried to develop a way to balance a long-standing history of permitting parties to use peremptory challenges, with equal protection concerns that racial bias makes peremptory challenges inherently unfair. But it left major questions unanswered: primarily, how judges are supposed to evaluate peremptory challenges and determine whether or not they are legitimate or the result of racial bias.
Part of the problem with Batson is that it is internally inconsistent, as Brian J. Serr and Mark Maney point out in a law review article published in the Journal of Criminal Law and Criminology. “In one place, the Supreme Court merely forbade prosecutors from challenging jurors solely on account of race, but elsewhere in the Batson opinion, the Court required prosecutors’ motives to be racially neutral.” “Racially neutral” implies that the prosecutor should not consider race at all when deciding whether to strike a particular juror. But “solely on account of race” indicates that the court will accept a purportedly race-neutral reason for striking a juror that is partly based on race.
The result is that a defendant must overcome an overwhelming burden in order to pierce the veil of a prosecutor’s purported race-neutral reasons for striking Black jurors. Moreover, as Justice Clarence Thomas pointed out in his dissent in Foster v. Chatman, “[b]ecause the adjudication of [a defendant’s] Batson claim is, at bottom, a credibility determination, we owe ‘great deference’ to the state court’s initial finding that the prosecution’s race-neutral reasons for striking [the jurors] were credible.”
This great deference often leads to appellate courts rubber-stamping state court determinations of the pretextual nature of a prosecutor’s use of peremptory challenges. If a trial court rules that the peremptory challenge was not a pretext for racial discrimination, an appellate court will rarely disturb that ruling out of deference to the trial court’s judgment. And, in turn, the Supreme Court will rarely overrule those appellate decisions—the Court, after all, rejects the overwhelming majority of certiorari petitions.
In other words, had Foster’s attorneys not gotten their hands on the prosecution’s notes, the outcome in Foster likely would have been vastly different.
As Thurgood Marshall cautioned in his concurring opinion in Batson v. Kentucky, “Prosecutors are left free to discriminate against blacks in jury selection provided that they hold the discrimination to an ‘acceptable’ level.” In Marshall’s estimation, the only way to eliminate racial biases in jury selection is to eliminate the use of peremptory challenges altogether. But despite calls to do exactly that over the past 30 years, the peremptory challenge seems to be a fixed element of jury trials, even though the Constitution says nothing about them.
So no, this case is not going to have a big impact on racism in the criminal justice system. It will not desegregate juries. It’s just going to force prosecutors to be slightly more sneaky about their motives.