Supreme Court Report

Juror strikes in capital murder case were based on race, SCOTUS rules

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The U.S. Supreme Court spoke with a little extra emphasis, if not unanimity, when it ruled late in its term that the state of Georgia had violated the U.S. Constitution by striking two jurors on the basis of race in a capital murder case.

“Two peremptory strikes on the basis of race are two more than the Constitution allows,” Chief Justice John G. Roberts Jr. wrote for the majority in Foster v. Chatman. It was a 7-1 judgment, with Justice Samuel A. Alito Jr. concurring in the outcome and Justice Clarence Thomas dissenting.

The chief justice was sending “the undeniable message that racial discrimination is going on in jury selection and prosecutors are lying about it,” says Stephen B. Bright, who represented defendant Timothy Tyrone Foster before the high court.

“I don’t think anybody would believe that what happened to Tim Foster is limited to that case,” says Bright, the president and senior counsel of the Southern Center for Human Rights in Atlanta. “This is just one of those serendipitous cases in which we were able to get the field notes.”

Racial Notations

Foster, an African-American, was convicted in the Aug. 28, 1986, death of Queen Madge White, a white, 79-year-old widow and retired schoolteacher who was found dead on the floor of her home in Rome, Georgia. She had been beaten, sexually assaulted and strangled. Foster confessed to the killing, and some of the woman’s possessions were recovered from his home.

Foster was charged under Georgia law with malice murder and burglary, and he was convicted and sentenced to death by an all-white jury. During a later state habeas proceeding, his lawyers filed requests under Georgia’s open-records law seeking access to the prosecution’s file from his 1987 trial.

The documents unveiled in the request and admitted into Foster’s habeas proceeding were critical to his victory this spring in the Supreme Court. They include copies of the prosecution’s jury venire list, in which the names of black prospective jurors were highlighted in bright-green marker. Also, the letter “B” was noted next to each of these juror’s names.

Prosecutors also circled the word black under the “race” question on the questionnaires of five members of the jury pool, and identified three black prospective jurors as “B#1,” “B#2” and “B#3.” The office also ranked the black prospects against each other in case, in the words of a prosecution investigator, “it comes down to having to pick one of the black jurors.”

The prosecution would go on to give explanations for its peremptory strikes of the black jurors that were contradicted by its notes. The notes “revealed an obsession with race,” Bright says.

The state of Georgia contended that—contrary to the idea that prosecutors were discriminating based on race—they were attempting to comply with the Supreme Court’s decision in Batson v. Kentucky, decided in 1986. Batson held, among other things, that a defendant may establish a prima facie case of purposeful dis-crimination solely on evidence about the prosecutor’s exercise of peremptory challenges at trial.

“These notes that we have, they don’t undermine any of the findings that were given by the prosecutor in his strikes,” said Beth A. Burton, a Georgia deputy attorney general, at oral argument last November. “The reasonable explanation in this case is [that] four months prior to trial, Batson had just come out.”

Because of the then-new ruling, and because of various Batson challenges filed by Foster’s lawyers at this early stage, prosecutors were preparing a Batson defense, she said. “So I would be more surprised, quite frankly, if there wasn’t some sort of highlighting” based on race, Burton said.

The state habeas court denied relief to Foster. It held that, as a preliminary matter, his Batson claim was not reviewable because it had been raised and rejected in his direct appeal to the Georgia Supreme Court. Nevertheless, the state habeas court concluded that Foster’s renewed Batson claim was without merit because he had “failed to demonstrate purposeful discrimination.”

The Georgia Supreme Court declined to take up Foster’s habeas case, which led him to petition the U.S. Supreme Court.

‘Shifting Explanations’

Chief Justice Roberts, in his May 23 opinion in Foster, offered a reminder of the three-step process from Batson for determining when a peremptory strike of a juror is discriminatory. First, the “defendant must make a prima facie showing that the peremptory challenge has been exercised based on race; second, ... the prosecution must offer a race-neutral basis for striking the juror in question; and third, ... the trial court must determine whether the defendant has shown purposeful discrimination.”

Both parties agreed that Foster had made a prima facie case, and that the prosecution had offered race-neutral explanations for excluding prospective black jurors. So Roberts focused on the third step, and in particular on the strikes of two black prospective jurors, Marilyn Garrett and Eddie Hood.

Prosecutors struck Garrett citing a “laundry list” of reasons, Roberts said, including that she had given short and curt answers during voir dire, was too young, was divorced, and had two children and two jobs.

But Garrett was on the prosecution’s list of “definite nos,” and the prosecution decided to strike her only after it learned it would not need to use a peremptory strike on another black prospective juror, who was excused for cause. And the state “willingly accepted white jurors with the same traits that supposedly rendered Garrett an unattractive juror,” Roberts said.

For example, the claim that Garrett was too young was based on the prosecution’s desire to have older jurors who would not easily identify with the then-young defendant. “Yet Garrett was 34, and the state declined to strike eight white prospective jurors under the age of 36,” the chief justice said.

When it came to Hood, who was married, had good employment and was in the age range sought by the prosecution (between 40 and 50), he was nonetheless struck by prosecutors. The reasons given included that Hood had a son who was the same age as the defendant and who had previously been convicted of a crime, that Hood was slow in responding to death penalty questions, and that he was a member of the Church of Christ, about which the prosecution had concerns related to its death penalty teachings.

The chief justice said that Hood had repeatedly asserted during voir dire that he could impose the death penalty. And prosecutors acknowledged in a document that the Church of Christ took no stand on capital punishment.

Roberts said that it was not just that prosecutors’ stated reasons for striking black panelists applied similarly to nonblack panelists who were permitted to serve. “There are also the shifting explanations, the misrepresentations of the record and the persistent focus on race in the prosecution’s file,” the chief justice said. “Considering all of the circumstantial evidence that ‘bear[s] upon the issue of racial animosity,’ we are left with the firm conviction that the strikes of Garrett and Hood were ‘motivated in substantial part by discriminatory intent.’ “

Justice Alito concurred in the judgment and expressed the view that it would be up to Georgia’s courts to decide whether Foster was entitled to relief, such as a new trial. (Bright believes his client will receive a new trial.)

Justice Thomas’ dissent said Foster’s new evidence did not justify the Supreme Court’s reassessment of who was telling the truth 30 years ago.

“In few other circumstances could I imagine the court spilling so much ink over a fact-bound claim arising from a state post-conviction proceeding,” Thomas wrote. “It was the trial court that observed the [pool of jurors] firsthand and heard them answer the prosecution’s questions, and its evaluation of the prosecution’s credibility on this point is certainly far better than this court’s nearly 30 years later.”

unconscious bias?

Abbe Smith, a professor at Georgetown University Law Center, says that despite 30 years of Batson, racially motivated peremptory challenges occur in cases big and small, in ordinary felonies and capital murder prosecutions. “It really is remarkable that in so many jurisdictions that are racially diverse, you still see all-white juries,” she says. The Foster case is not an anomaly, she adds. It’s simply a case in which the smoking-gun evidence came to the fore.

“There is long-standing evidence that prosecutors are trained to be crafty and wily in the exercise of peremptory challenges,” Smith says.

The Georgia attorney general’s office did not respond to a request for comment after the Foster decision.

Maureen A. Howard, a former Washington state prosecutor who is now an associate professor at the University of Washington School of Law, says some discriminatory use of peremptory challenges is the result of unconscious bias by prosecutors, who “may be unaware of their own implicit bias when analyzing their reasons for dismissing a potential juror of color.”

“My hope is that the egregious facts in Foster will provide a wake-up call to state courts and bar associations,” Howard says. She has called for peremptory challenges to be eliminated for prosecutors altogether, but lawyers and judges could work to provide “a more objective standard for reviewing peremptory challenges.”

This article originally appeared in the August 2016 issue of the ABA Journal with this headline: “B for Black: Juror strikes in capital murder case were based on race, court rules.”

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