Do notes highlighting prospective black jurors support a Batson violation? SCOTUS accepts case
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The U.S. Supreme Court has agreed to decide whether Georgia prosecutors violated a constitutional ban on the use of race in jury selection when they used jury lists with green highlighter noting black prospective jurors and used peremptory challenges to strike all of them.
The court granted cert on Tuesday in the case of Timothy Foster, a black man sentenced to death by an all-white jury for murdering a 79-year-old widowed white woman in August 1986. The Associated Press, SCOTUSblog and Reuters covered the cert grant.
In 2006, lawyers for Foster obtained the notes used by prosecutors through an open records request. According to the cert petition (PDF), the prosecution highlighted the names of prospective black jurors, circled the word “black” on questionnaires that asked for race, and labeled three of the four eligible black jurors B#1, B#2 and B#3.
An investigator for prosecutors said in a draft affidavit he ranked the black jurors against each other in case a black juror had to be selected. But the final affidavit submitted to the court omitted references to the race of prospective black jurors, the cert petition says.
The state argued in court papers that jurors were struck due to the state’s extensive investigation of their backgrounds rather than race, and there was no purposeful discrimination. Prosecutors also said in an affidavit that they weren’t responsible for the green highlighting.
The case is Foster v. Humphrey.
Hat tip to How Appealing.