One prospective juror did not make enough eye-contact. Another appeared nervous and confused. A third had a son who was close in age to the defendant. A fourth was involved with the Head Start program.
These were just a few of the dozens of reasons Georgia prosecutors gave for eliminating people from sitting on the jury in the 1987 murder trial of Timothy Tyrone Foster, an 18-year-old black man charged with killing a 79-year-old white woman named Queen Madge White.
The one reason prosecutors did not give was the one thing those four potential jurors had in common: They were black.
A year before Mr. Foster’s trial, the Supreme Court, in the case of Batson v. Kentucky, reaffirmed that it is unconstitutional to exclude jurors because of their race – a practice with a long, odious history. It has survived thanks to the so-called peremptory challenge, which allows a juror to be excluded for no reason at all, as opposed to “for cause” challenges, in which a lawyer must give a reason for an exclusion, which the judge can accept or deny.
In requiring prosecutors to give a “race-neutral” reason for excluding black jurors, the court wrote that racial discrimination in jury selection “harms not only the accused whose life or liberty they are summoned to try,” but undermines “public confidence in the fairness of our system of justice.”
Mr. Foster was convicted by an all-white jury and sentenced to death. For nearly three decades since, state prosecutors have denied that race was a factor in their decision to strike all the black jurors from his trial. They have also steadfastly refused to turn over their jury-selection notes to defense lawyers.
Today, the Supreme Court will hear oral arguments in the case, Foster v. Chatman, to decide whether the prosecutors are telling the truth. The Georgia courts have all ruled in the state’s favor. But now those jury-selection notes are at the center of the case. Almost 20 years after Mr. Foster’s conviction, his lawyers finally got hold of them through the state’s open-records law.
The notes show that, contrary to prosecutors’ claims, race was indeed central to their decision to exclude certain jurors. Each black potential juror’s name is highlighted in green and marked with a “B”. The first four names on a handwritten list of “Definite Nos” are those of the black jurors who were struck. In a separate list, those jurors are ranked against one another, “in case it comes down to having to pick one of the black jurors.”
Prosecutors now claim, implausibly, that their notes show a concerted effort to keep diligent records in order to rebut expected charges of racial discrimination.
The Foster case may be an extreme example of how brazenly prosecutors will take advantage of peremptory challenges to create racially unrepresentative juries and win convictions. But is far from unique. In 2012, a North Carolina court examined 173 capital cases and found that prosecutors removed more than half of all black potential jurors, but only a quarter of the rest. A 2003 study of eight years of trials in one Louisiana parish found a black-to-white strike rate of three-to-one. In 1986, one Philadelphia prosecutor recorded a trial-training film for his staff in which he said, “you don’t want those people on your jury.”
Over the years, some Supreme Court justices have expressed discomfort with peremptory challenges. Justice Stephen Breyer wrote in a 2005 case, “the right to a jury free of discriminatory taint is constitutionally protected – the right to use peremptory challenges is not.”
Peremptory challenges can, when used honestly, help both sides in a trial ensure a more impartial jury. But is still far too common for prosecutors to exploit this tool for improper purposes. The justices should be particularly vigilant for such unconstitutional behavior, especially when it is dressed in “race-neutral” garb.
-New York Times; Monday, November 2, 2015; Page A20
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