Peremptory Prejudice

Racism still infects jury challenges, even if most aren’t as blatant as these awful Georgia prosecutors.

Chief Justice of the US Supreme Court John Roberts listens during the 37th Kennedy Center Honors at the Kennedy Center December 7, 2014 in Washington, DC.
Chief Justice John Roberts wrote for the seven justices in the majority in Foster v. Chatman. Above, Roberts at the Kennedy Center Dec. 7, 2014, in Washington, D.C.

Brendan Smialowski/Getty Images

On Monday, the Supreme Court decided a trio of cases in its usual post-Scalia fashion: Either by 7–1 margins and very narrowly, or unanimously and also narrowly. In each of these cases, the court’s liberal wing can be said to have had a good day. The court also accepted no new cases for next term. Maybe this new eight-member court that decides as little as humanly possible really is a good innovation. Or maybe the court should just close its doors and turn the place into a nightclub.

In perhaps the day’s main event, Timothy Foster won his case in Foster v. Chatman—a truly hideous claim of racially tainted jury selection that has kept the defendant on death row for nearly 30 years. Back in 1987, at his trial for the murder of an elderly white woman in rural Georgia, Foster—poor, young, black, and intellectually disabled—faced an all-white jury that had been stripped of any potential black jurors by prosecutors who had, at jury selection, marked in green highlighter the name of every black person on the jury list and added a B next to them. They also referred to three black jurors as “B#1,” “B#2,” and “B#3” in their notes, and an investigator wrote that in case “it [came] down to having to pick one of the black jurors,” the prospective black jurors should be ranked against one another.  

Prosecutors got their all-white jury, who they then told at trial to vote for the death penalty for Foster to “deter other people out there in the projects.” The jurors obliged. When the notes turned up decades later, following Foster’s open-records request, his lawyers appealed his conviction to the Georgia Supreme Court contending that striking all of the black jurors for race was unconstitutional. In a 1986 case called Batson v. Kentucky, the high court ruled that so-called peremptory challenges, which let prosecutors exclude a juror for no stated reason, could never be used in an attempt at “purposeful racial discrimination to bar African Americans from juries.” Peremptory challenges are different from “for cause” challenges, where lawyers must explain to a judge why they are excluding a juror. Peremptory challenges continue to be infected by racial bias in many jurisdictions, but prosecutors are pretty adept at concealing it. They were not in this case.

Still, the Georgia Supreme Court disagreed that there had been a Batson violation, finding that Foster’s execution could proceed because prosecutors had not  “demonstrated purposeful discrimination” in striking black jurors. His claims had no “arguable merit,” the state high court found. The case was appealed to the U.S. Supreme Court, which heard arguments in November.

Among other things to surface at oral arguments, Justice Sonia Sotomayor mentioned that she had cousins in jail whose names she did not know, Justices Samuel Alito and Anthony Kennedy found the pretextual arguments about why certain jurors were struck by the state pretty darn flimsy, and then Elena Kagan said aloud, “Isn’t this as clear a Batson violation as a court is ever going to see?” So it’s not a big surprise that the court found by a 7–1 margin that the Georgia Supreme Court had erred in finding that prosecutors hadn’t used race to exclude potential black jurors. The ruling reversed Foster’s conviction, meaning he can go back to the Georgia Supreme Court and will probably get a new trial.

Chief Justice John Roberts, writing for the seven justices in the majority, dove deep into the facts of the jury selection, finding that in the aggregate the prosecutors’ proffered reasons didn’t hold water.  After resolving a jurisdictional question, he turned—scorchingly—to the conduct of the prosecutors, attempting to reconcile the reasons they gave for striking various black jurors (employment, age, place of residence, church membership) with the facts before him (all that green-highlighted marking and those letters B). The opinion is a devastating indictment of the prosecutors. As Roberts notes, several times, white jurors in substantially similar situations as the black ones were not struck. The chief justice then calls out, with respect to two black jurors, the prosecution’s “shifting explanations, the misrepresentations of the record, and the persistent focus on race in [their] file.” The majority was “left with the firm conviction” that the removal of these two jurors was “motivated in substantial part by discriminatory intent.”

Roberts rightly called the number of references to race in that prosecution file “arresting.” He then concluded that it was clear that at least two of the jurors were removed with peremptory challenges because they were black and that “[t]wo peremptory strikes on the basis of race are two more than the Constitution allows.”

Justice Samuel Alito wrote a concurrence contending that the high court had no jurisdiction to hear the case, even if he agrees there was a Batson violation.  

Justice Clarence Thomas, the court’s lone black justice, wrote a lengthy dissent, agreeing with Alito on jurisdictional grounds but also arguing that the court’s findings on the prosecution’s treatment of the race of the jurors were improper. In Thomas’ eyes these issues were litigated up and down in the courts for years and it’s absurd to reach these conclusions now. He is also mad at his colleagues for declining to defer to the trial court, which actually heard these arguments face to face.  

This ruling is obviously the right one, but it’s important to understand how limited an opinion it really is. Most prosecutors don’t use green highlighters and the letter B to perform publicly the extent of their racial intentions. This is a strange outlier case, made stranger by a state’s open records laws and the completely implausible arguments proffered to explain the prosecution’s conduct. There is nothing in Monday’s opinion that would really limit the use of peremptory challenges that come wrapped in plausible-sounding explanations, even when the underlying intent is to strike black jurors.

Race taints everything about our capital punishment system just as it taints our elections. It simply simmers under the surface, and there it will stay. Despite the fact that it infects every single part of jury selection in some places, as Rob Smith recently noted in Slate, racism in our system of capital punishment won’t be addressed soon, it seems. Study after study reflects the fact that black jurors are struck far more frequently than white ones. Foster gave us a way to talk about it but not a way to fix it.

Stephen Bright, Foster’s counsel of record, noted correctly in a statement Monday morning that this decision would not end jury selection discrimination. “Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes,” he said. “The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination.”  

There is a third alternative as well. As Smith wrote earlier this month: “It has become indisputably clear in the 40 years since the Supreme Court held the modern death penalty constitutional that the only way to eradicate race from the death penalty is to eradicate the death penalty.”