If a man’s life was not potentially at stake in Foster v. Humphrey, a case the Supreme Court announced that it will hear on Tuesday, and if the case did not involve what appears to be complete and utter disregard of the Constitution’s prohibitions on race discrimination, then the facts of this case would almost be humorous. The prosecution created detailed records suggesting that they engaged in unconstitutional race discrimination. Short of publishing a book entitled “Violating The Supreme Court’s Holding In Batson v. Kentucky Is Our Bag, Baby,” it’s hard to imagine anything more the prosecutors in this case could have done to demonstrate that they disregarded the Constitution.
Timothy Tyrone Foster was convicted of murder and sentenced to die by an entirely white jury after prosecutors struck all four members of the jury pool who were African American. Some time after the trial, Foster’s attorneys obtained the prosecution’s notes on jury selection, and, as his attorneys explain, the notes provide compelling evidence indicating that the black jury pool members were struck because of their race:
The notes reflect that the prosecution (1) marked the name of each black prospective juror in green highlighter on four different copies of the jury list; (2) circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors;” and (5) created strike lists that contradict the “race-neutral” explanation provided by the prosecution for its strike of one of the black prospective jurors.
In most jurisdictions, lawyers in criminal cases are permitted to make a certain number of “peremptory challenges” to potential jury members. As a general rule, these challenges permit a lawyer to remove a juror for any reason they want. In Batson v. Kentucky, however, the Supreme Court held that peremptory challenges may not be used to engage in “purposeful racial discrimination.”
As a practical matter, however, Batson challenges are extraordinarily difficult to win. That’s because Batson permits prosecutors to “articulate a neutral explanation” for why they struck a juror of color when they are accused of engaging in race discrimination, and then leaves the question of whether the prosecutor had racist intent largely up to the trial judge. In nearly every case, the prosecutor will be able to come up with some reason other than race that could ostensibly justify removing a black juror — they claim that one juror in this case, for example, was removed largely because she had a son who was convicted of a felony; another was removed, they claim, in part because she “appeared confused, was very easily swayed, irrational, bewildered, and incoherent.” Unless the trial judge is a mind-reader, it will be difficult for them to assess what the real reason for removing the juror may be.
Which is why the documents uncovered by Foster’s legal team — a team that includes the Southern Center for Human Rights’ Stephen Bright, a giant of the capital defense bar — are so significant. They paint the prosecution in this case as the Keystone Cops of race discrimination, meticulously documenting the one thing that would allow Foster to prove that he actually was a victim of such discrimination. The fact that these records even exist is either a stunning act of incompetence or, more likely, a testament to just how little prosecutors fear a Batson challenge.
Notably, the Georgia court system refused to grant Foster relief even after they were presented by the documents obtained by Bright and the rest of Foster’s legal team.
The Supreme Court rarely takes cases such as this one, where the primary dispute is over the facts of a case and not some abstract legal principle. The fact that they chose to take this case is probably a good sign for Foster, as it suggests that at least four justices were so bothered by the evidence in this case that they were willing to depart from the Court’s normal procedures.
It takes only four justices to agree to hear a case, however, and five justices to rule in Foster’s favor. If Foster cannot find a fifth vote on this Court, a decision against him could destroy what remains of the prohibition on race discrimination in jury selection. After all, if a set of documents documenting the prosecutor’s efforts to identify black members of the jury pool — combined with notes such as “if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining” — aren’t enough to prove race discrimination, then it is unlikely that anything will suffice.