It is tough to imagine a more egregious case of jury discrimination than Foster v. Chatman. The prosecutor’s office in this Georgia death penalty case struck every single black member of the jury pool. They made four copies of a list of prospective jurors, highlighting every African-American on the list in green next to a legend indicating that such highlighting “represents Blacks.” An investigator working for the prosecution advised prosecutors that “if it comes down to having to pick one of the black jurors,” then one in particular “might be okay.” A note on one of the prosecution’s internal documents suggested that the office did not want a particular juror to be seated because of the juror’s membership in a “Black Church.”
And yet, even with all of this evidence and more at his fingertips, Justice Clarence Thomas said that the Court should not rule that unconstitutional jury discrimination took place in this case.
Fortunately for Timothy Foster, the death row inmate who was tried under these conditions, Thomas was alone in this view. All seven other members of the Court agreed that Foster’s constitutional rights were violated (although Alito did so in a separate opinion that only he joined).
Though Mr. Foster prevailed, the case is a window into why individuals alleging that their convictions were tainted by jury discrimination rarely succeed in court. In many jurisdictions, including Georgia, attorneys in criminal cases are permitted to strike jurors from a jury pool using “peremptory challenges.” Normally, these challenges can be exercised for any reason. Under the Supreme Court’s decision in Batson v. Kentucky, however, such challenges may not be used to engage in “purposeful racial discrimination.”
Batson’s force is often more theoretical than actual, however, because it sets up a standard that makes it very difficult for someone convicted of a crime to prove that jury discrimination occurred. If a defendant alleges that a juror was removed because of race, under Batson, a prosecutor may then “articulate a neutral explanation” for why the juror was struck. Once that happens, the trial judge rules on which side they believe, and higher courts are not supposed to disturb this determination except in “exceptional circumstances.”
The exceptional circumstances in Foster’s case is that much of the evidence of race discrimination at issue in the case was unearthed many years after Foster’s trial and conviction. Foster was tried in 1987. Years after that trial, Foster’s attorneys obtained (via the state’s open records laws) documents revealing the prosecution’s internal deliberations — including much of the evidence described above suggesting intentionally race discrimination. They then sought to have Foster’s claim that he was a victim of race discrimination reopened based on this newly obtained evidence.
In his dissenting opinion, Justice Thomas appears astounded that his colleagues could care that new evidence shows that Foster’s constitutional rights were violated. “The notion that this ‘newly discovered evidence’ could warrant relitigation of a Batson claim is flabbergasting,” Thomas writes. “Time and again,” he adds, “we have said that the credibility of the attorney is best judged by the trial court and can be overturned only if it is clearly erroneous.”
Whatever the wisdom of that rule in ordinary cases, however, this is not an ordinary case. The trial judge in this case could not possibly have known what was in the records obtained by Foster’s legal team many years later. And yet, Thomas calls for extraordinary deference to that judge even after it becomes obvious that the judge was acting off of imperfect information.
Indeed, Thomas appears much more concerned with the extra work Foster is going to create for himself and his fellow justices than with the fact that a man was going to be executed unconstitutionally. “The Court today invites state prisoners to go searching for new ‘evidence’ by demanding the files of the prosecutors who long ago convicted them,” Thomas complains, adding that “if those prisoners succeed, then apparently this Court’s doors are open to conduct the credibility determination anew.”
Thomas, in other words, would take the already very high bar individuals must clear in order to prevail in a Batson claim and raise it to the point of near-impossibility. So long as a prosecutor can convince a trial judge that their decision to strike a particular juror wasn’t rooted in race, that judge’s decision would effectively become unreviewable — even if overwhelming new evidence later proved that the prosecutor violated the Constitution.