The most striking thing about Foster v. Chatman isn’t the very strong evidence of race discrimination that brought this death penalty case to the Supreme Court — it is the almost comic levels of incompetence by the prosecution that enabled this race discrimination to be discovered.
Foster involves Timothy Tyrone Foster, an inmate sentenced to die by an all-white Georgia jury. Prosecutors struck all four black members of the jury pool from this jury. Years later, Foster’s attorneys uncovered internal notes made by the prosecution team which indicate that these jurors were struck because they are black.
In Georgia, lawyers in criminal cases are permitted to strike up to a certain number of jurors using “peremptory challenges,” a common practice used in many jurisdictions to allow attorneys to remove jurors they would rather not have hear their client’s case. As a general rule, these peremptory challenges may be exercised for any reason a lawyer wants. A juror may be struck because the lawyer doesn’t like the juror’s haircut, or because the juror is a hockey fan, or because the juror’s third cousin once was rude to a cop. Under the Supreme Court’s decision in Batson v. Kentucky, however, peremptory challenges may not be used to engage in “purposeful racial discrimination.”
As a practical matter, however, Batson is often a paper tiger. When a defendant claims that a juror was removed because of the juror’s race, Batson allows prosecutors to “articulate a neutral explanation” for why they struck that juror. Prosecutors will typically be able to come up with some reason other than race that explains their decision to remove a juror, and it will be very difficult for a judge to determine that the prosecutor is telling the truth.
What makes Foster extraordinary, however, is that the prosecutor does not simply appear to have struck multiple jurors because of their race, the prosecution team also produced a significant written record outlining their strategy to keep African Americans off the jury. Among other things, the prosecution marked each black juror in green highlighter on multiple copies of the jury sheet. It circled the word “BLACK” on the juror questionnaires on five black potential jurors. It ranked the potential black jurors in order of most desirable to least desirable in case “it comes down to having to pick one of the black jurors.” And it offered explanations for some of its decisions to strike black jurors that are simply false.
The state, for what it’s worth, claims that these notes were actually an effort to comply with Batson. “Foster’s new evidence,” they write in their brief, “is perfectly consistent with conscientious, non-discriminatory prosecutors preparing to rebut a defense challenge to the array of the jury and a pretrial Batson challenge to any black prospective juror that may be peremptorily struck.” In other words, the prosecution flagged black jurors because they anticipated complaints if they tried to strike one of them, and wanted to make sure that they had all their ducks in a row.
This explanation, however, is hard to square with the overall record in the case. Among other things, Foster’s lawyers explain in a reply brief, the state “argues for the first time” now that the case is before the Supreme Court “that the prosecution’s race-coded lists and notes singling out the black prospective jurors were made in response to” a potential Batson challenge. It’s also hard to understand why the prosecution would make notes about what to do “if we had to pick a black juror” unless it was actively trying to prevent that outcome.
Foster’s attorneys also point to inconsistencies between the prosecution’s explanation for removing jurors and the record in the case. One juror, for example, was allegedly struck because her age was “so close” to Foster’s, but this juror was nearly twice Foster’s age. Another juror was allegedly struck for being a social worker, but she is not a social worker. The state also claims that one juror was struck because her cousin had a drug arrest, even though the prosecution previously acknowledged that they did not know about this arrest when the struck the juror.
If any case could lead the conservative Roberts Court to rule in favor of a death row inmate alleging race discrimination, in other words, this is that case. Yet the fact that Foster has such strong evidence on his side also means that a great deal is at stake if he loses. After all, if Mr. Foster cannot prevail given the evidence his attorneys have presented, it’s unclear that anyone can ever prevail in a jury discrimination case.