Supreme Court case offers glimpse at role of race in jury selection

News of the murder traveled like a rifle shot across Floyd County in northwest Georgia. The year was 1986. The defendant, an 18-year-old African American, was facing a possible death sentence. 

Before the high-profile trial even began, defense lawyers filed a request with the judge to prevent prosecutors from using a pretrial tactic to exclude African Americans from serving on the jury. Of the 41 citizens considered for the jury, four were black.

Yet when prosecutors assembled a five-name list of prospective jurors they most definitely wanted to exclude from the jury, all four African Americans were on it.

Now, lawyers for the defendant are still arguing that prosecutors engaged in illegal racial discrimination in a trial that sent a black teenager, Timothy Foster, to death row.

Four different courts in Georgia, including the state supreme court, have examined the prosecutors’ actions and found them acceptable.

On Monday, the case arrives at the United States Supreme Court. The justices will examine whether the jury selection process was so tainted by racial prejudice that Mr. Foster must be given a new trial.

The case arrives at a time of heightened racial tension across the US following a string of police shootings and other fatal confrontations involving African Americans. It also arrives at a time of extreme distrust of the criminal justice system by minorities and increasing concern about the fairness of the death penalty.

At issue in the case is whether the use of so-called peremptory challenges during jury selection might be facilitating an insidious form of discrimination in criminal trials.

“The evidence of racial motive by the prosecution in this racially-charged capital case is extensive and undeniable,” writes Stephen Bright the lawyer for Mr. Foster, in his brief to the Supreme Court.

Near the conclusion of the trial, Mr. Bright noted, the prosecutor urged the jury to return a verdict that would “deter other people out there in the projects” from committing similar crimes. That was a message tailored to resonate with an all-white jury, Bright said.

But the Georgia deputy attorney general defending the jury selection process writes in her brief to the court that the decision to excuse the African-American jurors was unrelated to race.

The case is being closely watched because it could clarify how judges are to enforce a prohibition on racial discrimination in jury selection while also preserving the free-wheeling nature of peremptory challenges.

The problem, according to critics, is that the laudable goal of no racial discrimination in jury selection can be easily bypassed in practice.

How widespread is the problem?

The US has a long history of excluding African Americans from jury service. In an 1880 case, the Supreme Court struck down a West Virginia law that limited jury service to whites. But racist lawyers simply switched to more nuanced methods of excluding African Americans from juries, including peremptory challenges. Civil rights advocates say these abuses continue today.

A 2012 study of jury selection in 173 capital trials in North Carolina found that prosecutors struck nearly 53 percent of potential jurors who were black, but only 26 percent of all other potential jurors. It showed that African Americans were more than twice as likely than whites to be removed by prosecutors during jury selection. 

In a 2010 study of Southern states, the Equal Justice Initiative concluded that racial discrimination in jury selection was still “widespread.”

In Alabama’s Houston County, 8 of 10 African Americans eligible to serve on a jury in death penalty cases were excluded by prosecutors, researchers found. That meant that half of the capital cases in that county were heard by all-white juries, and the rest had only a single African American on the panel – in a county that is 27 percent African-American, according to the study.

Researchers in Louisiana have compiled similar statistics suggesting significant discrimination in the exclusion of African Americans from juries in that state.

The persistent question in such cases is whether African Americans are being systematically excluded from jury service because of their race, or whether other legitimate factors are leading to their consistent exclusion.

During the phase of the process when the defense and the prosecution begin to pick the individuals who will actually hear the case, both are permitted a set number of peremptory challenges. This allows them an automatic veto over any individual juror – and they are not required to provide a reason for it.

Peremptory challenges are nearly as old as the jury system. They are meant to provide an additional safeguard to help select the most fair and impartial jury possible within an adversarial justice system.

By the end of the jury selection process, the resulting panel should represent a kind of middle ground of impartiality with strong supporters for prosecution or defense excluded from the panel. Legal experts say the process is designed to produce a jury that is more inclined to deliberate in good faith and reach a unanimous verdict.

But in 1986, the Supreme Court ruled in Batson v. Kentucky that peremptory challenges could not be used to exclude someone from the jury based on race.

The court said racial discrimination would violate a defendant’s constitutional right to a fair trial and to equal treatment. In cases of alleged discrimination in jury selection, the accused discriminator must provide a justification unrelated to race or ethnicity.

Although he voted with the majority in the Batson case, Justice Thurgood Marshall doubted that the court’s justification test would end discrimination in jury selection. Instead, said the court should ban the use of peremptory challenges.

Race and the Foster case

The Batson decision was handed down on April 30, 1986. Jury selection in the Floyd County trial of Timothy Foster began a year later in April 1987.

Foster was charged with burglary and murder in a disturbing crime against a retired elementary school teacher, Queen Madge White, in August 1986. Foster was arrested a month later after his live-in girlfriend turned him in to the police. Foster and other members of his family were found to be in possession of various items that had been taken from White’s home.

According to a transcript of the jury selection in Foster's case, prosecutors used nine of their 10 peremptory challenges to excuse all four African Americans in the jury pool and five others. Foster’s lawyer used all 20 of his peremptory challenges in his own attempt to shape the panel.

During and after the trial, defense lawyers filed – and lost – repeated challenges complaining about the exclusion of African Americans from the panel. As part of the fight, they used a state freedom of information law to obtain copies of the notes the prosecutors used to help select the Foster jury.

Prosecutors used a green highlighter on a list of potential jurors to readily identify the names of those who were black. They also marked those names with a letter “B,” and circled the world “BLACK” on jurors’ completed questionnaires. The prosecutors also appear to have ranked the prospective African American jurors against each other. Three were identified on a list as “B#1,” “B#2,” and “B#3.”

State officials dispute the allegation that the notes provide evidence of purposeful discrimination. They say the prosecutors knew that the defense lawyers were planning to litigate the jury selection issue 

Under these circumstances, the state argues, a prudent prosecutor would need to know which potential jurors might trigger extensive litigation.

Others reject this explanation.

A group of former prosecutors, including former Los Angeles County District Attorney Gil Garcetti and author Scott Turow, argue in a friend of the court brief that “if this Court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless.”

The case is Foster v. Chatman (14-8349)