Jury selection prep work for the Georgia prosecutors included singling out all the black potential jurors and ranking them against one another. If there was no way to keep them all off the jury, the prosecutors’ notes indicated, there was one who might be “okay.”
But certainly not “B#1” — he was at the top of their list labeled “Definite NOs.”
As it turned out, there were not any “B”s — the lawyers’ shorthand for African Americans — on the jury in Rome, Ga., that in 1987 convicted black teenager Timothy Tyrone Foster of the brutal murder of an elderly white woman and sentenced him to death.
The rare discovery of the prosecutors’ racially coded notes is at the center of a coming Supreme Court case requesting a new trial for Foster. But the bigger issue for the justices, when they hear the case Nov. 2, is whether allowing lawyers to peremptorily dismiss potential jurors has simply become a way to discriminate.
It has been almost three decades since the Supreme Court in a case called Batson v. Kentucky ruled that it was unconstitutional to strike jurors because of their race.
But almost no one thinks the problem has been eliminated. Prosecutors and defense attorneys need only find a benign reason for dismissal: a failure to maintain eye contact and an age too close to the defendant’s were among those accepted in the Georgia case.
Studies and experience have concluded that only the most incompetent lawyer will fail to come up with a justification that a judge can accept.
“Among those who laud its mission, it seems that the only people not disappointed in Batson are those who never expected it to work in the first place,” wrote Michigan State University law professors Catherine M. Grosso and Barbara O’Brien in a 2012 study of racial bias in jury selection in North Carolina.
If anything, lawyers might have more reason to rely on racial stereotypes today in choosing a jury than they did when Batson was decided.
The national attention that has accompanied police shootings of black men and racially motivated killings have widened the gulf between how whites and blacks view law enforcement.
A 2014 Washington Post-ABC News poll revealed that blacks and whites live in different worlds when it comes to perceptions of justice. Only 1 in 10 African Americans said blacks and other minorities receive equal treatment with whites in the criminal justice system. In contrast, 6 in 10 white Americans had confidence that police treat the races equally.
Numerous studies have shown that prosecutors use their peremptory challenges to strike black potential jurors at a much higher rate than whites. And the opposite is true of criminal defense lawyers.
In the North Carolina study, prosecutors used 60 percent of these challenges to strike black jurors, who constituted only 32 percent of potential jury members. Defense attorneys used 87 percent of their strikes against white jurors, who made up 68 percent of the jury pool.
“Race discrimination in juror selection cannot be condoned,” said a group of federal and state prosecutors, including the District’s former U.S. attorney Joseph diGenova and former Prince George’s County state’s attorney Glenn F. Ivey, in an amicus brief filed with the Supreme Court on behalf of Foster. “Indeed, this court has long recognized that such discrimination causes serious and widespread harm: to the defendant, whose constitutional rights are violated; to the juror, who is excluded from the judicial process; and to our justice system, which is undermined by such inequality.”
Lawyers selecting a jury can strike potential jurors after questioning them for a variety of “cause” reasons, such as whether they know one of the parties to the case or because they acknowledge they could not be fair.
But both sides also get a number of peremptory challenges, meaning they can dismiss a juror for no particular reason. “I’ve tried a number of cases where you’re just sure the person is not going to be objective,” said E.G. “Gerry” Morris of Austin, president of the National Association of Criminal Defense Lawyers. “There are some trials when I don’t use all of my peremptories, but more often I wish I had more.”
In the 1986 Batson case, the Supreme Court ruled that the strikes could not be used simply to keep people off juries because of their race. (Later, the court said the same was true for gender.) If challenged, a lawyer would have to justify the dismissal to the judge by providing a nonracial reason.
But there were doubts from the beginning. Justice Thurgood Marshall, the Supreme Court’s first African American justice, welcomed the Batson ruling as historic. But in a separate concurrence, he also questioned whether it was workable.
“The decision today will not end the racial discrimination that peremptories inject into the jury-selection process,” Marshall wrote. “That goal can be accomplished only by eliminating peremptory challenges entirely.”
There have been similar calls since. Justice Stephen G. Breyer in 2005 questioned whether peremptories could be carried out in a way that eliminated racial considerations.
But lawyers are not eager to see the practice end.
“Peremptories are vital to prosecutors and defense attorneys alike because both need to be confident that a particular juror is someone they can talk to, someone that they can persuade,” said Washington lawyer Jeffrey T. Green, who often represents defense lawyers’ interests before the Supreme Court.
But like others, lawyers can rely on racial stereotypes, Green acknowledges. “You can see how improper bias could creep into such a delicate and human calculus and why it’s important to protect against that.”
Foster’s lawyer at the Supreme Court, Stephen B. Bright of the Southern Center for Human Rights in Atlanta, said his client’s case is a textbook example.
Foster, then 18, was arrested for the murder of Queen Madge White, a 79-year-old widow and former elementary school teacher. According to prosecutors, “Foster broke into White’s home. He broke her jaw, coated her face with talcum powder, sexually molested her with a salad dressing bottle, and strangled her to death, all before taking items from her home.”
Turned in by his girlfriend, Foster acknowledged the crime. But there were questions about his limited intellectual capacity and whether he acted alone.
When the case went to trial, the Batson decision was still relatively new. Foster’s attorneys said they would raise legal challenges under the Batson precedent if the prosecution tried to eliminate the five blacks in the jury pool.
One was dismissed for cause, and prosecutors eliminated the other four with peremptory challenges, offering a variety of nonracial reasons accepted by the presiding judge.
Prosecutor Stephen Lanier then told the all-white jury it should convict Foster and sentence him to death “to deter other people out there in the projects,” where 90 percent of the families were black.
Georgia appellate courts upheld the conviction and sentence.
But in 2006, Foster’s lawyers obtained the prosecutors’ jury selection notes under the Georgia Open Records Act. They contained evidence of racial motive, Bright told the Supreme Court, that is “extensive and undeniable.”
The names of the black potential jurors were “marked with a ‘B’ ” and highlighted in green. Their race on juror questionnaires was circled. All were at the very top of a list labeled “Definite NOs,” and each was compared with the others in case, according to the notes, “it comes down to having to pick one of the black jurors.”
Marilyn Garrett, who is African American, was rejected partly because her age was so close to the defendant’s, Lanier told the judge. Garrett was 34, and Foster was 19. The prosecution accepted eight white prospective jurors who were 35 and younger, including a man who was two years older than Foster.
But even with the notes, the Georgia courts said the prosecutors had offered reasons that should not be second guessed.
In his brief to the Supreme Court, Georgia Attorney General Samuel S. Olens said the state courts got it right.
“Foster’s attempted comparisons of white prospective jurors who served on the jury with the black prospective jurors ignore the multi-faceted nature of jury selection,” the state’s brief says. “Jurors possess multiple strengths and weaknesses from the perspective of the prosecution. It is the sum of the individual that the state assessed.”
Olens’ brief says the prosecutors were concerned with the race of the prospective jurors only because Foster’s lawyer had warned he would raise objections if any black potential jurors were dismissed.
“Reviewed in context, the new documents should be seen for what they are — notes preparing for a jury array challenge and a preordained Batson challenge to any and all peremptory challenges to black prospective jurors,” the brief says. “The new evidence does not show discriminatory intent; and Foster — who declined to obtain any testimony from the prosecutors regarding the notes — can only speculate that it does.”
That will be for the Supreme Court to decide. In 2008, the court in an opinion by Justice Samuel A. Alito Jr. ruled 7 to 2 that Louisiana prosecutors had erred in striking African American jurors because the reasons given for the disqualifications applied just as well to white jurors who were accepted.
The former prosecutors supporting Foster’s bid for a retrial said this case should be even easier for the justices.
“If the court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless,” they wrote.
The case is Foster v. Chatman.