The process of eliminating black jurors from a trial has been around for a while, even though it was declared unconstitutional by the Supreme Court. It is a commonly used tool in some parts of the country where the prosecutor’s case is weak, the defendant is black and the victim is white – or to cover some misconduct by Law Enforcement. It typically assures conviction – even when obvious exculpatory evidence exists. Once again – this deception is headed to the Supreme Court, where by the fact of it’s conservative majority – there is little likely to be done about it. I mean – it is hard to believe based on past rulings that Uncle Tommie Clarence would object to a black person being convicted by a jury wearing white robes and hoods.
A curious thing happened at the trial of Timothy Tyrone Foster, a young black man accused of killing an elderly white woman: every black prospective juror was dismissed. He was convicted, and sentenced to death, by an all-white jury.
Even more curious: there were 42 prospective jurors that morning, five of whom were black. All dismissed, four of whom by “peremptory challenge,” in which theprosecutor strikes a juror at his or her discretion. In Georgia, where Foster’s trial took place, prosecutors have ten such options.
Peremptory challenges were entirely unreviewable for most of American history. That was their function: in addition to dismissals with reasons, they were meant to give prosecutors and defense attorneys (in Georgia, defense attorneys get twenty such challenges) leeway to strike potentially problematic jurors without explanation.
That changed somewhat in 1986, when the Supreme Court decided Batson v. Kentucky. In Batson, the Court held that using peremptory challenges to strike jurors on the basis of race was unconstitutional.
Foster’s trial, though, took place after Batson. How is that possible? BecauseBatson has proven to be almost worthless in practice. All a prosecutor must do is provide some race-neutral reason for striking jurors, and that is extremely easy to do. Maybe the juror didn’t make eye contact. Maybe she was female. Maybe he looked bored or inattentive—as most of us are at the end of hours of jury duty.
Any of these reasons will do, and so, in Foster’s case and countless others, winning a “Batson challenge” is basically impossible.
Except Foster’s case has turned out to be different. During the lengthy appeals process (nearly thirty years and counting), the prosecutor’s notes were made public. And they are laughable and tragic at the same time. Black prospective jurors are annotated as B#1, B#2, et cetera. Weighing the different options, the prosecutor noted that one has “the most potential to choose from out of the four remaining blacks.” And so on.
And then there were the absurd pretexts the prosecutor provided to satisfyBatson. First, he listed over thirty different reasons, basically throwing everything against the wall to see what would stick. He said three didn’t make enough eye contact. He said another was a social worker, which in fact she was not. He said one was close in age to the 18-year-old defendant; she was 34.
All this make it abundantly clear that race was the predominant factor in striking these jurors, notwithstanding the pretexts given for their dismissals.
And that’s why Foster’s case is now at the Supreme Court, which will have an opportunity to update Batson, and perhaps give it some teeth. The Court will also, of course, determine the fate of Foster, who is developmentally disabled and who has now spent nearly thirty years on death row.
“Batson has failed miserably to prevent race discrimination,” says Stephen Bright, who is Foster’s lawyer, a professor at Yale Law School, president of the Southern Center for Human Rights, and one of the leading advocates for criminal justice reform, including abolition of the death penalty. Bright has been down this road before, having won two Supreme Court cases on race discrimination and jury selection. And he says that Foster’s case is not unusual in the least.
“What went on at trial was typical,” he told the Daily Beast. “What’s unusual is we know what’s in the prosecutor’s files. These notes that show not just a consciousness of race but an obsession with race.”
Batson has failed to prevent discrimination, says Bright, for at least three reasons.
First, “every prosecutor has a handy-dandy list of race-neutral reasons that they give. They even distribute reasons in advance. Some state training programs even distribute a list called ‘Articulating Juror Negatives.’”
That’s right, all prosecutors have to do is read from a prewritten list of reasons, and they’ll prevail. “They just say, ‘take a lot of notes when you strike a black juror.’”