Supreme Court Takes Up Jury Selection Case: Is The Process Racist And Discriminatory?

The Supreme Court will hear a case Monday that will examine whether or not the jury selection process in inherently racist and discriminatory towards black jurors, NPR is reporting.

In Foster v. Chatman, the Supreme Court will decide whether or not prosecutors in Georgia illegally racially discriminated against black jurors in the case of Timothy Foster, a then-18-year-old black man who had been charged with killing an elderly white woman in 1986. An all-white jury convicted Foster and sentenced him to death. He’s been sitting on Georgia’s Death Row since then.

At issue in this particular Supreme Court case is what is known in the legal profession as “peremptory strikes.” Here’s how it works: during the jury selection process in any trial, both the defense and the prosecution will attempt to disqualify jurors who may not be able to be partial and unbiased, or otherwise unfit for jury duty. If, for example, a potential juror steadfastly opposes the death penalty, a prosecutor may deem that juror unqualified to serve on a jury in a capital case, or if a potential juror reveals during questioning that he or she is racist, a defense attorney may deem that juror unqualified to serve on a jury where the defendant is of a different race than the juror.

Attorneys are also given a limited number of peremptory strikes when seating a jury. In a peremptory strike, an attorney can excuse a potential juror without having to give a reason. However, the Supreme Court ruled in 1986, in the case of Batson v. Kentucky, that attorneys couldn’t use a peremptory strike against a juror based on race alone. If a defense attorney felt that a prosecutor were targeting jurors of a certain race (or sex) for peremptory strikes, the prosecutor would have to demonstrate non-race-based reasons for excluding those jurors.

In Foster’s case, the reasons the prosecution gave for excluding black jurors are described by Huffington Post writer Cristian Farias as “bulls**t.” One black juror belonged to a church that’s against the death penalty. Another black juror “looked bored.” Another failed to make eye contact.

Even more damning for the prosecution in the Foster case was the prosecutors’ notes about the potential jury pool, obtained by Foster’s defense. In the notes, which you can see below, the names of potential black jurors were highlighted and marked with a letter “B.”

Prosecutor's notes in Timothy Foster's jury selection. The names of black jurors were highlighted with a letter "B" next to them. [Image via SCOTUS Blog] Prosecutor’s notes in Timothy Foster’s jury selection. The names of black jurors were highlighted with a letter “B” next to them. [Image via SCOTUS Blog]Defense attorney Stephen Bright explains that black jurors were also ranked, in order of preference, should the judge require the prosecution to accept any black jurors.

“They were referred to by B1, B2, B3. There were comparisons made among the black jurors that, if we have to take a black, maybe Ms. Hardge will be OK, or maybe Ms. Garrett will be OK. They didn’t, of course, take either one of those.”

The practice of racial discrimination in jury selection is not limited to the Foster case. In a friend-of-the-court brief filed on behalf of Foster, multiple prosecutors — described by NPR as “Republican and Democrat, conservative and liberal” — note that the practice is widespread.

“Numerous studies demonstrate that prosecutors use peremptory strikes to remove black jurors at significantly higher rates than white jurors.”

Foster’s attorneys hope that, if the Supreme Court does, in fact, decide that the jury selection process is racist and discriminatory (as it was applied in his case), he will be given a new trial.

[Image via Shutterstock / bikeriderlondon]