Monday, May 23, 2016

"Two peremptory strikes on the basis of race are two more than the Constitution allows." ---Chief Justice Roberts, in Foster v. Chatman

Eddie Hood grew up in the Jim Crow South. In his hometown, Black residents had to enter the local cafĂ© by the back door, and were relegated to the balcony in the theater. His younger brother was one of the Black students whose entrance to the University of Alabama was blocked by Governor George Wallace in 1963. And so Mr. Hood was not surprised decades later when he was stricken from a jury pool in a capital case in Georgia. As he told his wife when he got home: "More than likely, they're not going to want too many of 'us' on the jury."

Timothy Tyrone Foster was an intellectually limited 18-year-old in 1986 when he was charged with capital murder after confessing to killing a retired schoolteacher in Georgia. Timothy was Black; the schoolteacher was white. During jury selection, the trial judge allowed the prosecutor to strike all four Black prospective jurors, including Eddie Hood, over defense counsel's Batson objections. The resulting all-white jury convicted Timothy, and sentenced him to death after the prosecutor urged the jurors to send a message "to deter other people out there in the projects."

Nearly 20 years and many court proceedings later, Mr. Foster's postconviction team finally gained access to the prosecution's jury-selection notes through a state open-records request. These notes showed that (1) the prosecution had highlighted all Black jurors on its list of prospective jurors; (2) the prosecution had circled the race on Black jurors' questionnaires (see above image of Mr. Hood's questionnaire); (3) the prosecution had identified several Black jurors in its notes as "B#1," "B#2," and "B#3"; and (4) the prosecution had ranked the Black jurors against each other just in case "it comes down to having to pick one of the black jurors."

Despite this evidence that the strikes were racially motivated, Mr. Foster's Batson claims were rejected by the Georgia courts. The Supreme Court granted certiorari, and REVERSED, 7-1 (Justice Thomas dissented).

Writing for the majority, Chief Justice Roberts held that the record left the Court with a "firm conviction" that the prosecutor's strikes were "motivated in substantial part by discriminatory intent." The Court flyspecked the State's claimed race-neutral explanations, finding them to have "no grounding in fact," to be "false," "an intricate story," "difficult to credit," "implausible," "fantastic," and "not true."

Chastising the State for acting "downright indignant" in response to the Batson claim, the Court concluded that "[t]he focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury."

Lessons learned from Foster:

In considering Batson error, "all of the circumstances that bear upon the issue of racial animosity must be consulted." Thus, even though the provenance of some of the prosecution's notes was uncertain, the Court rejected the State's invitation "to blind ourselves to their existence."

A prosecutor's race-neutral explanations might be undermined when:
  1. White jurors with similar traits are not stricken.
  2. A response said to be strike-worthy is not uncommon among jurors.
  3. The question that elicited a response said to be strike-worthy was badly worded.
  4. The prosecutor's reasons for the strike shift over time.
  5. The transcript of voir dire belies the prosecutor's claims about how jurors responded to certain questions.
  6. The prosecutor's claimed reasons are simply unreasonable or improbable.
  7. The prosecution file contains smoking guns of discriminatory intent.

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