Should the Georgia courts have recognized race discrimination under Batson v. Kentucky, which held that race cannot be used as a basis for striking jurors, where the prosecution used peremptory challenges to strike each potential black juror, resulting in an all-white jury in the petitioner’s death penalty case?
This case presents the Supreme Court with an opportunity to determine whether the Georgia courts erred in determining that the prosecution’s peremptory challenges were not based on race discrimination. Petitioner Timothy Tyrone Foster contends that he was denied due process and the right to an impartial jury, because the prosecution used peremptory challenges to strike black jurors on the basis of race. Foster argues that the prosecution’s jury selection notes demonstrate intent to exclude black jurors from the jury and that the prosecution’s purported reasons for striking the black prospective jurors are insufficient in light of the corresponding notes. Respondent Bruce Chatman counters that the prosecution established sufficient justification for striking each prospective black juror and that the notes were prepared in anticipation of a Batson challenge. The Supreme Court’s decision in this case will provide greater clarity as to what constitutes a violation under Batson v. Kentucky.
Questions as Framed for the Court by the Parties
Did the Georgia courts err in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case?
In 1986, Timothy Tyrone Foster was arrested for the murder of 79-year-old Queen Madge White in Rome, Georgia. Following the jury trial, Foster was convicted of malice murder and burglary and sentenced to the death penalty.
Prior to the commencement of trial, Foster filed a motion to prevent the prosecution from striking prospective jurors based on race. After the completion of voir dire, there were four prospective black jurors on the qualified panel. The prosecution used four peremptory challenges, which allow the prosecutor or defense attorney to strike a limited number of prospective jurors without providing any explanation, to strike each of the four black jurors, resulting in an all white jury. Foster then challenged the prosecution’s use of peremptory challenges as discriminatory. The trial court determined that Foster’s Batson challenge established a prima facie showing of discrimination, and the court directed the prosecution to provide an explanation for each of its strikes against the black jurors. The prosecution provided justifications for its decision to strike each of the black jurors and the trial court determined that the prosecution’s explanations were sufficiently related to the case and detailed reasonable grounds for peremptory strikes. At the close of trial, Foster moved for a new trial, objecting once more to the prosecution’s use of peremptory challenges to strike black jurors and renewed his request to view the prosecution’s jury selection notes. The trial court denied both motions.
Foster appealed his conviction and death sentence to the Supreme Court of Georgia, arguing that the trial court erred in denying his Batson challenge and his request to view the prosecution’s jury selection notes. The Georgia Supreme Court held that the prosecution provided sufficiently specific explanations for striking the black jurors and that the trial court did not err in denying Foster access to the prosecution’s jury selection notes.
Subsequently, Foster sought a writ of habeas corpus in the Butts County Superior Court on the basis that he was mentally retarded. The Superior Court remanded the case for a ruling on the issue, and following the trial, the jury determined that Foster did not qualify as mentally retarded. After the habeas proceedings, Foster obtained access to the prosecution’s jury selection notes through the Georgia Open Records Act. The prosecution’s file revealed that the prosecution had highlighted the names of each of the four prospective black jurors in green and written a letter “B” next to each name. In addition, the prosecution had circled the word “black” next to the race question on the jury questionnaire forms. The prosecution further marked three of the jurors as “B#1,” “B#2,” and “B#3.” Finally, the notes contained additional information about the selection of each prospective black juror.
In light of the new information that Foster obtained from the prosecution’s notes, Foster petitioned the Butts County Superior Court for habeas corpus relief and his petition was denied. On appeal from this decision, the Supreme Court of Georgia denied Foster’s request for relief. In 2015, Foster filed a petition for certiorari to the United States Supreme Court, which the Court granted.
In this case, the Supreme Court will determine whether the Georgia courts erred in not finding race discrimination in accordance with Batson v. Kentucky, which held that prosecutors cannot use peremptory strikes to exclude jurors based solely on race. The Court has established a three-step process for analyzing race discrimination claims under Batson. First, the defendant must make a prima facie showing of discrimination. Second, the prosecution must provide race-neutral explanations for the contested peremptory strikes. Third, the Court must determine whether the defendant established that the prosecutor purposefully discriminated against the potential jurors. This case is focused on step three: whether the defendant established purposeful discrimination.
DID THE PROSECUTION PURPOSEFULLY DISCRIMINATE AGAINST BLACK PROSPECTIVE JURORS?
VENIRE LISTS & NOTES
Foster argues that the prosecution’s venire lists and notes, combined with the complete exclusion of black jurors, indicate that the prosecution purposefully discriminated against prospective black jurors. Foster notes that the names of black prospective jurors were marked with a “B” and highlighted in green on four venire lists. Foster contends that these lists circulated the prosecutor’s office, indicating that the office was comfortable with labeling jurors by race. Additionally, the race of the black prospective jurors was circled on the prosecution’s juror questionnaires. There was also a separate list containing notes on black prospective jurors, which included a note that one black juror “[m]ight be the [b]est one to put on the [j]ury.” Foster argues that notes made by the prosecutor’s investigator, which state that “[i]f it comes down to having to pick one of the black jurors, [she] might be okay,” are illustrative of the prosecutor’s purposeful discrimination. Finally, Foster notes that the five black prospective jurors were the first five names on a “Definite NOs” list, which meant that the prosecution would strike them. Foster concludes that the venire lists and notes illustrate that the prosecution intended to strike every black prospective juror and thus demonstrates that the prosecution purposefully discriminated against black prospective jurors.
Chatman counters that the lists and notes were prepared in anticipation of a Batson challenge. , Chatman notes that four months prior to trial, Foster filed a “Motion to Preclude the Prosecution from Using Its Peremptory Challenges to Exclude Blacks.” . This motion alerted the prosecution that if the prosecution peremptorily struck any black prospective juror, it would need to explain its reasoning; thus, the prosecution had to maintain detailed notes about the black prospective jurors. Chatman notes that the prosecution lacked guidance from the Georgia courts about implementing the newly-decided Batson. For example, the prosecution was unsure whether to provide race-neutral explanations for all black prospective jurors, or only the black prospective jurors challenged by the defense. Chatman argues that these notes illustrate the prosecution’s attempt to implement Batson’s new requirements in anticipation of a probable Batson challenge. He contends that this preparation provides a sufficient non-discriminatory reason to highlight black prospective jurors. Chatman also criticizes the probative value of these notes, because no one knows who wrote, authorized, or relied upon the notes. He contends that Foster refused to call any prosecutors to the stand, so Foster is speculating about the meaning, authors, and significance of the notes. Chatman also explains that there is unrebutted testimony that the prosecutors did not highlight, instruct anyone to highlight, or rely upon the highlighted names of black prospective jurors on the venire sheets.
Foster contends that the prosecution’s purported reasons for peremptorily striking black potential jurors lack credibility. Foster accuses the prosecution of exaggerating facts to discredit black prospective jurors and contradicting its non-discriminatory reasons for peremptorily striking black jurors. Foster also contends that the prosecution failed to ask questions in voir dire about the justifications they later presented for the strikes, indicating that the prosecution’s non-discriminatory justifications lack credibility. To support this argument, Foster compares the treatment of black and white jurors and focuses on two black jurors—Marilyn Garrett and Eddie Hood. Foster asserts that the prosecution justified striking Marilyn Garrett by noting that she was a teacher’s aid for the Head Start Program.The Head Start program is a school program that provides services for underprivileged and low-income children. Garrett’s employment at the Head Start Program was allegedly problematic because the victim was a retired teacher. However, Foster maintains that the prosecution accepted every white teacher and teacher’s aide as potential jurors. Foster also asserts that the prosecution justified striking Eddie Hood because he had an 18-year-old son, which was the same age as the defendant; and thus Hood might be susceptible to sympathizing with Foster. Nevertheless, Foster explains, the final jury included two white jurors who had sons of similar age to Foster.
Chatman counters that Foster’s comparative-juror analysis is distorted because it fails to account for the fact that jurors are the sum of their weaknesses and strengths. Chatman claims that it is not unusual that some white jurors possess a negative trait used to justify the striking of a potential black juror. He illustrates this contention by criticizing Foster’s analysis of Marilyn Garrett and Eddie Hood. Chatman asserts that the prosecution did not strike Garrett because she was a teacher’s aid, but because she worked for the Head Start Program. The prosecution predicted that Foster would present evidence that his underprivileged childhood precipitated murder, and Garrett might be susceptible to this argument due to her occupation. In response to Foster’s analysis of the striking of Hood, Chatman also contends that while other jurors had sons similarly aged to Foster, Hood’s son was prosecuted by the same district attorney’s office prosecuting Foster, which would make Hood an unfavorable juror.
IS THE STATE HABEAS COURT’S DECISION ENTITLED TO DEFERENCE?
Under Georgia law, res judicata typically prevents a petitioner from asserting a claim that the courts have rejected on direct review. To overcome the res judicata bar in his habeas proceedings, Foster presented new documents that he obtained from the district attorney’s file. The state habeas court ruled that Foster failed to “show[ ] any change in facts sufficient to overcome the res judicata bar.” Ordinarily, a reviewing court would give this finding deference and overturn the finding only if the habeas court committed a clear error.
Foster argues that the state habeas court’s factual finding is not entitled to deference because it is dependent on prior findings by the trial court and the Georgia Supreme Court. Foster contends that these findings failed to analyze all relevant circumstances, as Batson requires, because the courts based their findings on a small percentage of the presented evidence. Foster concludes that because these courts failed to follow the requirements of Batson, their findings are not entitled to deference.
However, Chatman contends that Foster fails to cite law to support his argument that the factual findings are not entitled to deference. Instead, Chatman argues that Foster bears the burden of proving that the habeas court committed a clear error in denying his claim. Chatman concludes that if the Court gives deference to the factual findings, the Court should determine that the state habeas court did not commit a clear error and affirm the state habeas court’s decision.
In Batson v. Kentucky, the Supreme Court held that a state violates a defendant’s rights under the Equal Protection Clause where the prosecution challenges potential jurors based solely on race. Foster and a group of prosecutors argue that the newly acquired prosecution’s notes provide clear evidence of intent to discriminate against prospective black jurors and thus the trial court’s ruling on his Batson challenge was erroneous. The State argues that the trial court’s ruling on Foster’s Batson challenge was not clearly erroneous and that the prosecution established sufficient race-neutral justifications for each of the peremptory challenges. The Court’s decision in this case will impact a defendant’s rights under Batson and the responsibilities of attorneys in jury selection, as well as the rights of prospective jurors.
PERSISTENT PROBLEM AND COMMUNITY IMPLICATIONS
Foster and a group of former prosecutors argue that race discrimination in jury selection continues to be a problem, despite the Court’s holding in Batson. According to the former prosecutors, most discrimination against prospective jurors occurs under the guise of race-neutrality, but in reality, prosecutors “all-too-often provide pretextual reasons to support the removal of black jurors.” The former prosecutors further contend that the problem with race discrimination in jury selection is not limited to the misconduct of a few prosecutors; instead, they argue that some prosecutors are trained to provide a list of reasons other than race that can be used in the face of a Batson challenge in order to disguise racially driven motives. And the former prosecutors argue that race discrimination in jury selection implicates the rights of not only the defendant, but also of the community at large. The former prosecutors cite several cases in which the Court has held that race discrimination against prospective jurors weakens public confidence in the justice system and denies prospective jurors the opportunity to participate in the democratic process.
Chatman maintains that the prosecutor did not rely on pretextual reasons to support the removal of black jurors and instead thoroughly researched the history and characteristics of each prospective juror. Chatman contends that “defendants are not entitled . . . to a jury of any particular composition.” Instead, Chatman asserts, each juror should be assessed by the sum of his or her characteristics. Notations made concerning race do not indicate discriminatory intent; rather, these notations demonstrate one consideration out of many that the prosecution is permitted to use in assessing prospective jurors. Chatman agrees that race discrimination in the jury selection process undermines the integrity of the justice system and implicates the rights of the community at large to participate in the judicial process. But Chatman maintains that race was not at issue in the selection of the jury and that rather than seeking to exclude black jurors, the prosecution instead sought to include at least one black juror. Chatman further argues that the prospective jurors did not believe that this case implicated race and most prospective jurors had positive impressions about race relations in the community.
BEST PRACTICE FOR PROSECUTORS
The former prosecutors argue that persistent race discrimination in jury selection is at odds with prosecutorial best practice. The prosecutors cite the National Prosecution Standards of the National District Attorneys Association, along with the American Bar Association’s Standards for Criminal Justice, to argue that race discrimination in jury selection fails to comply with prosecutorial ethics. According to the former prosecutors, the use of race discrimination in the jury selection process demonstrates “complete disregard” for the duty to be a representative of all people in the prosecutor’s jurisdiction.
Chatman asserts that finding race discrimination in this case would inhibit the prosecution’s ability to prepare for a Batson challenge. Under Batson, Chatman argues, the prosecution must “develop and maintain detailed information on those prospective jurors” to defend against any suggestion of racial impropriety in the jury selection process. According to Chatman, a finding of discriminatory intent would amount to unwarranted speculation regarding the prosecution’s intent.
In this case, the Supreme Court will decide whether the Georgia courts erred in failing to find race discrimination under Batson v. Kentucky, which held that prosecutors cannot use peremptory strikes to exclude jurors based solely on race. Foster argues that the prosecution purposefully discriminated against black potential jurors, which is illustrated by the prosecution’s racial-specific notes and a comparison of black and white potential jurors. Chatman argues that the prosecution’s notes reflect the prosecution’s preparation for an inevitable Batson challenge, and that Foster’s juror comparison fails to account for the complexities involved in selecting jurors. The Court’s decision will provide greater clarity as to what constitutes a violation under Batson.
- Vikram David Amar, Locating the Problem of Race-Based Peremptory Challenges in a Broader Context: The Possibilities Raised by the Foster Case on the Court’s Docket, Verdict (August 28, 2015).
- Linda Greenhouse, The Supreme Court’s Gap on Race and Juries, The New York Times (August 6, 2015).
- Lawrence Hurley, U.S. Justices to Hear Georgia Inmate’s Race Claim Over Jury Selection, Reuters (May 26, 2015).
- Adam Liptak, Exclusion of Blacks From Juries Raises Renewed Scrutiny, The New York Times (August 16, 2015).