But racist lawyers simply switched to more nuanced methods of excluding African Americans from juries, including peremptory challenges.
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In contrast to Foster’s efforts to portray the trial as deeply infected with race, the prosecution’s overall response is a highly detailed, point-by-point defense of the explanations given for the exclusion of black jurors.
Monday, the Supreme Court will take up Foster’s case and grapple with the allegation that race discrimination persists in jury selection almost three decades after the Supreme Court famously reaffirmed that jurors can not be struck because of race. Both sides – prosecutors and defense lawyers – try to make educated guesses about how potential jurors may react if seated, at times using behavioral experts to improve the guessing.
Timothy Tyrone Foster is a black defendant, who was charged with killing an elderly white woman, Queen Madge White. White had just returned home from choir practice. And because Foster received a death sentence, it could fuel concerns previously voiced by two justices that the death penalty itself may be unconstitutional – in this case because of racial bias.
Foster is black, and his jury was all-white, which is legal.
Of the six jurors struck off by prosecutors in the case, the first five on the list were African American.
Three prospective black jurors were labelled on the notes as “B#1”, “B#2” and “B#3”. (Incidentally, Lundy himself is black).
That’s because Foster v. Chatman, a high-profile case about racism in jury selection, is really not a case about racism in jury selection. 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.
That case, decided one year before Foster was convicted, established that the Constitution prohibits lawyers from using so-called “peremptory strikes” to shut out potential jurors on account of their race – the rationale being that no citizen can be denied an opportunity to serve on a jury.
The Supreme Court tried to stamp out discrimination in the composition of juries in Batson v. Kentucky in 1986. Prosecutors, they say, easily game the system by giving pretexual explanations, particularly in the South. In North Carolina, for example, prosecutors routinely handed out a one-page list of such reasons in training sessions. If there is no paper trail – like the highlighting and circling in this case – it is practically impossible to prove the “subjective intent inside someone’s mind”. “And let’s be honest, defense attorneys do it, too”.
In 2010, the Equal Justice Initiative, a nonprofit organization that provides legal representation to prisoners, reviewed jury selection procedures of eight southern states and uncovered what it called “shocking evidence” of racial discrimination in jury selection in every state.
How does this happen?
His strategy: Question black prospective jurors at length until you elicit an answer that can be used to justify striking those jurors on a few basis other than race. These included, “Agreed with O.J. Simpson verdict”, “Long hair and a goatee”, “Chewing gum”, “Worked for a labor union” and “Smiled at or flirted with defendant”.
One woman, Marilyn Garrett, then aged 34, was turned down because she was said to be close in age to the defendant, who was 19 at the time. (The document, which Edmonds sent to us, provides a rich look at how prosecutors prepare for trials).
“They insisted that the Church of Christ took a strong position against the death penalty and that any member of the Church of Christ would vote against the death penalty”, Bright says. A juror may be struck because the lawyer doesn’t like the juror’s haircut, or because the juror is a hockey fan, or because the juror’s third cousin once was rude to a cop. He went through the prosecution team’s notes, and he said he found blatant discrimination in them.
The Supreme Court will issue a decision by late June.
“Sure it was new, but they were wrong”, Kennedy said. Soon after it was issued, Jack McMahon, an assistant district attorney in Philadelphia, made a training film that showed fellow prosecutors how to exclude blacks from juries.
Swarns sees these overt cases as exceptions only in their bluntness; usually discrimination is more subtle.
Keith Adams, a criminal defense attorney from Decatur, said Marshall’s prediction was spot on.
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On Monday, Bright will argue the Supreme Court should grant Foster a new trial and force trial judges to hold juror challenges to a higher standard.
