Supreme Court takes up racial bias in jury selection

There is no way to know, she suggested, without the prosecutor asking a question about this concern. First, the judge removes, “for cause”, those jurors deemed incapable of being impartial.

The US’s highest court had ruled in 1986 that jurors could not be excluded due to race. These so-called peremptory strikes permit excluding jurors based on a hunch or bias.

Foster could win a new trial if the Supreme Court rules his way.

Meanwhile, Justice Stephen Breyer likened the chief prosecutor to his excuse-filled grandson as he attempted to explain the reason why all potential black jurors were rejected by the state.

Studies have shown that these proffered reasons are often a mere pretext for racial discrimination. Foster, a black man, was sentenced to death by an all-white jury. Prosecutors struck all four black jurors out of the 42 qualified by the trial court to serve on the jury.

This was the kind of thing, the Supreme Court was told on Monday, that could illustrate what was then – a few quarter-century ago – a common practice in that community of keeping blacks from serving on juries in criminal cases.

The court heard the case of Timothy Tyrone Foster on Monday morning, and spent much of their time not on debating whether prospective black jurors were wrongly kept off Foster’s jury (in violation of an earlier court decision), but rather on winding discussions of what could seem like insignificant procedural minutiae. They ranked them in case “it comes down to having to pick one of the black jurors”. Another failed to make eye contact. Under a Georgia Open Records request by the defense, gave the court gave Foster’s legal team access to the prosecutors’ trial and jury selection notes, previously protected as work product. Other notes indicate the potential African-American jurors were highlighted in green and denoted by “B#1”, “B#2”, and “B#3” next to their names with a legend indicating the green highlighting meant the juror was black.

Georgia Deputy Attorney General Beth Burton had little support for the proposition that prosecutor Stephen Lanier advanced plausible “race-neutral” reasons that resulted in an all-white jury for Foster’s trial.

“They were referred to by B1, B2, B3”, Bright says. “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”.

“Some lower courts have upheld a strike if they can find there is one legitimate reason for it”, Justice Sonia Sotomayor observed.

Bright contends that the state of Georgia continues to change its story about the justifications.

Several justices Monday, though, all-but declared they distrusted the trial prosecutor’s stated reasons for striking the African-American jurors.

In fact, the Church of Christ took no position on the death penalty; the prosecution notes reflect that, and Hood testified that he could vote for the death penalty.

Then there was prospective juror Marilyn Garrett.

Or ponder a psychiatrist’s testimony on Foster’s behalf, who found he “was in the borderline range for intellectual disability” – with an IQ range between 58 and 80 his entire life.

In the end, Foster was unanimously found guilty by a jury of 12 whites.

The state of Georgia refused to provide anyone to be interviewed for this story. A judicial system that allows for obviously discriminatory jury selection is intolerable. Another juror was allegedly struck for being a social worker, but she is not a social worker. Another black juror “looked bored”.

No briefs have been filed in support of the state’s position in the case.

The Foster case presumably drew the court’s attention because blatant examples of racial discrimination – especially if a person’s life is on the line – tend to draw more scrutiny than subtler forms of bias in the administration of justice.

Mr. Foster’s case is of course more egregious and as Mr. Thompson puts it, it “offers a rare instance of extraordinary and well-documented misconduct”.

Timothy Foster was a teenager when he was sentenced to death after admitting his part in the killing of 79-year-old Queen Madge White in her home in Rome, Georgia, in 1986.

The Supreme Court said in a Friday letter to lawyers in the case that it may ask for an additional briefing, which may delay any potential ruling.