Jury and racial bias debate comes to the Supreme Court

[frigidmagi]

CNN

Lawyers for a death row inmate say they have obtained racially charged evidence -- notes from the prosecution team -- that should win their client a new trial some 30 years after his original conviction.

The case dates back to 1987 when Timothy Tyrone Foster, an African-American 19-year-old, was sentenced to death by an all-white jury for the murder of an elderly white woman. At the time, the lead prosecutor urged the jury to impose a death sentence to "deter other people out there in the projects."

Nearly 20 years later -- through an open records request -- Foster's lawyers obtained the notes the prosecution team took while it was engaged in the process of picking a jury. Foster's lawyers, led by Stephen Bright, from the Southern Center for Human Rights, say the notes reflect that the prosecution illegally took race into consideration as it struck every potential black juror.

Monday, the Supreme Court will take up Foster's case and grapple with the allegation that race discrimination persists in jury selection nearly three decades after the Supreme Court famously reaffirmed that jurors cannot be struck because of race.

"The evidence of racial motive by the prosecution in this racially charged capital case is extensive and undeniable," Bright told the justices in court papers.

The notes at the center of the case are disputed, and Georgia Attorney General Sam Olens argues he can refute any charges of improper discriminationatory intent.

One thing is clear, however. The notes are not color blind.

Back in 1987, as the legal teams were preparing to pick a jury, they were granted "peremptory challenges" that allowed them to dismiss potential jurors without explanation. But Supreme Court precedent -- reaffirmed in 1986 -- says, however, that jurors cannot be struck because of their race.

In the Foster case, the state and the defense used their peremptory strikes to reduce the pool to 12 jurors and four alternates. The state struck the four black potential jurors.

One set of documents from the prosecution files shows that potential jurors who were black had a "B" written by their name and their names highlighted with a green pen. On some juror questionnaire sheets, the juror's race "black," "color" or "negro" was circled. One juror, Eddie Hood, was labeled "B #1. Others were labeled B#2, and B#3.

Another set of the prosecution notes contains a coded key to identify race. There is a list of six "definite no's" --the top five are black. Another note suggests that, "if we had to pick a black, I recommend that Ms. Garrett be one of the jurors."

Bright told the justices in legal briefs, that the notes reveal that the prosecution meant to prevent, "all of the black prospective jurors from serving on the jury."

Olens denies any misconduct in briefs and references the brutality Foster's murder of Queen Madge White, a 79-year-old retired elementary school teacher who lived alone. In court papers, Olens says Foster "broke her jaw, coated her face with talcum powder, sexually molested her with a salad-dressing bottle and strangled her to death."

In 2013, a lower trial court conducted an examination of Foster's claims and found no error.

Justifications for removing jurors
It was in 1986 in Batson v. Kentucky that the Supreme Court held that once a defendant has produced enough evidence to raise an inference that the state impermissibly excluded a juror based on race, the state must come forward with a race-neutral explanation for the exclusion.

According to Bright, the states' race-neutral justifications don't hold up. For example, the prosecution said one reason it struck a 34-year-old black woman was that she was near the age of Foster. He was 19. A white man was accepted who was 21.

Bright said the prosecution notes from the time "reveal a sharp focus on the race of prospective jurors and a determination to prevent black citizens from serving on the jury."

In briefs, Olens says the jurors weren't struck based on their race. He said the notes "are not evidence of the state's intention to engage in purposeful discrimination as alleged by Foster." Instead, he said the notes are the "result of the state's effort to rebut contentions of discrimination" that the team was anticipating.

"How could the prosecution respond to a challenge to the racial composition of the jury," Olens wrote, "without noting which prospective jurors were black?"

"Each black prospective juror had characteristics entirely apart from their race that would have put any prosecutor on notice that they may well be inclined against the state's case," Olens said.

Foster is supported by former state and federal prosecutors, who say that prosecutorial miscounduct was at play. The prosecutors argue in briefs that while some conduct across the country is "shockingly blatant" most discrimination occurs under the guise of purportedly "race neutral" justifications.

"The court's decision in Foster will impact how easy it is for prosecutors to get away with excluding prospective jurors on the basis of race" said John Rappaport, an assistant professor of law at the University of Chicago Law School. He believes the court should rule in favor of Foster and emphasize that trial courts should not accept prosecutors' implausible explanations for race-based strikes. Rappaport notes Justice Stephen Breyer has suggested abolishing peremptory strikes altogether.

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.

"In many cases, people of color not only have been illegally excluded but also denigrated and insulted with pretextual reasons intended to conceal racial bias," the report concluded. The authors found that African-Americans had been excluded because they "appeared to have 'low intelligence'; wore eyeglasses; were single, married, or separated; or were too old for jury service at age 43 or too young at 28."