How Supreme Court fixed a racial wrong

Supreme Court rules in favor of death row inmate
supreme court ruling on racial discrimination case of Timothy Tyrone Foster ariane de vogue_00000000

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  • Stephen Bright: Ruling sheds light on difficulty of preventing discrimination in jury selection
  • He says courts must prevent discrimination in every case, not just rare ones

Stephen Bright is counsel of record for Georgia death row inmate Timothy Foster and is president and senior counsel at the Southern Center for Human Rights. The opinions expressed in this commentary are solely those of the author.

(CNN)On Monday, the U.S. Supreme Court reached back three decades to right a racial wrong.

It ruled that prosecutors purposefully kept African-Americans off an all-white jury that sentenced a black man to death.
    Not only is the decision yet another reminder of the continued exclusion of people of color from juries and the resulting racially biased outcomes in death penalty and other criminal cases. It also casts a sharp light on the great difficulty -- the near impossibility -- of identifying and preventing racial discrimination in jury selection in the absence of some revelation that leaves no doubt about the matter.
    Stephen Bright
    In this case, there was such a revelation.
    In 1987, a jury was being picked in Rome, Georgia. A poor, black youth named Timothy Foster was accused of murdering a white woman. Although it is unconstitutional to strike potential jurors on the basis of their race during jury selection, that is exactly what prosecutors did.
    They then urged the all-white jury to sentence Foster to death to "deter other people out there in the projects." Timothy Foster grew up in Rome's projects, which were 90% black at the time. The jury sentenced him to die.
    Although the Supreme Court made selection of jurors by race unconstitutional in its 1986 ruling, Batson v. Kentucky, the practice remains widespread, even today.
    Prosecutors believe that all-white juries are more likely to convict and harshly sentence black defendants than racially diverse juries. And prosecutors who exclude nonwhites know that they can usually get away with it so long as they assert a reason other than race for the strike. Trial judges routinely accept the reason and declare that there was no discrimination.
    In fact, the North Carolina Conference of District Attorneys presented a statewide training course in 1995 that included a handout called "Batson justifications: Articulating Juror Negatives," listing 10 kinds of "justifications" that can be offered as a race-neutral explanation for a juror strike.
    When courts pretend it's not about race
    The Texas District and County Attorneys Association distributed a similar list, called "Batson Basics" at its Prosecutor Trial Skills Course in 2004. Of course, a prosecutor is supposed to give the actual reason for striking the potential juror, not one prepared by someone else long before trial.
    The lists provide a rare public glimpse of a common practice: Strike the black potential jurors because of race and later assert a plausible, race-neutral reason for the strikes. Some prosecutors give a "laundry list" of reasons in the hope that one of an unusually large number of reasons for the strike will be found to be a valid reason for striking the juror.
    Foster's prosecutors used their peremptory strikes to eliminate four black potential jurors and gave eight to 12 reasons for each of the strikes.
    Some of the reasons made no sense or were contradicted by the prosecution's notes. For example, the reason cited for striking one potential black juror was that her age was close to the defendant. She was 34; the defendant was 19. A 21-year-old white man served on the jury with no objection from the prosecution.
    Another potential black juror was struck for the stated reason that his church opposed the death penalty, although the prosecution's notes showed the church did not oppose the death penalty. Moreover, the potential juror had repeatedly stated in questioning during jury selection that he could impose the death penalty. There are several other examples such as this from Foster's case.
    In many ways, what happened in Foster's case is troublingly ordinary:
    A 2010 review by Equal Justice Initiative of jury selection in eight Southern states found evidence of racial discrimination in jury selection in every one; a 2012 North Carolina study found eligible black jurors struck at twice the rate of whites; and a 2003 Louisiana study found it was three times the rate.
    Thanks to the Georgia Open Records Act, in 2006 our office, the Southern Center for Human Rights, finally got the prosecution's notes from the jury selection in 1987. The notes eliminated any doubt that the strikes were based on race.
    They demarcated the black jurors' names at least six different ways, including marking the names of black prospective jurors with a "B," highlighting them in green, and circling the word "black" next to the "race" question on the juror questionnaires of black prospective jurors.
    The notes revealed that the prosecutors ranked the black potential jurors against one another and included all of them as the first names on their list of "Definite NOs" -- potential jurors who would definitely be struck. As Justice Elena Kagan commented during oral argument, "Isn't this as clear a Batson violation as a court is ever going to see?"
    And so, on Monday the U.S. Supreme Court recognized the unconstitutionality of what happened at Foster's trial. The Georgia courts had the opportunity to recognize the discrimination and grant him a new trial, but they didn't. Foster will now get a new trial.
    But what about all the other Timothy Fosters out there? Rarely do the prosecution's notes come to light as they did in his case, making clear the discriminatory intent. There is little doubt that similar discrimination in jury selection is pervasive, as shown by the numerous studies noted above.
    The harm is clear. Juries are the consciences of their communities. All citizens are entitled to serve on juries just as all are entitled to vote. And every person accused of a crime is entitled to a jury that is representative of the community. Exclusion of people from jury service on the basis of race and gender leaves the courts without credibility or legitimacy.
    Monday's decision won't end discrimination in jury selection. The practice, regrettably, will continue in courtrooms across the country as courts ignore patterns of race discrimination and accept false reasons for the strikes.
    Justice Thurgood Marshall said in Batson v. Kentucky that discrimination would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination.
    The Supreme Court and state and federal courts must prevent discrimination in every case, not just the rare case where the prosecutor's motives happen to be revealed.