GateHouse Media
November 6, 2015
In Georgia, as in most states, prosecutors and
defense attorneys in capital cases can strike jurors during jury selection for
just about any reason. A potential juror is chewing gum ... she’s out. A
potential juror is a school teacher … gone. A potential juror is sleeping
during the colloquy … out of here.
The process of striking a juror for any reason is
referred to as a peremptory challenge. An unlimited number of potential jurors
can be eliminated for cause — things like knowing the defendant or being
related to the prosecutor.
There is one reason for which a trial attorney
cannot use a peremptory challenge — race.
This week, the U.S. Supreme Court heard arguments in
Foster v. Chatman, which questions if race was used to discriminate against
potential jurors in a Georgia murder trial.
Timothy Foster was 18 years old when he was arrested
for the murder of Queen Madge White, a 79-year-old widow and former elementary
school teacher. Foster is African-American while the victim was white.
According to prosecutors, “Foster broke into White’s home. He broke her jaw,
coated her face with talcum powder, sexually molested her with a salad dressing
bottle, and strangled her to death, all before taking items from her home.”
Turned in by his girlfriend, Foster admitted to the
crime. But there were questions about his limited intellectual capacity and
whether he had an accomplice.
When the case went to trial all of the black members
of the jury pool were removed. Foster’s trial came only a year after the
Court’s landmark decision in Batson v. Kentucky. Batson was intended to
eliminate racial bias in jury selection.
The 1986 ruling set up a three-step process for
testing complaints about race-based use of peremptory strikes.
First, the accused has to show membership in a
specific racial group.
Second, prosecutors need to offer nonracial reasons
for removing the juror.
Third, the judge must decide whether, taking
everything into consideration, the defense proved a racial bias.
“The decision today will not end the racial
discrimination that peremptories inject into the jury-selection process,”
Justice Thurgood Marshall wrote in Batson. “That goal can be accomplished only
by eliminating peremptory challenges entirely.”
During jury selection in Foster’s case, one black
juror was dismissed for cause, and prosecutors eliminated the other four with
peremptory challenges, offering a variety of nonracial reasons accepted by the
presiding judge.
Foster was convicted and sentenced to death. Georgia
appellate courts upheld the conviction and sentence.
In 2006, nearly 20 years after his conviction,
Foster’s lawyers obtained the prosecution team’s jury selection notes under the
Georgia Open Records Act.
The name of each potential black juror was
highlighted on four different copies of the jury list and the word “black” was
circled next to the race question on questionnaires for the black prospective
jurors. Three of the prospective black jurors were identified in notes as
“B#1,” “B#2,” and “B#3.”
According to the Miami Herald, an investigator
working for the prosecutors also ranked the black prospective jurors against
each other in case “it comes down to having to pick one of the black jurors.”
In Foster, the Court has been asked to consider
whether information outside of the three-step Batson inquiry can help answer
questions about whether the African-Americans were intentionally kept from the
jury because of their race.
The Foster argument featured no discussion of
limiting, or eliminating, peremptory challenges as Justice Marshall suggested
in Batson and Justice Stephen G. Breyer reiterated in 2005. Unlikely as it may
seem, perhaps the time has come to eliminate peremptory challenges and put to
rest any issue of racial bias in jury selection.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was
released by McFarland Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter at @MatthewTMangino.
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