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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