Matthew T. Mangino
The Pennsylvania Law Weekly
December 1, 2015
Since 1976, the U.S. Supreme Court has preferred to limit its review of death penalty cases to mainly questions of procedure. The high court has preferred to nibble around the edges when it comes to the death penalty—as in cases involving rape, juveniles, intellectual disabilities and lethal injection.
This month, for example, the court heard arguments in Foster v. Chatman, which questions if race was used to discriminate against potential jurors in a Georgia death penalty case.
Foster's case arrived at the court a few months after Justices Stephen Breyer and Ruth Bader Ginsburg said the court should consider declaring the death penalty unconstitutional.
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation said cases like Foster's do very little to advance justice, but rather are designed to chip away at capital punishment.
"Polls consistently show the death penalty is just and right in some cases," Scheidegger told The Hill. "They are trying to grind it down through a war of attrition."
Racial bias in jury selection has, at times, been extreme in this country. In 1880, the Supreme Court struck down a West Virginia statute that denied black citizens "the right and privilege of participating in the administration of the law as jurors because of their color."
The court in Strauder v. West Virginia, 100 U.S. 303 (1880) ruled, "[The law] denies to such citizens the equal protection of the laws, since the constitution of juries is a very essential part of the protection which the trial by jury is intended to secure."
A century later, the court set up a three-prong test for examining complaints about race-based use of peremptory strikes. The court in Batson v. Kentucky, 476 U.S. 79 (1986) ruled:
First, the accused has to show membership in a specific racial group, and make the point that prosecutors had used their peremptory strikes to preclude all or most members of that race from serving as jurors.
Second, it is then up to prosecutors to offer non-racial reasons for using those strikes.
Third, the task falls to the trial judge to decide whether, taking everything into account, the defense lawyers had succeeded in showing that prosecutors had intentionally kept minority jurors from serving because of their race, despite prosecutors' attempts to provide race-neutral explanations.
In Snyder v. Louisiana, 552 U.S. 472 (2008) the court, in an opinion written by Justice Samuel A. Alito Jr., ruled 7 to 2 that Louisiana prosecutors had erred in striking African-American jurors because the reasons given for the disqualifications applied equally to white jurors who were accepted.
Why is it important that racial bias be eliminated from the jury selection process? In 2011, Mona Lynch and Craig Haney examined racial bias in capital cases in an article published in the Michigan State Law Review. The authors found that "the racial disparities ... in sentencing outcomes were likely the result of the jurors' inability or unwillingness to empathize with a defendant of a different race—that is, white jurors who simply could not or would not cross the 'empathic divide' to fully appreciate the life struggles of a black capital defendant and take those struggles into account in deciding on his sentence."
The case argued earlier this month before the Supreme Court is all too familiar. Timothy Foster, an African American, was 18 when he was arrested for the murder of a 79-year-old white woman named Queen Madge White.
Foster acknowledged the crime—but there were questions about his limited intellectual capacity and whether he acted alone.
When the case went to trial, the Batson decision was still relatively new. Foster's attorneys said they would raise legal challenges under the Batson precedent if the prosecution tried to eliminate the five African-American jurors in the jury pool.
One was dismissed for cause, and prosecutors eliminated the other four with peremptory challenges, offering a variety of nonracial reasons accepted by the presiding judge.
The name of each potential African-American 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 African-American prospective jurors. Three of the prospective African-American jurors were identified in notes as "B#1," "B#2" and "B#3."
Foster was convicted and sentenced to death. Georgia appellate courts upheld the conviction and sentence. In 2006, Foster's lawyers again challenged the jury selection process after obtaining the prosecutors' jury selection notes through the Georgia Open Records Act.
Eight former state and federal prosecutors—including noted author Scott Turow, a former federal prosecutor—believed there was racial bias in selecting Foster's jury. As a result, the group provided vigorous support for Foster's portrayal of the racial bias in selecting his jury through an amicus brief. The former prosecutors argued that racial bias in selecting jurors remains a serious problem nationwide nearly three decades after the Batson decision.
According to Lyle Denniston at the SCOTUS Blog, if the record in Foster's case does not convince the court that "purposeful discrimination" had occurred here, then it "will render Batson meaningless."
At least six of the nine justices indicated during the Foster argument that African Americans were improperly singled out and kept off the jury that eventually sentenced Foster to death in 1987.
Alito, who typically sides with prosecutors in criminal cases, was bothered by the explanation of prosecutors for striking black jurors from the panel. Justice Elena Kagan said Foster's case seemed as clear a violation "as a court is ever going to see" of the rules the Supreme Court laid out in Batson.
As long as there are peremptory challenges there will be pretextual reasons offered for striking minority jurors, and defendants will continue to make challenges under Batson whether or not there are legitimate grounds. Those tenuous arguments are not unlike the peripheral challenges relating to the death penalty that consume an enormous amount of time and resources.
Whatever the obvious shortcomings, don't expect the peremptory challenge—or the death penalty for that matter—to disappear any time soon. •
Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland & Company. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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