Saturday, May 28, 2016

GateHouse: High Court decision on jury bias has limited impact

Matthew T. Mangino
GateHouse Media
May 27, 2016

Last fall, a case argued before the U.S. Supreme Court was described in this way by Justice Elena Kagan, “as clear a constitutional violation as a court is ever going to see.”

This week, the Supreme Court ruled in that case, and in favor of a black Georgia death row inmate, Timothy Foster, convicted in 1987 of murdering an elderly white woman. The Court found that prosecutors unlawfully excluded black potential jurors when selecting an all-white jury.

Foster was 18-years-old when he was arrested for the murder of Queen Madge White, a widow and former elementary school teacher in Rome, Georgia. According court documents, “Foster broke into White’s home. He broke her jaw, coated her face with talcum powder, sexually molested her, and strangled her to death.”

Chief Justice John G. Roberts Jr. wrote the opinion in Foster’s case finding that prosecutors had violated a 1986 decision, Batson v. Kentucky, in which the Supreme Court ruled that race-based discrimination in jury selection was unconstitutional and required lawyers accused of it to provide a nondiscriminatory explanation.

The landmark decision in Batson was intended to eliminate racial bias in the use of peremptory challenges in jury selection.

A peremptory challenge is the exclusion of a potential juror, during the jury selection process, without the need for a reason or explanation.

The Batson 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.

At the time of Foster’s trial, his legal arguments over jury selection failed. However, in 2006 his lawyers obtained access to the prosecution’s jury selection notes, which showed that the race of the black potential jurors was highlighted, indicating “an explicit reliance on race,” according to Foster’s attorneys.

The notes showed that the prosecution marked the names of the black prospective jurors with a “B,” highlighted them in green and circled the word “black” next to the race question on juror questionnaires.

Chief Justice Roberts wrote in Foster, “We are left with the firm conviction that the strikes of (two of the African American potential jurors) were motivated in substantial part by discriminatory intent.”

The decision was narrowly tailored and is unlikely to have a broad impact, according to the New York Times. Evidence of the sort that surfaced in Foster’s case is rare, and the Batson decision is easy to evade.

According to the Times, studies in Alabama, Louisiana and North Carolina have found that prosecutors use peremptory challenges two or three times more often to strike black potential jurors than to strike others. 

Foster’s lawyer, Stephen B. Bright of the Southern Center for Human Rights in Atlanta, argued to the Supreme Court, “The decision in this case will not end discrimination in jury selection . . . The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination.”

Bright channeled Justice Thurgood Marshall who wrote in Batson, “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process . . . That goal can be accomplished only by eliminating peremptory challenges entirely.”

Not everyone agrees that the peremptory challenge should be abolished. The peremptory challenge promotes the concept of a fair and impartial jury. Trial attorneys have long suggested that the challenge helps facilitate the search for bias.

The peremptory challenge serves as fallback when a party strongly believes that a potential juror is biased but does not have enough to convince the court to remove the juror for bias. The peremptory challenge will not be disappearing anytime soon.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.

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