By Leland Ware
Louis L. Redding Chair and
Professor for the Study of
Law and Public Policy
Law and Public Policy
University of Delaware
Timothy Foster was convicted of capital murder and sentenced to death by a Georgia court. During jury selection the prosecutors used peremptory challenges to strike all of the black prospective jurors. Foster argued that the State’s use of the strikes was racially motivated in violation of Batson v. Kentucky. In Batson the Supreme Court held that when a defendant in a shows that there is a possibility that juror strikes are being used in violation of Equal Protection Clause of the Fourteenth Amendment, the State must prove that the challenges have a legitimate, nondiscriminatory reason. In this case the Supreme Court concluded that the prosecutors’ misrepresentations of the record and persistent focus on race compelled it to conclude that striking African American jurors was motivated by a discriminatory intent.
This case originated in 1986 and went back and forth in trial and appellate courts in Georgia for several years. While proceedings in the Georgia courts were pending, Foster used the Georgia Open Records Act to obtain copies of the files used by the prosecution during his trial. The prosecutor’s notes had each black juror’s name highlighted and circled with a “B” written next to it. Other notes in the file refuted the prosecutors’ race-neutral explanations for excluding prospective jurors who were African Americans.
The prosecutors contended that they made a last-minute decision to strike a black juror, Marilyn Garrett after another juror, Shirley Powell, was excused. The Supreme Court found that explanation was flatly contradicted by evidence showing that Garrett’s name appeared on the prosecution’s list of prospective jurors the prosecution intended to strike from the outset. The record also refuted several of the other race neutral reasons the prosecutors gave for striking Garrett. For example, the prosecutors said they struck Garrett because the defense did not ask for her thoughts about insanity, alcohol, or pre-trial publicity. However, the record showed that the defense asked Garrett multiple questions on these topics.
The prosecutors gave other neutral justifications for striking Garrett. However, the Supreme Court found that those explanations were not credible because of the State’s willingness to accept white jurors with the same characteristics. For example, the prosecutors claimed they struck Garrett because she was divorced and, at age 34, too young. However, three out of four divorced white prospective jurors and eight white prospective jurors under age 36 were allowed to serve.
The record similarly undermined the justifications proffered by the prosecution for striking a black prospective juror Eddie Hood. The prosecutors alleged that their only concern with Hood was the fact that his son was the same age as the defendant. But, at a subsequent hearing, the prosecutors told the court that their primary concern was with Hood’s membership in the Church of Christ. Neither of those reasons withstood scrutiny. As to the age of Hood’s son, the prosecution allowed white prospective jurors with sons of similar age to serve.
The prosecution erroneously claimed that three white Church of Christ members were excused for cause because of their opposition to the death penalty, when in fact the record showed that those jurors were excused for reasons unrelated to their views on the death penalty. Other justifications for striking Hood did not stand up because no concerns were expressed with regard to similar white prospective jurors. Chief Justice John Roberts Jr, called the prosecutors’ race-neutral justifications “nonsense” that “reeks of afterthought.” Writing for the 7-1 majority, Roberts concluded that prosecution’s shifting explanations, misrepresentations of the record, and persistent focus on race, required a ruling that striking the black prospective jurors was motivated by a discriminatory intent. The only dissent was filed by Clarence Thomas, the only African American justice on the Supreme Court.
Criminal justice scholars have complained for decades about the exceedingly high levels of prosecutorial misconduct and institutional discrimination in the criminal justice system. This is another example of a flawed system in need of a complete overhaul. This is not the fault of a few bad apples. The longstanding culture of racism among law enforcement officials will not be reformed until the American public faces this uncomfortable reality.