On November 2, 2015, the New York Times reported on the oral arguments in the United States Supreme Court case of Foster vs. Chatman, Case No. 14-8349. This is a Georgia Death penalty case where an all-white jury convicted Foster of capital murder and the death penalty. After the normal appeals were exhausted, an open record request was sent for the prosecutor’s notes during jury selection in conjunction with a Habeas Corpus investigation. The Open Records request revealed that the prosecutor had marked African-American jurors in his notes during jury selection as B1, B2 et cetera. The prosecutor had also prioritized the African American jurors in case they had to let a black person on the jury. The prosecutor also highlighted all the black jurors with green highlighter markers.
This case occurred just four months after Batson v. Kentucky where the U.S. Supreme Court held that jurors may not be stricken based on race. The State tried to argue that the prosecutor marked jurors with the letter B and used a green highlighter specifically because of the concerns raised in Batson, supra. But as Justice Breyer pointed out, isn’t it a little surprising that this issue was never raised by the State before the main briefs in the U.S. Supreme Court when there was a smoking gun found in the prosecutor’s notes almost 30 years later.
Under Batson, there is a three-step process to determine whether a prosecutor has used peremptory challenges to strike jurors based on race:
(1) the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges based on race;
(2) if this showing is made, the burden shifts to the prosecutor to articulate a clear and reasonably specific race-neutral explanation for striking the jurors in question and
(3) the trial court must evaluate the credibility of the proffered reasons and determine whether the defendant has carried his burden of proving purposeful discrimination. 476 U.S. 79 at 96-98. On appellate review, a trial court’s denial of a Batson challenge will not be reversed unless erroneous. Hernandez v. New York, 500 U.S. 352, 369 (1991)
The reality of a Batson challenge is that even after you make a prima facie case of race-based jury strikes, all the prosecutor has to do is articulate race-neutral reasons for the peremptory jury strikes. This is generally not difficult. You should not be able to give canned responses like “personal preference’” or “low income” which have been approved by some courts as race-neutral. You just have to generally articulate a race-neutral reason. However, In Miller-El v. Dretke, 545 U.S. 231 (2005), the U.S. Supreme Court said that the failure to engage in any meaningful voir dire about whatever your reason is is evidence suggesting that the explanation is a sham and a pretext. This is a trap that catches many prosecutors. This is because the Batson challenge is made after the jury is selected. So prosecutors are generally shooting from the hip and throwing as many reasons as they can hoping that at least one will stick.
One of the black jurors, Ms. Garrett, was stricken because she was a social worker and because her son had a drug conviction. In reality, she was not a social worker, and the prosecutor did not find out until after the trial that her son had a drug conviction which could not have been a reason. One of the black jurors was dismissed because she was close in age at 34 to a 19-year-old. Justice Alito pointed out that this was not close in age.
In this day and age, it is just not okay to dismiss a jury based on race or even to dismiss all the jurors of one race. Juries should reflect the community. The proportion of race and gender should reflect the most recent census in the community in the jurors called to jury duty generally and the jurors sent to a given courtroom. A prosecutor should not be able to exercise a discretionary or peremptory strike if that strike crossed the quota imposed by the most recent census. The justice system to maintain any sense of integrity and moral authority must avoid even the appearance of impropriety. Striking all the jurors of one race smacks of institutional racism.
-Author: George Creal