New York Times

Justices See Racial Bias in Selecting White Jury

May 23, 2016

by Adam Liptak

WASHINGTON — The Supreme Court ruled on Monday that prosecutors in Georgia violated the Constitution by striking every black prospective juror in a death penalty case against a black defendant. The vote was 7 to 1, with Justice Clarence Thomas dissenting.

The case, Foster v. Chatman, No. 14-8349, arose from the 1987 trial of Timothy T. Foster, an African-American facing the death penalty for killing Queen Madge White, an elderly white woman, when he was 18.

In notes that did not surface until decades later, prosecutors marked the names of black prospective jurors with a B and highlighted those names in green. They circled the word “black” where potential jurors had noted their race on questionnaires.

They ranked those prospective jurors in case “it comes down to having to pick one of the black jurors,” as the prosecution’s investigator put it in a draft affidavit at the time. In the end, prosecutors struck all four black potential jurors.

After Mr. Foster was convicted, Stephen Lanier, the lead prosecutor, urged the all-white jury to impose a death sentence to “deter other people out there in the projects.” The jury did so.

Chief Justice John G. Roberts Jr., writing for the majority, said the 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.

That is a forgiving standard. “All I have to do is have a race-neutral reason,” Mr. Lanier said at the time, “and all of these reasons that I have given the court are racially neutral.”

But Chief Justice Roberts rejected several of Mr. Lanier’s reasons, calling them pretextual. The chief justice focused on two prospective jurors, Marilyn Garrett and Eddie Hood.

Mr. Lanier had offered a list of 11 reasons for striking Ms. Garrett, including that she was too young.

“Yet Garrett was 34,” Chief Justice Roberts wrote, “and the state declined to strike eight white prospective jurors under the age of 36. Two of those white jurors served on the jury; one of those two was only 21 years old.”

Mr. Lanier also said Ms. Garrett was unfit to serve because she was divorced. But, the chief justice wrote, Mr. Lanier “declined to strike three out of the four prospective white jurors who were also divorced.”

Mr. Lanier gave eight reasons for striking a second prospective juror, Mr. Hood, including that his son was the same age as the defendant and had been convicted of a crime that was, he said, “basically the same thing that this defendant is charged with.”

Chief Justice Roberts called this “nonsense.”

“Hood’s son had received a 12-month suspended sentence for stealing hubcaps from a car in a mall parking lot five years earlier,” he wrote. “Foster was charged with capital murder of a 79-year-old widow after a brutal sexual assault.”

Mr. Lanier also said he doubted that Mr. Hood would impose the death penalty in light of his religious faith. “But the record persuades us that Hood’s race, and not his religious affiliation, was Lanier’s true motivation,” Chief Justice Roberts wrote.

In sum, the chief justice wrote, “we are left with the firm conviction that the strikes of Garrett and Hood were motivated in substantial part by discriminatory intent.”

The decision was narrowly focused on Mr. Foster’s jury selection and is unlikely to have a broad impact. Evidence of the sort that surfaced in Mr. Foster’s case is rare, and the Batson decision is easy to evade.

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.

Stephen B. Bright, a lawyer for Mr. Foster, now 48, said his client was “entitled to a new trial at which jurors are not excluded based on race.” But Justice Samuel A. Alito Jr., in a concurrence, suggested that the state court in Georgia might still have a path to rule against Mr. Foster.

In dissent, Justice Thomas said the majority had not given enough deference to the trial judge’s assessment of the prospective jurors’ demeanor and of the prosecutors’ credibility.

For instance, Justice Thomas said, the judge determined that Mr. Hood had answered questions about the death penalty slowly and softly. Notes in the prosecutors’ files said the Church of Christ, of which Mr. Hood was a member, did not take a formal stand against capital punishment, Justice Thomas added.

“This new evidence supports the prosecution’s stated reason for striking Hood — that he, as a member of the Church of Christ, had taken an uncertain stance on capital punishment,” Justice Thomas wrote.