Jon Allison’s Monday Blog
Last week the Supreme Court heard arguments in Foster v. Chatman. Tim Foster, an African-American male, was tried, convicted and sentenced to death for the murder of a white victim. The Supreme Court is considering whether prosecutors engaged in race discrimination by using their peremptory strikes to exclude African-American jurors and then arguing to the all-white jury that the death penalty was appropriate to deter other people from the projects from doing the same thing.
There are rules for jury selection. Prospective jurors are generally questioned by lawyers for the prosecution and the defense. The Judge then removes some jurors if there is some reason those potential jurors can’t serve. The lawyers then have an opportunity to use “peremptory strikes” to eliminate jurors without a stated reason. Jurors cannot be struck due to race or gender. Following the Batson v. Kentucky case in 1986, if the defense could show a racial pattern in peremptory strikes by the prosecution, the potential jurors would not be eliminated unless the prosecution could articulate a nonracial reason for the strike. The problem is courts have been all too willing to accept the reasons articulated even where it appears race is the real reason.
Studies from numerous jurisdictions have shown that African-American jurors are significantly more likely to be eliminated from the jury. Studies also show that racially diverse juries are less likely to convict and less likely to impose the death penalty. In the Foster trial, the prosecutor used peremptory strikes to exclude all four qualified African-American jurors. The defense complained but the prosecutor articulated nonracial reasons and the court accepted them.
In 2006, 19 years after the trial, the defense obtained the prosecutor’s notes. There was much to suggest race was the real reason for the peremptory strikes. The names of the African-American prospective jurors were marked with a “B” and highlighted in green. There was a key that said green highlighting meant black juror. The prosecution created strike lists where striking all of the African-American prospective jurors was prioritized over any white prospective juror. The African-American jurors were ranked and there were notes that saying “if it comes down to having to pick one of the black jurors [she] might be ok.”
For more on this topic, see . . .
United States Supreme Court to Consider SCHR Death
Supreme Court Takes On Racial Discrimination In Jury
Supreme Court to examine racial divide in jury selection
The Supreme Court Considers Race-Based ‘Strikes’ Again