Ex-Prosecutors Ask Supreme Court to Overturn Georgia Death Sentence for Race Discrimination in Jury Selection

Eight for­mer state and fed­er­al pros­e­cu­tors have asked the U.S. Supreme Court to over­turn Timothy Foster’s death sen­tence because Georgia pros­e­cu­tors dis­crim­i­na­to­ri­ly used their dis­cre­tionary strikes dur­ing jury selec­tion in his case ​“to ensure that a black defen­dant accused of a crime against a white vic­tim would face an all-white jury.” In their ​“ami­ci curi­ae” (friends-of-the-court) brief in Foster v. Chatman, the for­mer pros­e­cu­tors said that ​“race dis­crim­i­na­tion per­sists in jury selec­tion” near­ly three decades after the Supreme Court pro­hib­it­ed the racial­ly dis­crim­i­na­to­ry use of jury strikes in Batson v. Kentucky.

In an op-ed in the New York Times, Supreme Court cor­re­spon­dent Linda Greenhouse argues that Batson has­n’t worked in com­bat­ting dis­crim­i­na­tion. “[B]lacks are still being exclud­ed from juries at dis­pro­por­tion­ate rates, espe­cial­ly when the defen­dant is black and the crime vic­tim is white.” Greenhouse writes, ​“Prosecutors have learned to game the sys­tem by pro­vid­ing expla­na­tions” for strik­ing black jurors that ​“judges who appear all too eager to be per­suad­ed” accept as race-neutral.

Greenhouse describes Foster’s case as ​“unusu­al­ly com­pelling” because ​“the pros­e­cu­tor’s notes from the jury selec­tion” — which, among oth­er things, iden­ti­fied each black prospec­tive juror with the let­ter ​“B,” assigned each a num­ber, and high­light­ed their names in green ink — pro­vide ​“a road map of dis­crim­i­na­tion.” She says the case should ​“jump-start a pub­lic con­ver­sa­tion” on elim­i­nat­ing dis­cre­tionary jury strikes altogether. 

The for­mer pros­e­cu­tors con­clude, ​“If this Court does not find pur­pose­ful dis­crim­i­na­tion on the facts of this case, then it will ren­der Batson meaningless.”