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.”


Linda Greenhouse, The Supreme Court’s Gap on Race and Juries, The New York Times, Aug. 6, 2015; Tony Mauro, Former Prosecutors Side with Defendant in Jury Selection Bias Case, National Law Journal, Aug. 52015.

For a link to the briefs in Foster v. Chatman, click here.