FOSTER v. CHATMAN, No. 14 – 8349

Cert. grant­ed May 26, 2015 as Foster v. Humphrey
Argument: Nov. 2, 2015
Decided: May 23, 2016

In a 7 – 1 deci­sion authored by Chief Justice Roberts, the Court grant­ed a new tri­al to Timothy Foster, an African-American defen­dant who was sen­tenced to death by an all-white jury after Georgia pros­e­cu­tors had struck every black prospec­tive juror in his case. The Court held that pros­e­cu­tors imper­mis­si­bly struck two African-American jurors on the basis of race in vio­la­tion of Batson v. Kentucky, which banned the prac­tice of exer­cis­ing dis­cre­tionary strikes (called peremp­to­ry chal­lenges) against poten­tial jurors on the basis of race. Foster chal­lenged the prosecution’s jury strikes as racial­ly dis­crim­i­na­to­ry at the time of jury selec­tion, but the tri­al court per­mit­ted the strikes. Nineteen years after the tri­al, his lawyers obtained the pros­e­cu­tors’ notes from jury selec­tion, which con­tained infor­ma­tion that con­tra­dict­ed the ​“race-neu­tral” expla­na­tions for the strikes that the pros­e­cu­tion had offered at trial. 

The notes reflect that the pros­e­cu­tion marked the name of each black prospec­tive juror in green high­lighter on four dif­fer­ent copies of the jury list; cir­cled the word ​“BLACK” next to the ​“Race” ques­tion on the juror ques­tion­naires of five black prospec­tive jurors; iden­ti­fied three black prospec­tive jurors as ​“B#1,” ​“B#2,” and ​“B#3”; and ranked the black prospec­tive jurors against each oth­er in case ​“it comes down to hav­ing to pick one of the black jurors.” Prosecutors said they struck each of the black jurors for race-neu­tral rea­sons and did not use the high­light­ed list in their final deci­sion. The Georgia Supreme Court upheld Foster’s con­vic­tion. Chief Justice Roberts held that the state court’s rul­ing was ​“clear­ly erro­neous.” ​“Foster estab­lished pur­pose­ful dis­crim­i­na­tion in the State’s strikes of two black prospec­tive jurors,” the Court wrote. ​“Evidence that a prosecutor’s rea­sons for strik­ing a black prospec­tive juror apply equal­ly to an oth­er­wise sim­i­lar non­black prospec­tive juror who is allowed to serve tends to sug­gest pur­pose­ful dis­crim­i­na­tion.” Among the rea­sons giv­en by pros­e­cu­tors for strik­ing one black juror, Marilyn Garrett, includ­ed her age and the fact that she was divorced, but they allowed three out of four divorced white jurors to serve, and also allowed ser­vice by white jurors of sim­i­lar age to Garrett. Justice Thomas dissented.

(See the pros­e­cu­tors’ juror list with black jurors high­light­ed.) See also Scotusblog​’s treat­ment of the case and DPIC’s post.