The U.S. Supreme Court heard oral argument in Foster v. Chatman on November 2. Timothy Foster, an intellectually limited black teenager charged with killing an elderly white woman, was convicted and sentenced to death in 1987 by an all-white jury after Georgia prosecutors struck every black member of the jury pool. Foster argued that prosecutors impermissibly exercised their strikes on the basis of race, in violation of the Court’s 1986 decision in Batson v. Kentucky, to keep African Americans off his jury. Press reports described the Court as having “signaled support” for Foster during the course of the argument, with at least six justices indicating that black jurors had been “improperly singled out and kept off the jury.” Justice Elena Kagan called the case as clear a violation of the Court’s prohibition against racially discriminatory jury selection “as a court is ever going to see.” The prosecution’s notes of jury selection, obtained through an open records request nearly 20 years after Foster’s trial, showed that prosecutors had highlighted in green the names of every black juror, included all 5 black jurors on the top of a list of 6 “definite no’s,” and ranked black jurors against one another “in case it comes down to having to pick one of the black jurors.” In an op-ed in the New York Times, former deputy U.S. Attorney General Larry D. Thompson said prosecutors “routinely ignore” Batson and exclude black jurors for any number of ostensibly “race neutral” reasons. This is problematic, he says, “because interracial juries make fewer factual errors, deliberate longer and consider a wider variety of perspectives than all-white juries.” Studies in nine southern death penalty states have documented “rampant” race discimination in jury selection, Thompson writes. However, “Mr. Foster’s case offers a rare instance of extraordinary and well-documented misconduct.” Thompson concludes that “A judicial system that allows for obviously discriminatory jury selection is intolerable. If the court cannot establish discrimination in this case, then the lofty language of Batson rings hollow.”

(A. de Vogue, “Jury and racial bias debate comes to the Supreme Court,” CNN, November 2, 2015; M. Sherman, “Supreme Court troubled by DA’s rejection of black jurors,” Associated Press, November 2, 2015; L. Thompson, “How America Tolerates Racism in Jury Selection,” The New York Times, October 30, 2015.) See Race and U.S. Supreme Court. For additional resources on the case, see Foster v. Chatman.

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