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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