In this morning’s New York Times, NAFUSA member Larry Thompson (ND Georgia, 1982-1986 and DAG 2001-2003), pubished an OpEd entitled How America Tolerates Racism in Jury Selection. The Supreme Court is hearing oral arguments this morning in Foster v. Chatman, “a case that challenges the all-too-common practice by which prosecutors deliberately exclude African-Americans from criminal juries.”
The 1986 case of Batson v. Kentucky was thought to have outlawed this practice, but Thompson argues that prosecutors routinely ignore that decision. Timothy Foster was convicted and sentenced to death by an all-white jury in Georgia 30 years ago.
In at least six different ways, the prosecutors singled out eligible black jurors: Notes from the jury selection list show they marked their names with a “B” and highlighted them in green on four separate copies; circled the word “black” on their juror questionnaires; noted several as “B #1,” “B #2”; ranked potential black jurors against one another “in case it comes down to having to pick one of the black jurors”; and wrote “Definite NOs” on the list of priority strikes, which had all four possible black jurors.
Although the prosecution has never admitted that race played a role in selecting a jury for Mr. Foster’s trial, some of its “race-neutral” reasons for strikes were inaccurate and inconsistent.
For example, prosecutors struck a black juror for being a social worker — but she was a teacher’s aide. Meanwhile, prosecutors accepted every white teacher and teacher’s aide in the jury pool.
When the prosecutors asked a white juror and a black juror whether the defendant’s age, which was close to that of their children, would be a factor in the sentence, the black juror said “none whatsoever” but was struck based on his son’s age. The white juror answered “probably so” and was accepted.
Along with other former prosecutors, I joined a friend-of-the-court brief in support of Mr. Foster. We recognize, and refuse to condone, the blatant unconstitutionality of the prosecutorial misconduct in this case. Moreover, my own experience suggests that discrimination in jury selection is indeed a national problem, despite over a century of attempted legislative and judicial remedies.
The Georgia courts have all ruled in the state’s favor. But the jury selection notes, discovered by Foster’s attorneys through Georgia’s open-records law, casts new light on the practice.