Racism Is Rampant In Jury Selection. The Supreme Court Can't Fix It.

The Constitution prohibits excluding jurors on the basis of race, but there isn't much the justices can do to remedy that.

Timothy Foster has spent almost 30 years on Georgia's death row. On Monday, his lawyer will appear before the Supreme Court to fight for his life.

That's because Foster v. Chatman, a high-profile case about racism in jury selection, is really not a case about racism in jury selection. It's a case about racism in the application of the death penalty.

Consider what Stephen Lanier, the prosecutor who tried Foster in 1987, told the all-white jury who heard the case. During the penalty phase of the trial, he said a death sentence was appropriate for Foster to send a message "to other people out there in the projects." Foster lived in government housing, and about 90 percent of his neighbors were black.

Or ponder a psychiatrist's testimony on Foster's behalf, who found he "was in the borderline range for intellectual disability" -- with an IQ range between 58 and 80 his entire life. The jury rejected it and voted for death anyway.

Or the very length of time Foster has spent on death row, or the reality he is only one of the 56 percent of those awaiting execution who are people of color, according to a recent NAACP Legal Defense Fund report.

There's a lot of things inherently suspect with the Foster case -- and the capital system in general -- and yet the Supreme Court on Monday will only be confronting the very limited issue of whether prosecutors improperly excluded on the basis of race all blacks who were perfectly capable of sitting in Foster's trial. This is a real problem that's still very much alive today.

Foster v. Chatman has been styled that way because that's how advocates chip away at the death penalty these days -- by showing how it's unconstitutionally stacked against some defendants and not others.

Eddie Hood was a potential juror in the murder trial of Timothy T. Foster, who was convicted and sentenced to death for the murder of an elderly white woman in 1987.
Eddie Hood was a potential juror in the murder trial of Timothy T. Foster, who was convicted and sentenced to death for the murder of an elderly white woman in 1987.

So far, the justices have heard or will hear a number of cases that attack the procedures states use in doling out death sentences, but none challenging the capital system itself. That case hasn't yet arrived, even though there's an open invitation to bring one to the table.

The Foster case presumably drew the court's attention because blatant examples of racial discrimination -- especially if a person's life is on the line -- tend to draw more scrutiny than subtler forms of bias in the administration of justice.

This one is the blatant kind. In 2006, Foster's lawyers got lucky when -- through an open-records request -- they got hold of the notes prosecutors made during jury selection in the case. To their surprise, they discovered that all the names of the potential jurors who were black were highlighted and marked with the letter B.

At the top of each juror list, a key indicated that green highlight meant the potential juror was black. Separate juror questionnaires had the word "black" circled. No black jurors sat in Foster's trial.

His lawyer before the Supreme Court, Stephen Bright, said in a brief filed with the court that this "evidence clearly establishes purposeful discrimination by the prosecution" -- particularly troubling if indeed the goal was to get the all-white jury to issue a death sentence and thus teach people "in the projects" a lesson.

If the justices side with Foster and rule that his trial violated the Constitution's promise of equal protection, then he'll likely get a new one and potentially skirt death that way. But can the Supreme Court do more and fix the law in order to keep this from happening ever again?

In court papers filed ahead of Monday's hearing, a group of former prosecutors urged the court to rule for Foster because "race discrimination persists in jury selection," and insisted that the court's prior ruling in Batson v. Kentucky remains "an important safeguard against" abuses in the jury system.

That case, decided one year before Foster was convicted, established that the Constitution prohibits lawyers from using so-called "peremptory strikes" to shut out potential jurors on account of their race -- the rationale being that no citizen can be denied an opportunity to serve on a jury.

Timothy T. Foster has been on Georgia's death row for almost three decades.
Timothy T. Foster has been on Georgia's death row for almost three decades.

The thing with peremptory strikes is that lawyers can use them to challenge potential jurors for almost any conceivable reason -- except a discriminatory reason, like race or gender. Since every lawyer wants to win a case, the only thing they have to do if the other side accuses them of discriminating against a juror is provide a "race-neutral" justification. And coming up with those justifications, it turns out, isn't really hard.

Over the years, both prosecutors and defense lawyers have gotten really good at excluding jurors by coming up with non-racial reasons on the fly: That juror looked funny. That lady in the back didn't seem really invested in the case. The gentleman with the glasses is too old.

In the Foster case, the prosecutor offered a litany of reasons to explain away his singling out of black members of the jury pool: The person's age. Their occupation. Church affiliation. Someone's appearance as "hostile." Whether they agreed with the death penalty. All of those, if believed by a judge, are perfectly permissible -- even if in the prosecutor's heart of hearts they're no more than bullshit.

But the other side is also prone to bullshit. Just like prosecutors have an interest in securing convictions by drawing a jury panel that's sympathetic to their case, defense lawyers too want jurors who will view their client favorably. And they may very well seek to exclude a white woman for the sheer reason that she's white, or fight to keep a black person on the panel because the accused is also black. Isn't that unconstitutional, too?

Though it's possible the Supreme Court will grasp the egregiousness of the Foster case and rule in his favor, it is far from clear if the justices will use his circumstances to fashion a practicable rule that would soften the edges of the problem nationwide.

Much like the death penalty, the use of race in jury selection seems like something the court can only chip away at -- not fully eradicate.

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