In 1986, an all-white jury in Georgia convicted Timothy Foster, an African-American man, for the rape and murder of an elderly white woman and sentenced him to death. On Monday, in Foster v. Chatman, the Supreme Court held 7-1 that Foster’s prosecutors illegally excluded jurors on the basis of race when they used their peremptory challenges to remove all of the potential black jurors. The ruling sparked some optimism for new options in challenging racial bias in death sentences. But while the Court has certainly corrected an injustice for Foster, many criminal-justice practitioners know that the decision will have virtually no impact on discriminatory jury selection in the United States.
Lawyers are allowed a number of opportunities to strike jurors without “cause,” but the Constitution prohibits attorneys from using race or gender as the basis for these peremptory strikes. Decades after Foster’s trial, his lawyers discovered that during jury selection, the prosecutors in his case made notations about the race of several potential jurors, by writing the letter “b” alongside their names and placing these jurors in a category labeled “definite no’s.” The prosecutors also highlighted certain jurors’ names in green, which indicated a black juror, according to a legend the prosecutors used. Ultimately, the prosecutors used their peremptory strikes to exclude every potential black juror. Chief Justice John Roberts, writing for the majority, concluded that, “The focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”
The Court’s ruling in Foster v. Chatman represents a victory for the defendant. Although his conviction was not vacated, the case will be remanded to the Georgia State Court, where Timothy Foster can now argue for a new trial that is (hopefully) not infused with the blatant racial discrimination that occurred during his first trial. But in short, this case represents a victory for only those defendants whose prosecuting attorneys use clumsy codes and highlighters—the ones whose discrimination is easily detected and preserved in the files. This is primarily because the Foster case, like other jury-selection cases, did not address the severe infirmities of the seminal 1986 case, Batson v. Kentucky, that set forth the current scheme for raising challenges to constitutionally impermissible uses of peremptory strikes.
To see the limits of the Foster holding, it is necessary to understand a few basic facts about jury selection and the challenges a defendant faces in proving a successful claim under Batson. In jury trials, lawyers for the prosecution and the defense are allowed to challenge jurors for cause. The “cause” for removal is likely familiar to anyone who’s been considered for a jury: reasons such as a prospective jurors’ relationship with one of the parties or lawyers, or the jurors’ statements that they are unable to follow established law when hearing a case. But lawyers for the prosecution and defense may also use peremptory challenges to strike jurors. These peremptory strikes, as the name indicates, normally require no explanation.