The process of selecting juries to try criminal cases has become, at least in high-profile cases, a science of human profiling. Both sides — prosecutors and defense lawyers — try to make educated guesses about how potential jurors may react if seated, at times using behavioral experts to improve the guessing. The final shaping of the jury depends heavily upon how each side actually weeds out the jurors it doesn’t want.

On Monday, the Supreme Court will explore how a court can tell whether the weeding out was intended to unconstitutionally influence the jury’s racial make-up. That can be a major source of controversy when — as in Monday’s case, Foster v. Chatman — a black man is put on trial for the death of a white woman.

For much of the twentieth century, lawyers on each side of a criminal trial could exclude potential jurors without ever having to offer a justification — a method known as the “peremptory strike.” Each side had a specific number of such “strikes” to use as it wished, for whatever reason; once a prosecutor or defense lawyer used a “strike” to remove someone from the jury pool, that strike could not be challenged.

The summary “peremptory strikes” were different from another selection method: striking “for cause.” In that situation, either side could ask the judge to exclude a specific person, but it had to give a reason for doing so; the judge could accept that reason as sufficient or allow the juror to remain available.

No one, of course, would expressly ask the judge to exclude someone because of his race. That might be the real reason for a challenge for cause, but some other reason would actually be offered. Since a Supreme Court decision in 1880, it has been unconstitutional to exclude a potential juror solely because of that individual’s race.

Nearly three decades ago, the Court took a major step toward bringing into the open the hidden use of race to shape juries through the use of “peremptory strikes.” The reality is that, most often, complaints about the use of race in composing a jury are made by defense lawyers against prosecutors in cases in which the accused is a minority.  (Lawyers defending minorities may themselves sometimes seek to do some racial profiling, excluding white jurors, but that appears to happen less often.)

Ruling in the case of Batson v. Kentucky in 1986, the Court set up a three-step process for testing complaints about race-based use of peremptory strikes.

First, the accused has to show membership in a specific racial group, and make the point that prosecutors had used their peremptory strikes to preclude all or most members of that race from serving as jurors.

Second, it is then up to prosecutors to offer non-racial reasons for using those strikes.

Third, the task falls to the trial judge to decide whether, taking everything into account, the defense lawyers had succeeded in showing that prosecutors had intentionally kept minority jurors from serving because of their race, despite prosecutors’ attempts to provide race-neutral explanations.

The case now coming before the Court is unusual in a couple of respects as a test of how the Batson analysis is to be made. The most important novelty of the case is that by using a state open records law, defense attorneys for Timothy Tyrone Foster of Rome, Georgia, were able to obtain copies of prosecutors’ trial notes focusing on the five black potential jurors in the jury pool. (Generally, neither legal team has a duty to share its trial preparation files with its adversary.)

Depending upon how one interpreted those notes, they might — as defense lawyers argued — provide tell-tale indications that prosecutors were in fact inventing race-neutral justifications for keeping every one of the black potential jurors from serving on the jury for their client, who is also black. Prosecutors, of course, argued that they were just preparing for the very real chance that Foster’s defense team would raise a Batson challenge — indeed, a challenge that Foster’s lawyers had signaled even as the trial opened.

One of those five jurors dropped out as a result of a for-cause challenge, and prosecutors’ peremptory strikes excluded the other four, resulting in the all-white jury that tried Foster for killing an elderly white woman, a conviction that led to a death sentence.

The other unusual factor about this case is that the Court will be considering whether information outside of the three-step Batson inquiry about jury selection can help answer the question whether a trial played out amid racial tension, which could buttress the defense team’s claim that African Americans were intentionally kept from the jury on account of their race.

The key fact in that scenario was a comment by one of the prosecutors in an argument to the jury to try to convince it to support a death sentence for Foster. The prosecutor said: “We have got to believe that if you send somebody to death, that you deter other people out there in the projects from doing the same again.”

“[T]he projects,” defense lawyers said, was a reference to public housing projects in the northern neighborhood in Rome, Georgia. More than ninety percent of the units in this neighborhood were occupied by black families. That comment had a genuine effect, the defense team contended, because the jury was all white and would have understood this reference negatively.

Timothy Foster himself lived in this neighborhood, and the victim was slain in her home near those developments.

As this case has unfolded in the Supreme Court, in filings at both the petition and merits briefing stages, the two sides have given starkly conflicting interpretations of the third and final step in the Batson framework —  that is, whether Foster’s lawyers had succeeded in showing that race had motivated prosecutors’ strikes of all of the African Americans in the jury pool.

Foster’s strategy has been to use the notes obtained from prosecutors to show how potential jurors were treated differently according to their race. Countering that, prosecutors have dismissed the significance of those notes as incomplete and not even clear as to who wrote them and why; instead, they have defended the explanations that were originally offered for each of the strikes to show that they were not race-specific at all.

Foster and his lawyers also have relied upon a statistical contrast; one hundred percent of black potential jurors were struck, compared to strikes of only sixteen percent of the white potential jurors. “Happenstance is unlikely to produce this disparity,” Foster told the Court.

Foster has also noted in his filings that prosecutors gave at least eight and as many as twelve separate explanations for each strike of a black juror from the pool, suggesting that this made none of the explanations credible as neutral grounds for exclusion. Some of the reasons for excluding black jurors would have applied to white jurors as well, but they were not excluded, Foster contended.

The prosecutors have answered that argument by contending that it is standard practice for prosecutors, when preparing for a possible Batson challenge, to compile as many race-neutral reasons as they can to counter any thrust that the defense team makes on that point. A list of such reasons for each juror can be lengthy because prosecutors cannot fully anticipate just what shape the defense challenge will take, according to prosecutors.

Because Foster’s trial occurred just months after the Court’s decision in Batson, mandating an entirely new regime for judging peremptory strikes, prosecutors have sought to show that their team at the trial had little opportunity to prepare for handling the new system.

While Foster has sought to give heavy emphasis to the prosecutor’s comment about deterring crime by people living in “the projects,” prosecutors have made an equal effort to downplay the comment’s significance.  They did not mention it at all in initially opposing Supreme Court review, and confined their response to it in their merits brief to a single footnote, noting both that the comment had not been a part of the jury-selection process and that the victim had lived near the neighborhood.

In contrast to Foster’s efforts to portray the trial as deeply infected with race, the prosecution’s overall response is a highly detailed, point-by-point defense of the explanations given for the exclusion of black jurors. Moreover, the prosecution puts some stress on the fact that Foster has focused his case mainly on challenging only the reasons given for excluding two of the four black jurors.

As the Supreme Court reviews the case, it does appear that the Justices are going to have to delve deeply into the specific details of just how the jury-selection process was carried out, because the two sides’ interpretations of it are so different. It is not clear, before the argument is held, whether the Justices will give much attention to the prosecutor’s comment about “the projects,” because it came after the jury was chosen and the guilt phase of the trial was over.

Only one amicus brief was filed in the case, by eight former trial prosecutors, in federal and state courts (including noted author Scott Turow, himself a former federal prosecutor in Illinois). But it provided a sturdy defense of Foster’s portrayal of the racial overtones of jury selection, arguing that racial bias in selecting jurors remains a serious problem nationwide nearly three decades after the Batson decision. But its most salient point is that, if the record in this case does not convince the Court that “purposeful discrimination” had occurred here, then it “will render Batson meaningless.”

The case is scheduled for one hour of oral argument beginning at 10 a.m. Monday. Arguing for Foster will be Stephen B. Bright, president and senior counsel for the Southern Center for Human Rights in Atlanta. Arguing for the state will be a deputy attorney general, Beth A. Burton. Each will have thirty minutes of time.

Posted in Foster v. Chatman, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument preview: Race and the make-up of juries, SCOTUSblog (Oct. 30, 2015, 6:30 PM), http://www.scotusblog.com/2015/10/argument-preview-race-and-the-makeup-of-juries/