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Opinion analysis: Telltale files on race-based jury selection


The Supreme Court made a new effort on Monday to restrict prosecutors’ power to strike black jurors in a racially sensitive case, but the result was so tightly focused on what happened at just one trial that it was doubtful that the new ruling would do much to end the practice.  What made the difference this time, it appeared, was defense lawyers’ discovery of telltale files obtained from prosecutors years after the trial was over.

That may not happen again, but at least not often.  Even if prosecutors were deliberately trying to keep all blacks from serving on the jury in this specific Georgia murder case, as the Supreme Court found on Monday, they also have contended that they created the files as they were trying to figure out how to deal with race in jury selection under a then-recent Supreme Court ruling.  With that ruling condemning a racial motive, it is doubtful that prosecutors in many cases since then would create such revealing files, with clear markings next to the names of potential black jurors to be stricken from the jury pool.

The decision in Foster v. Chatman dealt with the trial practice of “peremptory strikes” of members of a jury pool — that is, striking a pool member without giving a reason to do so.  Until the 1986 ruling in Batson v. Kentucky, the use of such strikes could not be challenged.

The Batson decision, however, made it unconstitutional to do that intentionally, when race is the motive.  In today’s decision, the Court ruled that the conviction and death sentence twenty-nine years ago of a young black man, Timothy Tyrone Foster of Rome, Ga., for murdering an elderly white woman was unconstitutional, based on the use of peremptory strikes to keep all blacks from serving on the jury.  The Justices voted seven to one for that conclusion.

It was unclear, however, whether the decision will actually nullify Foster’s conviction or his death sentence.  That’s because two Justices suggested that state courts in Georgia may yet be able — when the case returns to them — to scuttle Foster’s challenge on a procedural point under state law.  That procedural point was not enough to keep the Court from hearing Foster’s challenge to the selection of his jury, but it conceivably could be used by prosecutors to sustain the guilty verdict and sentence after all.  The procedural theory for such a result would be that Foster was not free to reopen the jury-selection issue after losing on it in an earlier challenge in state courts.

Chief Justice John G. Roberts, Jr., who wrote the majority opinion, rejected the state’s argument that the same procedural flaw denied the Court jurisdiction to rule in the case (a denial of jurisdiction that only one Justice, Clarence Thomas, would have supported).  But Roberts did not answer the point — made by Justice Samuel A. Alito, Jr., and repeated by Justice Thomas — that the procedural law may yet mean that Foster had forfeited his right to challenge the use of race in picking his jury.

While Justice Alito supported the result reached in the majority’s opinion — that is, that a violation of the Batson decision had occurred at Foster’s trial — he did not support the majority’s reasoning and separately raised the question of whether Foster’s claim should be rejected when the case is returned to state courts.  Justice Thomas filed a dissenting opinion, in which he not only argued that the Court lacked jurisdiction, but also disagreed that a Batson violation had occurred at all.

Roberts’s opinion for the Court was joined in full by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, Anthony M. Kennedy, and Sonia Sotomayor.  The Chief Justice devoted page after page to a strictly case-specific review of how prosecutors had prepared for the jury-selection part of the trial, but also how race had figured into that when the process began.  Ultimately, the Court found that, while all of the five potential black jurors had been kept off the jury for racial reasons, the proof was clear at least as to two of those jurors that there was no reason but race for excluding them.

Because the opinion hewed so closely to the evidence in Foster’s case, the Chief Justice made no attempt to add further to the scope of the Batson analysis.  Its impact seemed likely to be confined to other cases where race was so vividly present in the process.

The Foster case was the longest pending of this Term’s remaining cases for decision; it was argued early in November.  The lengthy opinions that emerged Monday clearly explained the delay in preparing it.  The Court plans to issue the next round of opinions in argued cases next Tuesday, after taking next Monday off for the Memorial Day holiday.

The Court also issued orders Monday in a series of criminal cases that it had examined repeatedly over its past twelve Conferences, and — in some of them — earlier than that.  The eight cases covered by new orders are all sequels to the Justices’ ruling on January 25 in Montgomery v. Louisiana.  That decision applied to earlier cases the 2012 decision in Miller v. Alabama, declaring unconstitutional — in most cases — a life-without-parole prison sentence for juveniles who committed murder.

The Court’s action on the eight sequels, returning all of them to lower courts to consider the impact of the Montgomery ruling, produced a lively dispute — between Justices Alito and Thomas on one side and Justices Sotomayor and Ginsburg on the other — about whether juveniles whose death sentences were reduced to life without parole before Montgomery are entitled to any further consideration of whether the life-without-parole sentence was justified.

Thomas and Alito suggested that those youths may have had all the individualized consideration to which they are entitled, without further review under Montgomery. Sotomayor and Ginsburg disagreed, saying the fact-finders in those earlier cases did not have the full understanding that came with Montgomery of how to deal with juveniles sentenced to prison for life, with no chance of release.

Recommended Citation: Lyle Denniston, Opinion analysis: Telltale files on race-based jury selection, SCOTUSblog (May. 23, 2016, 2:22 PM),