The Supreme Court and the case of an all-white jury

The state of Georgia last week defended the death sentence of an African-American man convicted in 1987 by an all-white jury. The man’s lawyer claims the state meant to exclude black jurors, but the state says the jury’s racial makeup was a coincidence.

“Prosecutors came to court on the morning of jury selection determined to strike all the black prospective jurors,” said Stephen Bright, who represents defendant Timothy Foster. A court convicted Foster in 1987 of murdering Queen White, an elderly white woman. Foster, now 47, was 18 at the time.

In 1986, the same year Foster carried out his crime, the U.S. Supreme Court ruled lawyers could not exclude jurors solely based on race.

Prior to that ruling, lawyers could use “peremptory strikes” to eliminate a certain number of jurors without giving a reason. At Foster’s murder trial, prosecutors used their peremptory strikes to dismiss the four qualified African-American jurors. Defense attorneys objected, shifting the burden to prosecutors to show the dismissals weren’t due to race.

Prosecutors gave various reasons: This one didn’t make eye contact, that one looked bored, that juror had a cousin in jail. The trial judge accepted them.

At the Supreme Court last week, Justice Stephen Breyer compared the prosecution’s reasons for dismissing the jurors to excuses children make for not doing their homework. And Justice Samuel Alito was incredulous.

“What about giving a reason for dismissing her that she was close in age to the defendant? She was in her 30s. He was 18 or 19,” he said.

Georgia Deputy Attorney General Beth Burton argued prosecutors had plausible explanations that had nothing to do with race.

“Throughout, the overall theme was, we don’t want younger jurors. We’re looking for older jurors closer to the age of the victim,” Burton said.

The prosecutors dismissed one potential juror because her cousin was in legal trouble.

“I have cousins who I know have been arrested, but I have no idea where they’re in jail. I hardly—I don’t know them. But [prosecutors] didn’t ask any questions. Doesn’t that show pretext?” Justice Sonia Sotomayor asked. It turned out prosecutors didn’t even know the juror’s cousin was in jail until after the trial, underscoring the likelihood pretext was in play.

Foster’s attorneys managed to get the prosecution’s notes about the jury selection process under the Georgia Open Records Act. Those notes showed every African-American juror’s name flagged in green, with a note on which one to keep if absolutely required.

At the Supreme Court, arguments bogged down over technical aspects of how lower courts denied Foster’s new challenge. Liberal justices leaned toward figuring out a way to rule on the merits despite legal technical obstacles; conservative justices leaned toward letting lower courts figure those out before stepping in.

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