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Supreme Court Sets Aside Death Penalty Conviction on Batson Grounds

The U.S. Supreme Court, in a 7-1 decision, left no doubt that it did not believe prosecutors’ assertions that race was not a factor during jury selection in a death penalty case. Chief Justice John Roberts, writing for the majority in a May 23, 2016 decision, found that prosecutors had impermissibly excluded prospective jurors on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

At the time of his arrest in 1986, Timothy Tyrone Foster was 18 years old, black and facing capital murder charges. In the course of jury selection, prosecutors used peremptory challenges to exclude all four prospective black jurors. Foster was convicted by an all-white jury and sentenced to death; he lost his state appeals and his habeas petition was rejected. However, a public records request under Georgia’s Open Records Act uncovered evidence that the black jurors were excluded on the basis of their race, contrary to Batson.

Foster’s attorney had made a Batson motion at trial, which was denied. He raised the same issue on direct appeal before the appellate court and the Supreme Court of Georgia. During the state habeas proceeding, newly-obtained documents from the prosecution file disclosed that the names of all the prospective black jurors were highlighted in green and denoted with the letter “B,” and a draft affidavit from the prosecutors’ investigator stated, “If it comes down to having to pick one of the black jurors, [this one] might be okay.” Additionally, the documents contained notes regarding the Church of Christ affiliation of the black jurors, which said, “NO. NO Black Church,” with the word “Black” underlined.

The Supreme Court rejected arguments that Georgia state courts had objectively addressed the Batson claim and already disposed of it on the merits, asserting that the importance of the federal question allowed it to review the issue. The Court extensively examined the evidence and turned aside all of the prosecutors’ justifications for striking the black jurors.

“The contents of the prosecution’s file ... plainly belie the State’s claim that it exercised its strikes in a ‘color-blind’ manner,” the Supreme Court wrote. “The sheer number of references to race in that file is arresting. The State, however, claims that things are not quite as bad as they seem. The focus on black prospective jurors, it contends, does not indicate any attempt to exclude them from the jury.”

In rejecting that argument, the Court found “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.” The high court concluded that “prosecutors were motivated in substantial part by race,” noting two of the contested juror strikes “on the basis of race are two more than the Constitution allows.”

The ruling does not change the rules regarding peremptory challenges, but definitively reasserts the Supreme Court’s decision in Batson with respect to ensuring race-neutral jury selection.

“The practice of discrimination in striking juries continues in courtrooms across the country,” observed Foster’s attorney, Stephen Bright with the Southern Center for Human Rights, who said he expects his client to receive a new trial following remand.

The sole justice who dissented in the case was Clarence Thomas, the Supreme Court’s only black member. See: Foster v. Chatman, 2016 U.S. LEXIS 3486 (May 23, 2016).

 Additional sources: Associated Press,

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Related legal case

Foster v. Chatman