“Implausible,” “fantastical,” “intricate,” and “nonsense.” This is how Justice Roberts described the myriad explanations given by Georgia for the state’s peremptory challenges of black jurors in Timothy Foster’s 1987 trial. It turns out not to have been true that Marilyn Garrett was stripped of her opportunity to serve as a juror because she was “curt,” or “disrespectful,” or “divorced.” It wasn’t true that Eddie Hood was axed because he failed to make eye contact with the prosecutor. No, the reasons offered by the prosecution – in court and in writing – were pretextual, designed to mask the operation of purposeful racial discrimination. The verdict of guilt and the sentence of death passed down by an all-white jury in the murder trial of Mr. Foster, who is black, cannot stand.
The uncovering of what happened at Mr. Foster’s trial took almost 20 years. Some facts were clear at the time. Of the prospective jurors qualified to serve in his trial, four were black. The prosecution was allocated ten peremptory challenges, and used four of them to bring about an all-white jury. Other details became clear only later. In 2006, a cache of documents from the prosecution’s files was uncovered by a request made under Georgia’s Open Records Act. It turns out that on juror questionnaires the race of black prospective jurors had been circled, and on juror lists the names of black prospective jurors had been highlighted in green. A helpful key indicated that the green highlighting “represents blacks.” These notations contrasted sharply with the prosecutor’s assertion during jury selection that, when selecting jurors, “I look at it color-blind.” The file’s “persistent focus on race” contributed to Justice Roberts’s conclusion that the peremptory challenges of Garrett and Hood (the only two challenges being considered by the Supreme Court) were “motivated in substantial part by discrimination,” and thus violated Batson v. Kentucky.
This is a victory, of course, for Mr. Foster, whose lawyers objected not only to the peremptory challenges but also to the prosecutor’s apparent attempt to stir the racial sensibilities of the all-white jury, in his exhortation that the jurors should impose a death sentence to “deter other people out there in the projects.” (Mr. Foster’s brief points out that ninety-percent of the families living in the local housing projects were black.).
It is a victory for his lawyers at the Southern Center for Human Rights. Establishing on appeal that a trial court incorrectly rejected a Batson claim is hard: significant deference is given to trial judges in this area, on the theory that they are in the best position to assess prosecutor and juror. (The trial judge in this case found that “knowing the nature of the crime and this prosecutor,” the state’s reasons were “credible” and race-neutral. The trial judge knew at least one of the prosecutors “a long time.”). In prior cases, appellate courts have found prosecutorial justifications “lame,” “thin,” and “highly suspect,” and still not awarded relief. It is hard, too, when the decedent is a 79-year-old white woman named Queen Madge White, a retired and widowed elementary school teacher, who on the night of her death had sung in her choir and spoken on the telephone with her sister. The Southern Center beautifully exposed the ways in which the prosecutorial justifications “come undone”, as Justice Roberts put it. In connection with Ms. Garrett, for example, Mr. Foster’s attorneys wrote:
“[District Attorney] Lanier mentioned that Garrett was divorced, but he accepted three of the four white prospective jurors who were divorced. He also said he struck Garrett because defense counsel did not ask her any questions about insanity, but they did, or alcohol, but they did. He added that defense counsel did not ask Garrett many questions about publicity, but they asked her several questions about publicity and learned that she knew little about the case.”
In connection with Hood, they unearthed some copy-and-pasting:
“Lanier lifted [one of his many explanations] verbatim from a reported case, saying
that Hood 'avoided eye contact with the prosecutor' and that 'as a personal preference, eye contact is highly valued as a jury selection technique.'”
(An earlier case had quoted a prosecutor as saying of a potential juror that “She avoided eye contact with the prosecutor. As a personal preference, eye contact is highly valued as a jury selection technique.”)
It is a victory of sorts—or at least a long-delayed official acknowledgement of unconstitutional discrimination—for Marilyn Garrett, who has recounted her memories of jury selection. Thirty years and she still recalls that she felt as though the prosecutors treated her “like I was a criminal.” The record supports her account of a degrading process. As part of its argument that it was not discriminating on the basis of race, the state quoted from the prosecutors’ notes regarding these two jurors. Notes on Mr. Hood say “No eye contact . . . strange eyes – roll round and round and bug out.” Notes on Ms. Garrett say “Broadface – would not look at [court] during [voir dire]. Very short answers – almost impudent.” Indeed, as Mr. Foster’s counsel pointed out, the prosecutors “asserted that all four black prospective jurors were some combination of confused, incoherent, hostile, disrespectful, and nervous, and that three of the four did not make sufficient eye contact.”
But how long this victory took. Mr. Foster, who is now 48, was 18 years old when he was arrested; 19 when the jury sentenced him to death. Batson, too, was young in those days. The case had been decided the year before Mr. Foster’s trial, a fact used in the state’s Supreme Court briefing, in a fascinating attempt to find a compelling narrative amidst this mess. (“Georgia prosecutors – having received no additional guidance from this Court or the Georgia Supreme Court on implementing Batson could not know with certainty what they had to show in the second and third steps of the Batson Inquiry”). The case was so recent that the Supreme Court had not yet prohibited gender-based discrimination in peremptory challenges, thus permitting the prosecution to argue that this wasn’t race discrimination: it was only gender discrimination. One prosecutor pointed out that three of the four blacks were women, and offered reasons for his reliance on this criterion: “Women have a tendency in a case of this nature where the death penalty is being sought – they have serious reservations, time conflicts or whatever it may be, but that is what I look at when I am trying a death penalty case.”
The sorrowful inadequacy of Mr. Foster’s delayed victory becomes still clearer when one investigates some of the reasons for this delay. First, Mr. Foster is, as his lawyers put it, “intellectually limited,” and the legal implications of this took some time to resolve. Is he intellectually limited to the extent that his execution would be unlawful? The Georgia court system put Mr. Foster’s other post-trial claims on ice while it investigated that question. He has “received IQ scores ranging from 58 to 80 throughout his life,” and the jury deciding this issue heard expert testimony that his “age-equivalent scores” were as follows: “eight years, eight months in the communication domain; five years, nine months in the daily living skills domain; and five years, eight months in the socialization skills domain.” This testimony was not enough, however, to persuade the jury.
Second, the fight to expose the prosecutorial notes that today helped bring Mr. Foster a victory was a long one. Justice Ginsburg had a simple question at oral argument, “Why weren’t the notes turned over earlier?” It was not for want of trying by the defense. Even before trial, Mr. Foster’s attorney suspected that race discrimination would shape his client’s jury. He filed a “Motion to preclude the prosecution from using its peremptory challenges to exclude blacks,” making points such as this:
2. The District Attorney’s office in this County and his staff have over a long period of time excluded members of the black race from being allowed to serve on juries with a black Defendant and a white victim. This practice follows two centuries of discrimination against black people in every aspect of the criminal justice system. . .
3. It is anticipated that the District Attorney’s office will attempt to continue its long pattern of racial discrimination in the exercise of its peremptory challenges.
The motion did not work. At trial, Mr. Foster’s counsel raised a Batson claim, and the claim was denied. Sensing that there might be something of interest in the notes the prosecutors kept looking at when offering their justifications, his counsel filed a post-trial motion for discovery, asking for an in camera review of the notes. Prosecutors resisted, with Lanier even volunteering to testify about jury selection as long as the defense did not get to see his notes. His objections were honored, and the notes sat undisturbed in the prosecutor’s office for the next nineteen years. Even once the notes had been turned over, the state fought (unsuccessfully) to keep them from the habeas court’s consideration, claiming that the issue had been addressed on direct appeal.
Twenty-nine years have passed since Mr. Foster’s trial, but as his case returns to the Georgia court system, it remains unclear how much has changed. Mr. Foster’s counsel briefed this as an “extraordinary” case, but it may be extraordinary less because of the purposeful discrimination than because it could be proved. With every indication that purposeful discrimination in peremptory challenges remains rampant, Mr. Foster’s case may – and should – prompt renewed scrutiny of discrimination in jury selection. Some have already used this case to support the argument that peremptory challenges should be abolished, but that response would bring a downside: it would involve responding to prosecutorial abuse by removing a tool not only from prosecutors but also from defense attorneys, whose roles and responsibilities are quite different from those of the prosecution.
We need, rather, to focus with urgency on how the prosecutorial duty “to do justice” should be interpreted in the context of the peremptory challenge. To start with trial prosecutors, the only amicus brief at the merits stage was filed in support of Mr. Foster by a group of former prosecutors, whose points were very clear: “the evidence in this case conclusively shows a Batson violation,” and the justifications used were pretexts that had no “basis in accepted trial strategy.” Peremptory challenges should be used not on the multifarious grounds tossed out by the prosecutors in this case, but only to eliminate potential jurors “whose impartiality is doubted,” or whose bias is “clear.” Will currently-serving prosecutors endorse similar sentiments?
And what about appellate advocacy? The state in this case, faced with a smoking gun or two, seems to have scrambled around for whatever argument it could find to oppose Mr. Foster. It argued before the Supreme Court that it was not in order to commit purposeful discrimination, but rather to defend against such a charge, that the prosecution noted the potential jurors’ races: “How could the prosecution respond to a challenge to the racial composition of the jury array without noting which prospective jurors were black?,” it asked. The problem, noted by Mr. Foster’s attorney and Justice Roberts, is that never in the nearly thirty years of litigating this case, in all the state’s many attempts to explain what happened, had this explanation been proffered. In the Supreme Court’s words, this effort “reeks of afterthought.” Is there a world in which the state might in a case like Mr. Foster’s not seek the most plausible way to oppose, but instead might say we can’t sustain this; we concede; this was wrong?