Foster v. Chatman: A Stark Example of How Prosecutors Evade Batson

Timothy Tyrone Foster, an 18-year-old black man, was convicted of capital murder of a white woman, 79-year-old Queen Madge White, and sentenced to death by an all-white jury in Georgia in 1987. Like countless known and unknown black men before him, Foster was sentenced to death for harming a white woman by a group of white people. In 1880, the U.S. Supreme Court considered a statutory scheme that excluded all except white men over the age of 21 from the venire in West Virginia, and held that race-based jury selection was unconstitutional. In response, state legislatures and state prosecutors set out to develop other less obvious schemes to exclude black citizens from juries. For over 100 years, prosecutors leaned heavily on the peremptory challenges, traditionally completely discretionary, to strike black jurors simply because of their race. But in 1986, in Batson v. Kentucky, the Court prohibited the use of discretionary peremptory challenges simply to exclude a black juror from the venire. For the past three decades prosecutors have had to hide their racist motivations in jury selection behind vague, race-neutral justifications. Apparently, many still struggle to hide their their true motivations for striking black jurors, as evidenced by the need for the one-page handout from a 1995 North Carolina Conference of District Attorneys state-wide training session titled “Batson Justifications: Articulating Juror Negatives.” This handout served as a quick-reference guide for prosecutors who eight years after the Court decided Batson still could not conjure up plausible excuses to hide their racism when striking black jurors.

The prosecutor in Foster’s case did not have such a handy, quick-reference guide when he confronted a Batson challenge from defense counsel after jury selection. When questioned by the trial judge about why he chose to strike all four black jurors from the venire with his discretionary peremptory challenges, he fumbled the answers. And he fumbled badly, misstating the answers from the black jurors and offering a laundry list of reasons, many of them wholly implausible. But the prosecutor summarized the toothless rule from Batson accurately and plainly: “All I have to do is have a race-neutral reason, and all of these reasons that I have given the court are racially neutral.” Based on this assertion at trial, the judge found no Batson violation, seated the 12 white jurors, and watched while they sentenced Foster to death. Frankly, based on the language of Batson, the record demonstrates no obvious constitutional violation.

But the prosecutor’s personal notes from voir dire and jury selection are available for inspection as part of the Court’s record, and they reveal the pretext of his implausible explanations for striking all four black jurors from the pool. A review of those notes makes it is easy to see why he fumbled when searching to offer race-neutral explanations for striking all of the black jurors (and why he spent two decades fighting to keep his notes a secret). In stark black and white, his notes reveal his overt racial motivations for striking the four black jurors. He identified all four black members of the venire with a B, placed them on the list of “definite NOs,” and he ranked them in case he had to put one black juror in the box. To think, if he had only had the benefit of some quality, post-Batson training, this case might never have reached the Supreme Court. If he had been more careful to keep his notes race-neutral (or to destroy them after the trial ended), the Justices might have never considered all of the ways that prosecutors might develop to skirt the heart of Batson, that striking jurors based on race is unconstitutional.

The prosecutor's notes from voir dire and jury selection in Tyrone Foster's case.

That all-white juries still frequently sit in judgment of black defendants throughout the South speaks volumes to the quality of the Batson training offered to prosecutors and to the uselessness of the scheme of review set out by the Court in Batson. Most Batson challenges are no more than a tedious exercise for criminal trial judges, who call counsel to the bench, where counsel and the judge whisper out assertions of race-based strikes followed by race-neutral explanations and, as happened in Foster, the judge accepts the prosecutor’s reasons for striking all of the black faces from the venire. But in Foster, the Court gets the rare glimpse inside the prosecution strategy to strike black jurors when prosecuting a black defendant. That the prosecutor kept these race-based notes bespeaks a frightening hubris about the widely accepted function of racism in criminal prosecutions.

The lone amicus filed in Foster v. Chatman offers an explanation of the practice underlying the detailed notes of the prosecutor. The eight former prosecutors who submitted the amicus maintain that the Court’s ruling in Batson v. Kentucky did little to end blatant race discrimination in jury selection where the accused was black. By citing study upon study, from scholars, the Equal Justice Initiative, and the state of North Carolina, the former prosecutors demonstrate, with statistical precision, shocking evidence of race discrimination, especially in the South. What most criminal defense attorneys know from courtroom practice – that prosecutors strike black jurors at an alarmingly high rate when prosecuting black defendants – may gain some attention because of this amicus filed by former prosecutors.

At Monday's oral argument, as the Justices considered whether the prosecutor had engaged in unconstitutional racial discrimination when selecting a jury for a capital murder case, they picked through the record, examining the specific “race-neutral” reasons that he offered to the judge to see if those reasons were plausible.

Justice Sotomayor was able to reach beyond the language of Batson towards its promise of race-neutral jury selection by highlighting one of the reasons offered by the Foster prosecutor. During voir dire, one black juror said that she had a cousin in jail, and the prosecutor offered that tidbit as his “race-neutral” reason for striking her. Justice Sotomayor asked the Georgia lawyer how that reason, a cousin in jail, without more information was anything more than a pretext. She strengthened her point by offering that she has cousins who are in jail, cousins that she has not seen or spoken to in decades. Much has been written about this show-stopping comment from the bench. But the point of her comment has been overlooked – Batson v. Kentucky gave prosecutors a blueprint to strike jurors of color for purely racist reasons then hide behind a sham “race-neutral” explanation.Justice Sotomayor’s revelation gets at the heart of the beast – a bogus race-neutral explanation will never become a value-neutral judgment about a prospective juror of color unless this Court sets out a new, meaningful Batson rule.