'BATSON' BARS RACIST JURY SELECTION

STRIKING BLACK JURORS DUE TO RACE STILL ILLEGAL Thursday, May 26, 2016 By Larry Delano Coleman, Esq. In a withering smack-down to the State of Georgia, the United States Supreme Court has reversed the murder conviction of a black, death-row inmate, and remanded his case for a new trial, based upon the prosecution’s racially discriminatory use of its peremptory challenges to strike four black venire members who were otherwise qualified to serve as jurors. The Supreme Court’s 7-1 decision (Thomas dissenting) rested upon its famous Batson v. Kentucky precedent, which had, decades ago, outlawed the discriminatory use of peremptory challenges in jury selection in criminal cases. Batson also set up a three-step process to assess whether such strikes were discriminatory or unbiased. The case is Timothy Foster v. Bruce Chatman, decided on May 23, 2016. The link to the opinion is http://www.supremecourt.gov/opinions/15pdf/14-8349_6k47.pdf In Batson v. Kentucky, 476 US 79, 106 S.Ct. 1712 (1986) the supreme court held that improperly excluding blacks from the juries of criminal defendants violates the equal protection and due process clauses of the fourteenth amendment. The Court declared: The “Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Snyder v. Louisiana, 552 U. S. 472, 478 (2008) (internal quotation marks omitted). Our decision in Batson v. Kentucky, 476 U. S. 79, provides a three-step process for determining when a strike is discriminatory: “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Snyder, 552 U. S., at 476–477 (internal quotation marks and brackets omitted). Procedurally, the case arose in this context, wrote Chief Justice John Roberts: “Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State exercised peremptory strikes against all four black prospective jurors qualified to serve. Foster argued that the State’s use of those strikes was racially motivated, in violation of our decision in Batson v. Kentucky, 476 U. S. 79 (1986). The trial court and the Georgia Supreme Court rejected Foster’s Batson claim. Foster then sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, renewing his Batson objection. That court denied relief, and the Georgia Supreme Court declined to issue the Certificate of Probable Cause necessary under Georgia law for Foster to pursue an appeal. We granted certiorari and now reverse.” Factually, the Supreme Court’s decision observed: On the morning of August 28, 1986, police found Queen Madge White dead on the floor of her home in Rome, Georgia. White, a 79-year-old widow, had been beaten, sexually assaulted, and strangled to death. Her home had been burglarized. Timothy Foster subsequently confessed to killing White, and White’s possessions were recovered from Foster’s home and from Foster’s two sisters. The State indicted Foster on charges of malice murder and burglary. He faced the death penalty. Foster v. State, 258 Ga. 736, 374 S. E. 2d 188 (1988). District Attorney Stephen Lanier and Assistant District Attorney Douglas Pullen represented the State at trial. Jury selection proceeded in two phases: removals for cause and peremptory strikes. In the first phase, each prospective juror completed a detailed questionnaire, which the prosecution and defense reviewed. The trial court then conducted a juror-by-juror voir dire of approximately 90 prospective jurors. Throughout this process, both parties had the opportunity to question the prospective jurors and lodge challenges for cause. This first phase whittled the list down to 42 “qualified” prospective jurors. Five were black. In the second phase, known as the “striking of the jury,” both parties had the opportunity to exercise peremptory strikes against the array of qualified jurors. Pursuant to state law, the prosecution had ten such strikes; Foster twenty. See Ga. Code Ann. §15–12–165 (1985). The process worked as follows: The clerk of the court called the qualified prospective jurors one by one, and the State had the option to exercise one of its peremptory strikes. If the State declined to strike a particular prospective juror, Foster then had the opportunity to do so. If neither party exercised a peremptory strike, the prospective juror was selected for service. This second phase continued until 12 jurors had been accepted. The morning the second phase began, Shirley Powell, one of the five qualified black prospective jurors, notified the court that she had just learned that one of her close friends was related to Foster. The court removed Powell for cause. That left four black prospective jurors: Eddie Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett. The striking of the jury then commenced. The State exercised nine of its ten allotted peremptory strikes, removing all four of the remaining black prospective jurors. Foster immediately lodged a Batson challenge. The trial court rejected the objection and empaneled the jury. The jury convicted Foster and sentenced him to death. Based on these facts, his conviction seemed certain, whatever color the jury may be. But, the peremptory strikes—which could have been used for any reason, formerly, even often racially, as here—were used by the state of Georgia instead to strike all of the blacks, even those with characteristics in common with white venirepersons who were not struck. Compounding matters, its articulated reasons for striking black were inconsistent. These were clear violations of federal law set forth in Batson v. Kentucky. Attempts by the State of Georgia to rationalize or to explain away the strikes of the blacks, as nondiscriminatory, were seriously degraded by its own file’s documents. An opens records request initiated by defendant’s attorneys for the files in this case from the prosecutor’s office struck “Batson gold”! Much incriminating evidence was written, marked in bold print, or highlighted, isolating and focusing on blacks. These blots on fairness and justice are detailed by the Court from the underlying record. For these reasons, legal, logical and fair, the Timothy Foster’s conviction was reversed and his case remanded for new trial in consonance with abiding law. #30