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Will Supreme Court Ruling on Racial Bias Have Effect on Jury Selection?-Update

Melinda Morris
By: Melinda Morris
Jun. 01 2016

Last year, we wrote about the United States Supreme Court agreeing to hear an appeal from Timothy Tyrone Foster, a 48-year-old death row inmate in Georgia who was convicted in May 1987 when he was 18 years of age of killing a 79-year-old retired schoolteacher. The jury that sentenced Foster to death was entirely white. His legal team uncovered a stunning series of notes on the prosecution’s documents that shed light on the intentional strategy to strike every black prospective juror from the jury pool.

The case called into question the prosecution’s use of peremptory challenges—the limited rights of attorneys to reject jurors without stating a reason. On May 23, the Supreme Court ruled 7-1 to overturn Foster’s conviction with Chief Justice John Roberts writing for the majority who concluded that “prosecutors were motivated in substantial part by race when they struck” black jurors from the pool.

“Two peremptory strikes on the basis of race are two more than the Constitution allows,” Roberts wrote.

While the decision in this case certainly helps restore some level of justice to an alleged offender who was originally deprived of it, the effects are not likely to be far-reaching. An objection to the validity of a peremptory challenge is often called a Batson challenge, a name derived from the 1986 landmark United States Supreme Court case Batson v. Kentucky in which the Court ruled that a prosecutor’s use of peremptory challenge cannot be used to exclude jurors based solely on their race.

Ordinarily, it is incredibly difficult for a lawyer to prove that a peremptory challenge was racially motivated because it is all but impossible to demonstrate what was in the mind of a prosecutor. Foster v. Chatman was a unique case because “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

The Florida Rules of Criminal Procedure allow for 10 peremptory challenges in felony cases punishable by death or imprisonment for life. In all other felony cases, each side is allowed six peremptory challenges. Each side is allowed only three peremptory challenges in misdemeanor cases.

Justice Thurgood Marshall authored a concurring opinion in Batson in which he called Justice Lewis Powell’s majority “eloquent,” but wrote separately to express his views that the Court’s decision would “not end the racial discrimination that peremptories inject into the jury-selection process.”

“That goal can be accomplished only by eliminating peremptory challenges entirely,” Marshall wrote. “Misuse of the peremptory challenge to exclude black jurors has become both common and flagrant.”

Ironically, the justice that ultimately succeeded Marshall in 1991, Clarence Thomas, was the only justice who dissented to the majority opinion. Thomas noted that the Supreme Court of Georgia had already considered and rejected Foster’s claim decades before, and state law prohibited Foster from raising the same claim anew in his state habeas petition. “Without such procedural bars, state prisoners could raise old claims again and again until they are declared victorious, and finality would mean nothing,” Thomas wrote.

Thomas’ view to reject the claim on procedural grounds is a wholly unconvincing technical argument that seemingly ignores the racial discrimination that was—and unfortunately, still is endemic to our criminal justice system. The Court’s ruling in Foster v. Chatman is a welcome attempt to correct a serious wrong, but it is unlikely to completely remove racial bias in matters of jury selection.

The case exemplifies how criminal appeals are a long, frustrating, and complicated process that can drag out for several years—or even decades—with little to no guarantee of justice. If you or your loved one are facing felony charges for any kind of violent crime, it is in your best interest to contact an experienced Pinellas County criminal defense attorney who will fight to achieve the most favorable outcome.

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