Supreme Court

Supreme Court Tackles Racial Bias in Jury Selection

SCOTUS hears arguments in Foster v. Chatman.


The U.S. Supreme Court confronted the issue of racial bias in jury selection on Monday when it heard oral arguments in a case arising from a prosecutor's alleged efforts to prevent blacks from serving as jurors in the murder trial of a black defendant. The lead prosecutor in that case eventually told the all-white jury to impose the death penalty in order to "deter other people out there in the projects."

At issue in Foster v. Chatman is the 1987 conviction of Timothy Tyrone Foster, who now resides on death row in Georgia. At trial the prosecutors used peremptory strikes to eliminate all prospective black jurors, resulting in an all-white jury that ultimately sentenced Foster to death. In 2006, thanks to a Georgia Open Records request, Foster's attorneys obtained the prosecutor's jury selection notes from that trial. Those notes featured the names of all prospective black jurors highlighted in green and marked with a "B." The notes also contained a list of names under the header "Definite NOs." That list included the names of all prospective black jurors.

"We have an arsenal of smoking guns in this case," Foster's attorney, Stephen Bright, told the Supreme Court on Monday.

Several justices seemed inclined to agree. "You have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the African­ American prospective jurors as a group, that they had basically said, we don't want any of these people," Justice Elena Kagan told Deputy Attorney General of Georgia Beth Burton. "All the evidence suggests a kind of singling out."

Before the Court discussed the merits of the case, however, the justices spent nearly half of the oral argument bogged down in a complicated morass of technical questions pertaining to jurisdiction.

"Are we addressing just whether there's arguable merit to the claim or are we addressing the claim on its own merits?" asked Chief Justice John Roberts at one point. A few minutes later, Justice Antonin Scalia raised another jurisdictional concern. "How can we reverse [the Georgia Supreme Court] on—on an issue they—they never considered?" After one particularly convoluted exchange, Justice Sonia Sotomayor simply declared, "I'm sorry. I'm so confused I can't even."

That confusion could ultimately spell disappointment for criminal justice reformers. If the Court fails to find clarity on the questions surrounding jurisdiction, this dispute could be sent back down to the lower courts for further sorting out without the justices ever getting around to ruling on the merits.

A decision in Foster v. Chatman is expected by June 2016.

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  1. A. Any law concerning racial bias (or any other bias) in jury selection or elsewhere is incredibly hard to define and enforce. It is way too subjective.

    B. Better to change procedures such that the racial makeup can no longer matter. Currently, trials happend long after the fact, with all parties repeating rehearsed stale points, and juries are treated as naive, gullible infants who must be protected from even a hint of improper evidence or questioning, but their deliberations are the opposite — beyond reach, sacrosanct, invisible to the court and attorneys.

    I’d put the juries in charge right from the get go, during the investigation itself, get them in there to ride herd on all parties, police and defendant, ask questions, hire investigators if they see a lack, stick their nose into everybody’s business while everything is still fresh. But their verdict would have to detail all evidence, all witnesses, with detailed descriptions of their opinion of its validity and relevance, and especially include the entire logic chain from evidence to conclusion.

    That verdict alone would be the basis of appeals. Show where their opinions of evidence and witnesses were flat-out wrong, show the faults in the chain of logic from evidence to conclusion.

    Then it would no longer matter whose mother-in-law was on the jury or how many whites convicted blacks. Or at least it would be a lot less important once everyone’s bias was recorded in black and white official verdicts.

    1. Or we could just get rid of peremptory strikes, make the lawyers arguing the case give an actual reason why a prospective juror couldn’t fairly judge the facts and the law.

  2. “Are we addressing just whether there’s arguable merit to the claim or are we addressing the claim on its own merits?”

    Meriting the address to its own claims, obviously. Moran.

    1. Merriting? Meritting?

      Marmot + Ferret = Merret?

  3. To clarify: Sotomayor’s quote here is legitimate and not a parody of some kind? “I can’t even” is awful…

    1. Scalia followed up by asking, “ZOMG, WTFBBQ, kkthxbai”.

        1. tl;dr

      1. AWOT?

  4. Isn’t the whole point of peremptory strikes to eliminate people you can’t justify for obvious bias reasons? The defense gets them too. I don’t have all the facts in the case, but it seems hard to prove (perhaps not in this individual case), and could lead to a lot of frivolous challenges down the road when someone claims the jury racial makeup wasn’t fair.

  5. I sometimes get the impression that a good percentage of black people, if on a jury with a black defendant, would vote not guilty no matter what, even if they thought the guy was guilty. Just look at the OJ trial.

  6. Justice Sonia Sotomayor simply declared, “I’m sorry. I’m so confused I can’t even.”

    Wise? May be not so much.

  7. Pool of 18 is enough for any trial. 2 exclusions each and max 2 alternates.

  8. Supreme Court Tackles Racial Bias in Jury Selection

    Huh. Why?

    Oh -why not? I forgot.

    So far over the edge, it’s just a question of how fast we’ll be going when we hit bottom and smash into a billion pieces. I do want to witness it….and then die shortly after. Which seems uncomfortably likely….

    1. I think it’s reasonable to challenge a death penalty verdict that the prosecutor thought was dependent upon eliminating all black people from the jury.

      1. Doesn’t that logic justify the strikes, though? It seems like you’re saying that black people have a bias that will cause them to favor the defense. If I’m right in understanding the strikes, they exist to allow attorneys to remove from the voting pool people who are already biased towards the other side.

  9. So they are attempting to set up even more situations where being a protected class matters? I’m fairly certain that those strikes are for attorneys to eliminate anyone that they think will definitely vote for the other side. They are provided to both sides for this purpose and there is no limitation on why they are used.

    Also, if they are trying to overturn the trial based on this they are admitting that the lawyer was right in striking blacks from the jury pool. Either they would have voted for the defendant separate from the merits of the case changing the results of the trial and the lawyer did the right thing striking them for bias, or they would have voted the same and you have to ask why the case is being overturned.

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