The Washington Post has a good primer of Foster v. Chatman, an appeal of a murder conviction that will come before the Supreme Court on November 2nd. The appeal argues that prosecutors used peremptory challenges to eliminate black potential jurors based solely upon their race, a practice the Supreme Court deemed unconstitutional in 1986 in a case called Batson v. Kentucky.

From the report:

Foster, then 18, was arrested for the murder of Queen Madge White, a 79-year-old widow and former elementary school teacher. According to prosecutors, “Foster broke into White’s home. He broke her jaw, coated her face with talcum powder, sexually molested her with a salad dressing bottle, and strangled her to death, all before taking items from her home.” Turned in by his girlfriend, Foster acknowledged the crime. But there were questions about his limited intellectual capacity and whether he acted alone.

Timothy Tyrone Foster was convicted of murder by an all-white Georgia jury in 1987 and sentenced to death, and Georgia appellate courts have upheld both the conviction and the sentence.

Foster’s attorneys used an open records request in 2006 to get their hands on the prosecutor’s jury selection notes, and they reveal what certainly appears to be a biased selection process by a prosecutor eager to eliminate black jurors:

One was dismissed for cause, and prosecutors eliminated the other four with peremptory challenges, offering a variety of nonracial reasons accepted by the presiding judge. [...] The names of the black potential jurors were “marked with a ‘B’ ” and highlighted in green. Their race on juror questionnaires was circled. All were at the very top of a list labeled “Definite NOs,” and each was compared with the others in case, according to the notes, “it comes down to having to pick one of the black jurors.” Marilyn Garrett, who is African American, was rejected partly because her age was so close to the defendant’s, Lanier told the judge. Garrett was 34, and Foster was 19. The prosecution accepted eight white prospective jurors who were 35 and younger, including a man who was two years older than Foster.

Prosecutor Stephen Lanier got his all-white jury, and then told them to make an example of Foster “to deter other people out there in the projects.”

At issue is the use of peremptory challenges, which can be used to dismiss a juror without cause, so long as the dismissal can be explained to the satisfaction of the judge. In Batson v. Kentucky, the Supreme Court ruled those challenges cannot be made on the grounds of race, but in practical terms the ruling merely requires that lawyers manufacture another reason in instances where race is the determining factor.

But there were doubts from the beginning. Justice Thurgood Marshall, the Supreme Court’s first African American justice, welcomed the Batson ruling as historic. But in a separate concurrence, he also questioned whether it was workable. “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process,” Marshall wrote. “That goal can be accomplished only by eliminating peremptory challenges entirely.”

The important part of Foster v. Chatman is the presence of the prosecutor’s notes, which clearly indicate that race was at least a factor, and strongly suggest that race was a determining factor.

In 2008, the Supreme Court sided with a defendant in a similar Batson challenge in which black jurors were peremptorily excluded for reasons that applied at least as well to white jurors. As Foster’s appeal notes, “if the court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless.”

[Washington Post]