Today, Monday, May 23, 2016, the U.S. Supreme Court ruled in Foster v. Chatman that Timothy Foster—convicted in 1987 of capital murder and sentenced to death in a Georgia court—established purposeful racial discrimination in the prosecution’s dismissal of two black jurors during jury selection at his trial, in violation of Batson v. Kentucky. By a vote of 7-1, the Court determined that Foster, armed with his newly discovered evidence of purposeful racial discrimination, was eligible to have his Batson claim reevaluated. Though not a certainty, the Supreme Court’s decision could pave the way for numerous other similarly situated capital defendants to have their own decades-old Batson claims reevaluated based on newly discovered evidence of purposeful racial discrimination.
When selecting a jury for a criminal trial, the lawyers on each side can get a certain number of potential jurors kicked off the case for essentially no reason. Although every state grants a certain number of these “peremptory challenges” to each side, 30 years ago the U.S. Supreme Court decided—in a case called Batson v. Kentucky—that prosecutors cannot dismiss potential jurors because of their race. In order for a defendant to prove that potential jurors have been dismissed because of their race under Batson, first, they must make a general showing that the prosecution used its peremptory challenges to boot jurors of a particular race. Next, if that showing is made, the prosecution can offer race-neutral reasons for why they used their peremptory challenges the way they did. Then, after considering the arguments of the defendant and the prosecution, a trial court must determine whether the prosecution used their peremptory challenges in a way that amounts to purposeful discrimination. However, it is this third step of the Batson analysis that has tripped up a number of Batson claims brought in the years since that case was decided.
In response, on November 2, 2015, the U.S. Supreme Court heard Foster v. Chatman. In the case, Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the prosecution used its peremptory challenges to boot all four potential black jurors, and Foster argued that the prosecution’s reasons for doing so were racially motivated, in violation of Batson. The trial court rejected Foster’s argument, and the Georgia Supreme Court affirmed.
Foster renewed his Batson claim in a Georgia post-conviction appeal. While that was pending, he got copies of the file used by the prosecution during his trial after lodging a Georgia Open Records Act request. This file made clear the role that race played in how the prosecution decided to use its peremptory challenges—discrimination so blatant that a group of former prosecutors filed brief in support of Foster, and argued that the evidence of it was “overwhelming.” However, even after it was shown this new evidence, the Georgia post-conviction court nevertheless found against Foster, saying that the issue had already been rejected on direct appeal, and, because his renewed Batson claim “fail[ed] to demonstrate purposeful discrimination,” he also failed to show “any change in the facts sufficient to overcome” the presumption that the rejection of his Batson claim on direct appeal had been improper.
Responding to the Georgia post-conviction court, the U.S. Supreme Court—by a vote of 7-1—conclusively disagreed, and called that court’s finding that Foster had failed to prove that purposeful racial discrimination infected the selection of his trial jury “clearly erroneous.” After dealing with a minor procedural issue, the Court decided that Foster established purposeful racial discrimination in the prosecution’s dismissal of two black jurors: Marilyn Garrett and Eddie Hood. Though the trial court accepted the prosecution’s race-neutral justifications for both peremptory challenges, the record showed that all of the justifications were merely pretextual. Thus, even though his claim had been rejected on direct appeal, the Court felt that Foster, armed with his newly discovered evidence of purposeful racial discrimination, was eligible to have his Batson claim reevaluated. Though not a certainty, this result could pave the way for numerous other similarly situated capital defendants to have their own decades-old Batson claims reevaluated based on newly discovered evidence of purposeful racial discrimination.