On May 23, 2016, the Supreme Court of the United States issued its 7-1 decision in Foster v. Chatman, holding that prosecutors purposefully struck Black jurors from the jury pool in Timothy Foster’s trial based on their race. Foster, who is African-American, is on death row in Georgia.

In his majority opinion, Chief Justice John Roberts held that “the focus on race in the prosecutor’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.” Race-neutral explanations for the peremptory strikes failed because of contradictions between the record and present arguments, and the fact that white jurors with similar characteristics were chosen. He also rejected the assertion that the author of the notes on the jury list and questionnaires was unknown, and hence there could be no purposeful discrimination. Instead, Roberts was “comfortable that all documents in the file were authored by someone in the district attorney’s office.” The Court concluded that “Two peremptory strikes on the basis of race are two more than the Constitution allows.”

In Foster’s trial, prosecutors used peremptory strikes to excuse all four of the qualified Black jurors. One prosecutor even highlighted the Black jurors’ names with a green marker on four different copies of the jury list, marked their names with a “B,” circled the word “BLACK” in six prospective jurors’ questionnaires, referred to three prospective jurors as “B #1,” “B #2,” and B #3” in their notes, and ranked Black prospective jurors against each other in case “it comes down to having to pick one of the Black jurors.”

In one instance, Marilyn Garrett, who is African American, was rejected as a juror because the prosecution said her age was too close to the defendant’s. Garrett was 34, and Foster, the defendant, was 19. This strike was especially damning considering the prosecution accepted eight prospective white jurors who were 35 and younger, including a man who was only two years older than Foster.

Eight prominent former state and federal prosecutors, including Larry D. Thompson, deputy attorney general in the administration of President George W. Bush, and Gil Garcetti, the former Los Angeles district attorney, filed a friend-of-the-court brief offering statistics on the persistent discrimination against African-Americans in jury selection: “Some prosecutorial misconduct is shockingly blatant, but most discrimination occurs under the guise of purportedly ‘race-neutral’ justifications prepared by prosecutors with the specific objective of defeating Batson challenges.” The prosecutors warned the justices, “If this court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless.”  

Lower courts are still routinely reprimanding and tossing out decisions where the prosecutors used discriminating criteria in violation of Batson.  Some DA’s offices have developed systems to exclude jurors based on race by targeting Black jurors for increased questioning in voir dire or by excluding people based on profession based on the fact that some professions have more Black workers.  

However, in light of the Supreme Court’s decision in Foster, we certainly hope prosecutors will be less inclined to violate Batson in the future.