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Another look at Batson?

Batson v. Kentucky is the Supreme Court case holding that you can't use peremptory challenges to excuse people from juries for reasons of race.  This portion of an Ohio Supreme Court case explains how it works; basically, if you've got a black defendant and the prosecutor removes a black from the jury, you can object, and the prosecutor has to come up with a race-neutral explanation.

That's how it works in theory.  In practice, well.... The 8th District did grant a rare reversal on a Batson challenge last year in State v. Strong (discussed here), but other than that, the only reversal I can remember in this county is one where the judge sua sponte sustained a challenge to the defense attorney's removal of a white juror.  SCOTUS did seem to tighten things up with its 2008 decision in Snyder v. Louisiana (oral argument, and facts, discussed here), seeming to indicate that appellate courts should be less deferential in their review of trial judges' rulings on Batson challenges, but backed off of that three years later in Thaler v. Haynes.

The problem, of course, is with the "race-neutral" explanation.  How it works in practice is that unless the prosecutor is dumb enough to say that he doesn't want "coloreds" on the jury, everybody's going to let it slide.

Or unless he's dumb enough to write down his plan of making sure there aren't any blacks on the jury.

The Supreme Court granted cert this week in Foster v. Humphrey, where that appears to be precisely what happened.  "Appears"?  (Foster was black man on trial in Georgia for killing an elderly white woman.)  Let's start with the fact that the prosecutor marked the names of the black jurors on the list with green highlighter, helpfully noting at the top that the green highlighting "Represents Blacks."  The jurors had filled out a questionnaire, which included their race; on the questionnaires submitted by the five black prospective jurors, their race was circled.  In his notes, the prosecutor identified those jurors as "B#1," "B#2," and so forth. 

The prosecution also had its investigator write up a report on each of the black jurors, which included the statement, "if we had to pick a black juror then I recommend that Garrett be one of the jurors, with a big doubt still remaining."  And the prosecution had prepared a separate sheet with a list of all the "definite no's"; all four blacks were included.

To be sure, the prosecutor offered race neutral reasons for the strikes:  forty of them, to be exact.  (And even more in response to Foster's motion for new trial.)  It doesn't require much to see that most of them were bullshit.  For example, the prosecution struck one black juror because she was "too young," yet accepted five white jurors who were younger.  Another black juror was struck because he had a son who was eighteen, the same age as Foster.  But the prosecution accepted thirteen white jurors with children between seventeen and twenty-three.

The icing on the discrimination cake was provided in closing argument, when the prosecutor told the jury, "We have got to believe that if you send somebody to death, that you deter other people out there in the projects from doing the same thing."  Of the thirty-four units in "the projects," thirty-two were occupied by blacks.  As the petition for certiorari notes, "The prosecutor's argument would have been far more precarious -- and likely would not have been made -- if the jury was racially diverse."

It's unclear what the Supreme Court is going to do with this.  First, even the petition agrees that the circumstances in this case are "extraordinary"; it's highly unusual for a prosecution to put in writing such detailed plan for excluding black jurors, and even more unusual for the defense to obtain it.  (The notes were obtained under Georgia's Freedom of Information Act.  I have no idea what Georgia law provides there, but under Ohio law you wouldn't get within ten miles of prosecutor's notes from a trial.) 

Second, how does the Court do anything other than say, "this is not okay"?  (Or, this is okay, in which case Batson becomes pretty much of a dead letter.)  The problem, as I said earlier, is that a prosecutor doesn't even have to break a sweat coming up with a "race-neutral" reason for exercising a peremptory; even a hunch will do. 

It's quite possible the Court will simply send it back to the trial court for reconsideration in light of the prosecutor's notes.  The notes had been obtained prior to a hearing on Foster's state habeas corpus petition, but the judge had ignored them and instead relied on what the Georgia Supreme Court had held on direct appeal. 

The Court might also provide some guidance as to what to look for in the prosecutor's explanation.  In Strong, for example, the prosecutor didn't even ask any questions in voir dire of the juror it excused, and much the same happened in Foster.  Plus, as I said, the proffered explanations were often inconsistent with how white jurors with the same issues were treated.

The lawyer for Foster, Steve Bright, is the same one who represented Snyder, and he does an interesting job with his petition, which you can read here.  He includes copies of the prosecutor's notes, in color no less.  It's one thing to say that the prosecution used green highlighter to note the black jurors on the jury list, it's another to show the jury list with the green highlighting.  In this age of electronic filing and color printers and copiers, that's something for appellate lawyers to keep in mind.  

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