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Case Update: Foster v. Chatman

Anybody who's been around a criminal courtroom for more than three weeks knows that defense lawyers want as many blacks on the jury as they can get, and the prosecutor wants as few.  For a very simple reason:  blacks tend to be more distrustful of authority, and are less likely to believe police officers.  Figure that.

I wonder how, and whether, that's going to change after the Supreme Court's decision on Monday in Foster v. Chatman.  

Foster had been convicted of capital murder and sentenced to death in Georgia nearly thirty years ago.  To his eternal gratitude, Georgia has one of the most liberal public records acts in the country:  somehow, he managed to get the prosecutor's file notes.  There had been four black jurors on the venire, and the prosecution used their peremptories to get rid of all of them.

Their notes indicated that this was very much a matter of design.  Included in the document dump were four copies of the jury venire list, with the names of each black juror highlighted in green.  There was a legend at the top of each page indicating that the green highlighting "represents Blacks."  Lest that be too subtle for some of the team, there was a letter "B" next to each of the names of the black jurors.  Alas, no indication there was a letter "B" at the top of the form stating that the letter "represents blacks."

And what's even worse than what they did is they're still lying about it.  In a habeas proceeding after the documents were released, the trial court nonetheless held that the justifications advanced by the lead prosecutor, Lanier, for the removal of the blacks had "no discriminatory intent," and that there were "reasonably clear, specific, and legitimate reasons" for the strikes.  Roberts' opinion for the 7-1 majority finds

Lanier's justifications for the strike seem reasonable enough. Our independent examination of the record, however, reveals that much of the reasoning provided by Lanier has no grounding in fact.

Those are pretty harsh words, but it only gets worse for Lanier as Roberts spend the next eleven pages chronicling "Lanier's misrepresentations to the trial court," concluding that there was a clear discriminatory intent with at least two black jurors.  Most galling to the Court was the prosecutors' claim that the focus on black jurors in the venire list and notes was an effort to make sure the State was

"thoughtful and non-discriminatory in [its] consideration of black prospective jurors [and] to develop and maintain detailed information on those prospective jurors in order to properly defend against any suggestion that decisions regarding [its] selections were pretextual."

The Court found the argument

"reeks of after­thought," having never before been made in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the State's brief in opposition to Foster's peti­tion for certiorari.

But that's the problem with Foster:  it's so fact-specific that its precedential value is virtually nil.  If this wasn't a Batson violation, it's hard to figure out what would be.

The basic problem with Batson is that it's virtually impossible to enforce.  Peremptory strikes can be made for any reason or no reason.  Sure, when a black juror is struck, the prosecutor can be compelled to articulate a non-discriminatory for the strike, but that's not at all difficult, because just about any justification short of "I don't want coloreds on the jury" will be deemed sufficient.  In the ten years I've been doing this, I've come across only a handful of successful Batson challenges, and one of them was a sua sponte challenge by the trial judge when a defense lawyer she didn't like used a peremptory on a white juror. 

Back when I discussed the oral argument in Foster, I wrote:

Just reminding courts -- and prosecutors -- that there is such a thing as a successful Batson challenge will help.  Frankly, I'd settle for that.

I guess I'll have to.

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