Foster v. Chatman: An Egregious Batson Violation (and a SCOTUS Reversal)

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“Implausible,” “fantastical,” “intricate,” and “nonsense.” This is how Justice Roberts described the myriad explanations given by Georgia for the state’s peremptory challenges of black jurors in Timothy Foster’s 1987 trial. It turns out not to have been true that Marilyn Garrett was stripped of her opportunity to serve as a juror because she was “curt,” or “disrespectful,” or “divorced.” It wasn’t true that Eddie Hood was axed because he failed to make eye contact with the prosecutor. No, the reasons offered by the prosecution – in court and in writing – were pretextual, designed to mask the operation of purposeful racial discrimination. The verdict of guilt and the sentence of death passed down by an all-white jury in the murder trial of Mr. Foster, who is black, cannot stand.

The uncovering of what happened at Mr. Foster’s trial took almost 20 years. Some facts were clear at the time. Of the prospective jurors qualified to serve in his trial, four were black. The prosecution was allocated ten peremptory challenges, and used four of them to bring about an all-white jury. Other details became clear only later. In 2006, a cache of documents from the prosecution’s files was uncovered by a request made under Georgia’s Open Records Act. It turns out that on juror questionnaires the race of black prospective jurors had been circled, and on juror lists the names of black prospective jurors had been highlighted in green. A helpful key indicated that the green highlighting “represents blacks.” These notations contrasted sharply with the prosecutor’s assertion during jury selection that, when selecting jurors, “I look at it color-blind.” The file’s “persistent focus on race” contributed to Justice Roberts’s conclusion that the peremptory challenges of Garrett and Hood (the only two challenges being considered by the Supreme Court) were “motivated in substantial part by discrimination,” and thus violated Batson v. Kentucky.