Supreme Court to Decide If Georgia Went Too Far in Excluding All Blacks From Jury in 1987 Capital Case

This Oct. 13, 2015, photo shows the Supreme Court in Washington. The Supreme Court has so far resisted elaborating on two landmark decisions that established a nationwide right to defend one’s home with a gun. That could change with a new appeal filed by gun owners that challenges a Chicago suburb’s assault weapons ban. (PHOTO CREDIT: AP Photo/Jacquelyn Martin)

“We have an arsenal of smoking guns,” a lawyer for a death row inmate told the Supreme Court on Monday.

The justices were considering a case on race discrimination in jury selection, and there seemed to be consensus that prosecutors in Georgia had crossed a constitutional line in 1987 in their efforts to exclude all blacks from a jury that would hear a capital case against a black man, Timothy T. Foster, who was accused of killing a white woman, Queen Madge White.

Prosecutors used peremptory challenges — ones that do not require giving a reason — to exclude every potential black juror.

In 1986, in Batson v. Kentucky, the Supreme Court made an exception to the centuries-old rule that peremptory challenges are completely discretionary. It ruled that race discrimination in jury selection was unconstitutional and required lawyers accused of it to provide a nondiscriminatory explanation.

Such challenges are rare, and most lawyers are capable of offering reasons unrelated to race. Many legal experts say the Batson ruling has turned out to be toothless and symbolic. But Monday’s case, Foster v. Chatman, No. 14-8349, appeared poised to be an exception.

“Isn’t this as clear a Batson violation as this court is likely to see?” Justice Elena Kagan asked.

The case certainly had unusually vivid evidence. In notes that did not surface until decades after the trial, the result of a public records request, prosecutors had marked the names of black prospective jurors with a B and highlighted those names in green.

They circled the word “black” where potential jurors had noted their race on questionnaires. They ranked the black prospective jurors in case “it comes down to having to pick one of the black jurors,” as the prosecution’s investigator put it in a draft affidavit at the time.

In the end, prosecutors struck all four black potential jurors.

When challenged, Stephen Lanier, the lead prosecutor, denied that race had been a factor and offered other reasons for the strikes. The black prospective jurors were confused, incoherent, hostile, disrespectful or nervous, he said, and three did not make enough eye contact.

“All I have to do is have a race-neutral reason,” Mr. Lanier said at the time, “and all of these reasons that I have given the court are racially neutral.” The judge rejected the defense’s objection.

The Supreme Court’s more conservative members mostly discussed potential hurdles in the case. Justice Antonin Scalia, for instance, said the trial judge was in the best position to assess the prosecutors’ intent. “It’s sort of hard for us to do it on a cold record,” he said.

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SOURCE: NY Times, Adam Liptak