By Michael Nam
On Tuesday, the Supreme Court agreed to hear the case of Foster v. Humphrey. Timothy Tyrone Foster claims that prosecutors at his 1987 murder trial, motivated by racial bias, manipulated the jury selection process to prevent Black jurors from serving.
The notes received by Foster detail multiple instances where it appears the prosecutors explicitly mention the racial makeup of specific members of the jury pool:
In habeas proceedings, the defendant obtained the prosecution’s notes from jury selection, which were previously withheld. The notes reflect that the prosecution (1) marked the name of each black prospective juror in green highlighter on four different copies of the jury list; (2) circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors;” and (5) created strike lists that contradict the “race-neutral” explanation provided by the prosecution for its strike of one of the black prospective jurors.
In 1986, just a year before Foster’s trial, the Supreme Court had found that it was unconstitutional to exclude members of a jury based on anything other than race-neutral factors in the case Batson v. Kentucky, but the Georgia courts had sided with the prosecution in Foster’s case, somehow not finding the above list of issues to be race-exclusionary.
ThinkProgress notes that such explanations are not completely outside of legal reasoning when it comes to something as murky as racist intent, even with the Batson v. Kentucky ruling. The prosecution has leeway to argue a non-racially motivated set of reasons for why a decision could have been made without race being a factor despite the written evidence presented by Foster’s legal team.
“A Georgia state court sided with prosecutors who said they challenged each of the possible black jurors for legitimate, race-neutral reasons and did not rely on the highlighted jury lists to make their ultimate decisions,” notes the North Georgia News.
Such a case highlights the difficulties Black defendants have in pursuing racial bias claims in the legal system. Aside from a prosecution that can deny making highlighted notes about the Black jurors, the Supreme Court also made it murky with another case in 1987.
Author Michelle Alexander describes in her book, The New Jim Crow, when the Supreme Court decided in the case of McCleskey v. Kemp that despite tremendous statistical evidence showing racial bias in death penalty sentencing against Blacks, McCleskey’s sentence could not be challenged under the Fourteenth Amendment “in the absence of clear evidence of conscious, discriminatory intent”:
The real issue at hand was whether and to what extent the Supreme Court would tolerate racial bias in the criminal justice system as a whole. The Court’s answer was that racial bias would be tolerated virtually to any degree so long as no one admitted it.
The court has agreed to hear the case for the new fall term, but it remains to be seen how much institutional racial bias the justice system will continue to allow based on the various ways prosecutors and judiciaries can skirt the issue.