Yesterday the Supreme Court heard oral argument on a case involving juror discrimination. The argument is that the government deliberately discriminates jurors by race; generally striking black jurors from the trials of black defendants. The case before the court is exemplar of the pattern: Georgia v. Timothy Foster. At his murder trial, every black juror was dismissed by the prosecutors. There were 5 potential black jurors on the panel from which his jury was selected, and all were struck with peremptory challenges by the prosecutor. He was convicted and sentenced to death.
However, the Foster case is unique, because over the court of the case winding its way through the appellate system, the prosecutor’s notes were obtained and included in the record. The notes offer substantial evidence that race was the determining factor in striking those jurors, though race neutral reasons were provided to satisfy the minimal legal threshold.
The notes makes this the perfect case to challenge the current procedure, which only requires the prosecutor to state a legally sufficient race-neutral reason when requested by the opposing party, known as a Batson challenge. In practice, the vast majority of Batson challenges are initiated by defense attorneys, almost always after prosecutors strike minority jurors. It remains to be seen what the court will do with the case, but some watchers noted that several justices seemed unhappy with the apparently discriminatory result of the peremptory challenges in the Foster case. Whether the overturn the Batson case and the longstanding peremptory procedure remains to be seen.
If you’re curious, I’d recommend the long article on the subject that the Daily Beast ran a few weeks ago…