#argument preview

Facts first (I’m gonna get that printed on a t-shirt). In 1986, the defendant, Timothy Foster, an African-American, at the time only 18, was accused of murdering Queen Madge White, an elderly white woman, in Rome Georgia, during the course of a botched burglary. Given this, you can see that this was going to be a racially charged trial from the beginning.

So, you can imagine that the defense attorney was not happy when the prosecutor used four of his nine peremptory challenges (more on that below) to strike every African-American individual from the jury. The all-white jury, not very surprisingly, convicted Foster of capital murder. The prosecutor, during the penalty phase, urged the jury to sentence Foster to death to, and I swear I’m not making this up, ‘deter other people out there in the projects.’ That was a deliberate and specific reference, incidentally, to project housing that, at the time, had 32 African-American households out of 34.

During jury selection, the defense counsel argued that the prosecutor had violated a rule set forth in the Supreme Court case Batson v. Kentucky (this sort of argument is, conveniently enough, called a Batson challenge), so that means we need to take a quick detour and talk about jury selection and Batson.

Juries are important. So important that the right to a jury trial is actually in the Constitution twice (Article III, and the Sixth Amendment). Part of the Sixth Amendment is the right to an *impartial* jury, which means that we need some way to test the impartiality of a jury.

Which leads us to voir dire (which is Old Law French for ‘to speak the truth’). Before a petit jury (Old Law French for, well, little jury; and a wholly distinct entity from the grand jury) is seated, a jury panel is convened, and the prosecutor and defense attorney have the right to question the panel. Then, they have two different types of challenges to strike a juror. The first is a challenge for cause, which is a fancy way of saying that the lawyer argues that a jury is simply unfit to sit on the jury. Perhaps the jury has admitted some bias, or isn’t old enough to sit on the jury, or is going to have a child ANY MOMENT, or something. If the judge agrees, then that potential juror is struck, which is a fancy way of saying they have to either go back to Central Jury and be sat on a new panel, or they get to go home. Either way, they don’t sit on *this* jury. Because a challenge for cause goes to the qualifications of the juror, both sides have an unlimited number of cause challenges -- but remember that the judge has to agree.

The other kind of challenge is a peremptory challenge. This is a challenge that, in the normal course of things, doesn’t have to be explained. That juror just struck the lawyer the wrong way, and they don’t want them on the jury.* Because there’s no real rhyme or reason to peremptory challenges (and different lawyers will have different criteria for what makes a good or bad juror, none of which has any actual evidence attached), lawyers are limited in the number of peremptories they can execute in a given trial. At the time of Foster’s trial, each side had nine peremptory challenges.

Now, I said that in the normal course of things a peremptory doesn’t need to be explained. There is one exception: in 1986, the Supreme Court held, for the first time, that a prosecutor cannot use his peremptory challenges in a racially discriminatory manner.** The Court created a three part procedure for a so-called Batson challenge. First, the defendant must show that the prosecutor has excluded a specific, discrete class of people. The prosecutor then must come forward with a racially-neutral explanation for the use of peremptory challenges. Finally, the judge decides if the explanation offered was reasonable, in which case the challenges stand, or if they were ‘mere pretext.’

So, turning back to Foster. Here, there were four African-Americans on the jury panel, and the prosecutor struck all of them, so the defense attorney issued a Batson challenge.*** The prosecutor then offered racially neutral reasons for each challenged jurors. These reasons were, honestly, not great. They included ‘the juror was didn’t ask to be struck from the jury,’ ‘the juror DID ask to be struck from the jury,’ ‘the juror belonged to a particular church, and it’s my opinion that they don’t vote for the death penalty’ (notwithstanding that juror was asked and said he wasn’t opposed to the death penalty) and ‘the juror didn’t make sufficient eye contact.’ In all, the prosecutor gave dozens of reasons for each of the four struck jurors (which is odd, ‘cuz generally you don’t find dozens of reasons to strike someone unless you’re looking for them). In the end, though, the court found the prosecutor persuasive and overruled the Batson challenge.

Fast forward several years. For the first time, Foster gets access to the prosecutor’s file and finds that the prosecutor has *extensive* notes on each of the African-American jurors, which include a specific notation of their race, and a comment that one of them would be acceptable ‘if they had to pick one.’ Each of the African-American jurors was highlighted in the jury panel list, and there was a note in the corner that explained that names highlighted in green ‘Represents Blacks.” There were multiple copies of the list that were circulated around the DA’s office, filled with annotations from various members of the DA’s Office. Each of the African-American jurors was listed on the side as “B#1,” “B#2,” and so on.

All in all, it’s pretty damning. Foster’s conviction is almost definitely going to be overturned (though we’ll be able to tell more after oral argument, and get a sense of how the justices are feeling). So, if it’s so straightforward, why spend all this time talking about it? Well, first, what happened to Foster was unfair. The prosecutor deliberately picked jurors to heighten racial tensions, and then used that to get both the conviction and a death penalty. Foster is *probably* guilty (the evidence is strong, and he did confess, ultimately), but that’s a determination that needs to come from an impartial jury, and there very clearly was not one here.

More importantly, it highlights a problem with the way we choose jurors. The idea of voir dire is to pick an impartial jury panel. Peremptories not only allow but encourage lawyers to do the exact opposite; to strike those jurors they think will vote against them, and hopefully end up with jurors predisposed to take that lawyer’s side. A lot of scholars argue that this is how things are supposed to work out; after all, if both sides are picking off the people obviously biased against them, then that just leaves the impartial jurors on the jury in the end.

Others, and I agree with this second set, argue that the idea of a peremptory challenge, of striking a juror because the juror belonged to a particular church, or spoke Spanish, or an accountant (all real, acceptable reasons to strike a juror with a peremptory challenge) is counter to the guarantee of an impartial jury of one’s peers.

Argument is on Monday. I look forward to listening to it.

* Disclosure: I took a practice jury selection class in law school. We had to take turns pretending to be jurors, and, at the end, the lawyers conducting voir dire did have to explain why they decided to strike each juror in the peremptory challenges. I was struck for being too uppity.

** Over the years, this doctrine has expanded to include both criminal and civil juries, both the prosecutor and the defense lawyer, and ethnicity and gender discrimination.