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Function of Juries & Jury Nullification | 28 May 2015

-Supreme Court to Consider Exclusion of Black Jurors in Death Penalty Case

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By UpstateNYer (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

By UpstateNYer [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

This week the United States Supreme Court accepted for consideration the case of Foster v. Humphrey, regarding Georgia prosecutors’ use of peremptory challenges to strike every black juror in the jury pool in the defendant’s case. Then 18-year-old, black defendant Timothy Tyrone Foster went on to be convicted of the murder of a white woman by the resulting all-white jury, who subsequently also sentenced him to death.

Foster was convicted in 1987, just one year after the United States Supreme Court ruled in Batson v. Kentucky that:

Although a prosecutor ordinarily is entitled to exercise peremptory challenges for any reason, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.

4096px-SQ_Lethal_Injection_RoomDefense counsel challenged the peremptory strikes used against black potential jurors under Batson v. Kentucky, and they were found by the court to reflect a prima facie showing of racial discrimination. Under the Batson ruling, the prosecution was then required to provide race-neutral explanations for each of the strikes, which it proceeded to do. The defense argued that the reasons given were pre-textual, but the court sided with the prosecution. Jurors subsequently convicted the defendant and, urged by the prosecutor to “deter other people out there in the projects”, sentenced him to death.

After the trial, the defense requested post-judgment discovery to preserve the State’s notes regarding jury selection to be used in appeal. This request was denied. However, decades later in 2006, the defense acquired the State’s notes regarding jury selection through Georgia’s Open Records Act and found new evidence in the prosecution’s notes that the defense argues support its claim of racial bias.

That evidence is reproduced in Foster’s petition for writ of certiorari and includes:
1. That the prosecution marked the name of each black prospective juror in green highlighter on four different copies of the jury list, and supplied a key in the notes specifically stating that green highlighting indicated black jurors.
2. That the prosecution circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors.
3. That the prosecution identified three black prospective jurors as “B#1”, “B#2”, and “B#3” in its notes.
4. That the prosecution’s investigator ranked the black prospective jurors against each other in case “it comes down to having to pick one of
the black jurors” and advised the prosecutor that “if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.” Such language is crossed out in the notes acquired and was not submitted in the final affidavit to the court responding to the Batson challenge.
5. That the prosecution’s strike lists, failure to strike certain white jurors, and explanations for striking black jurors contradict the prosecution’s race-neutral explanations for striking the black prospective jurors.

Despite this new evidence that came to light nearly two decades after the trial, both the Georgia Superior Court and the Georgia Supreme Court declined to revisit the issue. Foster thereafter petitioned the United States Supreme Court for relief.

Foster v. Humphrey case documents are available here:
—Timothy Tyrone Foster’s Petition for Writ of Certiorari (.pdf)
State’s Opposition to Writ of Certiorari (.pdf)
Foster’s Response to State’s Opposition to Writ of Certiorari (.pdf)
Certiorari Granted 26 May 2105 (.pdf)

Additional reading on Foster v. Humphrey:
Supreme Court will hear appeal from Georgia death row inmate over exclusion of black jurors
The Supreme Court Will Hear An Almost Comically Egregious Case Of Race Discrimination
SCOTUS to Decide if Race Motivated Juror Strikes

A jury is meant to be an independent body of individuals who represent a randomly-selected cross section of and the conscience of the community. The process of voir dire is not supposed to be used to “game” the jury, stacking it with individuals favorable to one side or the other, but rather is simply supposed to eliminate anyone with a true conflict of interest or inability to be a fair juror.

Throughout history, however, prosecutors have often been unfriendly not only to having blacks on juries, but also to other people of color, women, people of low income, intelligent or highly-educated people, those who are independent-minded and so on. In this short set of clips from a one-hour presentation, for example, former Philadelphia District Attorney Jack McMahon explains to new prosecutors how and why they should select jurors “that are as unfair and more likely to convict than anybody else in that room”:

The full, hour-long session can be seen here:
Jury Selection with Jack McMahon

In capital cases where jurors are “death-qualified”, with all prospective jurors who are not willing to vote for the death penalty removed before they are seated, the prosecution typically starts out closer to victory than the defense. Evidence has shown that death-qualified juries are statistically more likely to convict in the first place, for a variety of reasons.

First, research has shown that death qualification skews the composition of the jury toward those who are more likely to convict. For example, death-qualified jurors are more likely to assume guilt, more likely to be concerned with crime control than with due process, and are less remorseful regarding mistaken convictions. Other evidence suggests that death-qualified jurors consider police, prosecutors, and prosecution witnesses more credible and are more suspicious of the defense than other jurors, and are more likely to accept the prosecution’s version of events than the defense’s version in the event of ambiguity.

Beyond that, research also suggests that the death qualification process itself has a tendency to psychologically poison the jury more toward conviction as the process not only elicits information from jurors, but imparts information to them as well.

When a person has been killed, it is understandable that the victim’s survivors and the rest of the community desire justice through the legal system be served quickly and decisively. However, when another person’s life is on the line as well, justice calls not simply for rushing to take revenge on whomever the prosecution puts forth by whatever path most expediently leads to that end. Justice requires that we afford the defendant due process, including a rational and just trial by jury on an equal basis with every other defendant.

The question put to the Supreme Court in Foster v. Humphrey is:

Did the Georgia courts err in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case?

This week the Court agreed to give consideration to this question, but we will have to wait until fall to the hear arguments in this case.

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