U.S. Supreme Court to Consider Racial Bias in Selecting Jurors

[jimmy olsen]

Sounds like a slam dunk, but doesn't look like much will change.

http://www.npr.org/2015/11/02/452898470/supreme-court-takes-on-racial-discrimination-in-jury-selection

Supreme Court Takes On Racial Discrimination In Jury Selection
November 02, 2015 5:00 AM ET
Nina Totenberg

The U.S. Supreme Court wrestles Monday with a problem that has long plagued the criminal justice system: race discrimination in the selection of jurors.

"Numerous studies demonstrate that prosecutors use peremptory strikes to remove black jurors at significantly higher rates than white jurors."

Those are not the words of the defense in the case. They come from a group of highly regarded prosecutors, Republican and Democrat, conservative and liberal, who have filed a friend-of-the-court brief siding with Timothy Foster, who was convicted and sentenced to death in the killing of an elderly white woman in Georgia.

It has been nearly 30 years since the Supreme Court sought to toughen the rules against racial discrimination in jury selection. But Foster's lawyers argue that black jurors were systematically excluded from the jury at his trial in 1987, while judges at all levels looked the other way for nearly three decades thereafter.

Jury selection is done according to a set of rules. Prospective jurors are usually questioned by both prosecution and defense lawyers and then winnowed down in two different ways. First, the judge removes, "for cause," those jurors deemed incapable of being impartial. Next, each side, prosecution and defense, has a set number of peremptory strikes, meaning that a certain number of prospective jurors can be eliminated without a stated reason, or for no reason at all.

In 1986, the Supreme Court added a third step in a case called Batson v. Kentucky. Under the Batson rules, if the defense could show a racial pattern in prosecution peremptory strikes, the prosecutor would have to justify each one by demonstrating a non-racial reason for eliminating the juror.

Still, prosecutors found ways to get around this new rule, as demonstrated by an infamous training video made in Philadelphia in the late 1980s after the court's decision in Batson. The video features then Assistant District Attorney Jack McMahon advising trainees that "young black women are very bad, maybe because they're downtrodden on two respects ... they're women and they're blacks."

He goes on to recommend avoiding older black women too, as well as young black men, and all smart, and well educated prospective jurors.

But, McMahon reminded the trainees that they had to come up with a non-racial reason for their strikes: "When you do have a black juror, you question them at length and on this little sheet that you have, mark something down that you can articulate at a later time if something happens," he says.

Studies have shown that these proffered reasons are often a mere pretext for racial discrimination. A North Carolina study of jury selection in 173 death penalty cases found that black prospective jurors were more than twice as likely to be struck by the prosecution as similarly situated white jurors. A 2003 study of 390 felony jury trials prosecuted in Jefferson Parish, La. found that black prospective jurors were struck at three times the rate of whites. And in Houston County, Ala., prosecutors between 2005 and 2009 used their peremptory strikes to eliminate 80 percent of the blacks qualified for jury service in death penalty cases. The result was that half of these juries were all white, and the remainder had only a single black member, even though the county is 27 percent black.

At Timothy Foster's trial in Rome, Ga., the prosecutor used four of his nine peremptory strikes to knock out all the qualified black jurors in the jury pool. The defense cried foul, but the trial judge and every appellate court after that, including the Georgia Supreme Court, accepted the non-racial reasons. The prosecutors gave as many as a dozen reasons for striking each black prospective juror. These justifications included things like "failure to make eye contact," looking "bored," being "divorced," or "a social worker," and so on.

The appellate courts continued to accept these excuses even after Foster's lawyers obtained the prosecutor's notes in 2006 under the Georgia Open Records Act. It is rare that defense lawyers ever see these notes, and in this case, the prosecution's worksheets were not subtle.

The name of each black prospective juror was highlighted in green, circled, and labelled with a "B." At the Supreme Court Monday, defense lawyer Stephen Bright, of the Southern Center for Human Rights, will tell the justices that everything about those notes reeks of racial discrimination.

"They were referred to by B1, B2, B3," Bright says. "There were comparisons made among the black jurors that, if we have to take a black, maybe Ms. Hardge will be okay, or maybe Ms. Garrett will be okay. They didn't, of course, take either one of those."

Bright contends the State of Georgia continues to change its story about the justifications. For example, prosecutors initially said they struck juror Eddie Hood because he had a son close to the defendant's age. Later, when it turned out that two white jurors had sons who were close in age too, the prosecutor gave a different "bottom line" reason: Hood was a member of the Church of Christ.

"They insisted that the Church of Christ took a strong position against the death penalty and that any member of the Church of Christ would vote against the death penalty," Bright says.

In fact, the Church of Christ took no position on the death penalty; the prosecution notes reflect that, and Hood testified that he could vote for the death penalty.

Then there was prospective juror Marilyn Garrett. The prosecution said it struck her because she was close to the age of the defendant. Foster was 19 at the time of trial, and Garrett was 34. In contrast, the prosecution accepted eight white jurors under 35, one of whom was only two years older than Foster.

The state of Georgia refused to provide anyone to be interviewed for this story. But the state's brief says that any attempt to characterize the jury challenges as racially motivated "ignores the multifaceted nature of jury selection." And the brief does provide a variety of reasons for each juror that was struck, reasons that the defense argues were not applied to similarly situated white prospective jurors.

The state's brief contends that the only reason prosecutors labelled the race of the prospective black jurors was to rebut the anticipated race discrimination claim by the defense.

No briefs have been filed in support of the state's position in the case. But, that earlier mentioned group of former state and federal prosecutors is urging the Supreme Court to invalidate Foster's conviction because of "blatant prosecutorial misconduct."

They point to study after study showing that when it comes to getting rid of racial discrimination, the current system doesn't work. Prosecutors, they say, easily game the system by giving pretexual explanations, particularly in the South. In North Carolina, for example, prosecutors routinely handed out a one-page list of such reasons in training sessions.

Judges seem to have a high threshold for seeing racial bias, even in supposedly liberal states. In California, for instance, the state supreme court has dealt with 114 Batson appeals since 1993, according to court opinions, and in only one case out of the 114 did the state's highest court find evidence of racial discrimination.

"It's very hard politically with elected judges, very hard psychologically with judges and prosecutors who work together all the time, for a judge to make that finding," defense lawyer Bright says.

It's also true that statistical studies show that more racially diverse juries are in fact more skeptical of the prosecution's case and less likely to impose the death penalty. A 2004 study by the Capital Jury Project found that in cases with a black defendant and a white victim, the chances of a jury imposing the death sentence were sharply lower if one or more black men served on the jury.

Monday's Supreme Court case is widely viewed as a chance for the justices to once again rap the knuckles of the lower courts, but it's unlikely the court will be willing to establish hard and fast rules to prevent the kind of systemic discrimination that most in the criminal justice system acknowledge has plagued the courts from coast to coast.

Most experts say the only way to do that would be to eliminate or drastically limit peremptory strikes, and that is a non-starter for one simple reason. Most trial lawyers continue to believe these challenges are an essential tool for selecting a jury.

[Valmy]

Why did you strickthrough that last bit there?

[jimmy olsen]

Why did you strickthrough that last bit there?

There was a

[s ]

within the original text and I didn't notice it.

[jimmy olsen]

Looks like the decision will be favorable

http://www.theguardian.com/law/2015/nov/02/us-supreme-court-timothy-foster-racial-discrimination-jury-selection

US supreme court weighs 'strong' new evidence of racial bias in jury selection

Prosecutor dramatically suggests Georgia could allow retrial in case of Timothy Foster over notes that reveal striking off of black jurors from sentencing jury


Dan Roberts in Washington
@RobertsDan

Monday 2 November 2015 20.27 GMT
Last modified on Monday 2 November 2015 23.15 GMT

A lawyer for the prosecution came to the rescue of a prisoner on death row on Monday in a dramatic twist to a US supreme court case described as one of the most egregious cases of courtroom race discrimination seen in decades.

Timothy Foster, a black teenager who confessed to the murder of a white woman in Atlanta in 1986, is appealing his death sentence after legal notes subsequently emerged that revealed how all the black jurors at his sentencing were singled out and excluded from the jury.

But despite a sympathetic reception when the case finally reached the US supreme court after 29 years, Foster's appeal risked immediate collapse when chief justice John Roberts surprised court-watchers by questioning whether he had the power to order a retrial in the case.

More than half of the opening argument from veteran civil rights lawyer Stephen Bright was taken up as he struggled against Roberts's technical challenge, which suggested the case should merely bounce back to the Georgia supreme court rather than be overturned.

Georgia's deputy attorney general, Beth Burton, who was meant to be arguing against the appeal, appeared to help put Foster's hopes of avoiding execution back on track when she acknowledged that state law could allow the case to be retried because "strong" new evidence had emerged.

Her helpful intervention drew gasps from the audience and a stuttering response from Antonin Scalia, the most conservative of the nine justices and a fierce defender of the death penalty, who demanded that Burton repeat what she had just said.

"Well, that's the end of it, isn't it?" asked justice Stephen Breyer when she did.

"It is. It is the end of it," Burton replied. "As much as I would like it to be [otherwise], when you have new evidence, such as in this case – and it is strong evidence – that the court feels like it has to look at, then you are beyond the [relevant legal] bar."

The strong new evidence came in the form of notes taken by prosecutors when they were deciding which potential jurors to strike off the jury, which revealed they had designated all African Americans on the list with a "B" against their name.

Of the six jurors marked "definite no" by prosecutors, five were African American, while the only white person struck off the list had a declared opposition to the death penalty so should not have been included anyway.

Other black jurors were struck off for false reasons, such as misunderstood religious beliefs, or factors such as age that were not applied to white jurors.

The defence team argued the notes amounted to an "arsenal of smoking guns" and said it was vital that the supreme court reinforce its ruling in an earlier test case – Batson v Kentucky – which requires prosecutors to demonstrate that race is not the motive for striking off minorities from the jury.

"If this court, as it said so many times, is engaged in unceasing efforts to end race discrimination in the criminal courts, then strikes motivated by race cannot be tolerable," said Bright.

Once the procedural discussions were concluded, a majority of justices appeared to side with Foster, suggesting he may yet have his death sentence overturned and a retrial ordered.

"Isn't this as clear a Batson violation as the court is ever going to see?" said justice Elena Kagan.

Breyer claimed "any reasonable person looking at this" would agree that prosecutors were looking to "discriminate on the basis of race" when they removed all the black candidates from the jury.

The state of Georgia argues that the notes made by its prosecutors were merely a sign that they were aware of the sensitivity of dismissing black jurors and wanted to take extra care to record the non-racial reasons for their decision.

But Foster's appeal rests on the argument that many of the reasons subsequently given by prosecutors do not stand up to close scrutiny and left him with a jury less likely to consider crucial mitigating factors such as alleged learning difficulties when deciding on his sentence.

Justice Scalia argued it should be left up to the original trial court to determine whether the prosecutors had passed the so-called "Batson test" by coming up with valid reasons.

"Surely it is the judge that hears the testimony who is best able to judge whether asserted reasons are phony reasons or not," he said.

The case also still faces some of the potential procedural hurdles first raised by chief justice Roberts and will decided upon by the supreme court next year.

[Eddie Teach]

They should stop letting prosecutors have peremptory challenges.

[Admiral Yi]

Just prosecutors?

[Eddie Teach]

Yes.

[Barrister]

Pre-emptory challenges are a funny thing.  You have to make a snap judgment based on very little information so a big part of that decision is based on personal appearance - of which race obviously is a big factor.

But in my experience there's also a reverse-racism factor as well.  If race will be any kind of factor (like the victim and accused are of different races) I DO NOT WANT an all-white jury.  Because you know that will be mentioned in news reports.  Up north I would try to get a first nations person on the jury so that it did reflect the overall population.

And PW's suggestion is just dumb.  Either do away with pre-emptory challenges, or don't.  You can't give a tool to one side and not the other.

[Malthus]

My wife got her jury notice the other day ... here's hoping she's not selected. 

[Martinus]

My wife got her jury notice the other day ... here's hoping she's not selected. 

She should just say she is Ukrainian and believes UPA was right.

[Valmy]

My wife got her jury notice the other day ... here's hoping she's not selected. 

I remember when I got called into federal service. I had to go down to the Federal building and they said 'anybody who cannot serve approach the bench' and like two guys went up and eventually were let go. Then they were like 'Ok the rest of you are on juries'. Damn I thought some attorney was going to carefully select me for biases and stuff. I was all ready to profess my desire for Texan independence and resist Federal oppression. Oh well. At least I got paid very little and got free coffee during my service.

[Malthus]

My wife got her jury notice the other day ... here's hoping she's not selected. 

She should just say she is Ukrainian and believes UPA was right.

Few here would have the first clue what that was. 

[Admiral Yi]

Yes.

Any particular reason?

[DGuller]

You can't give a tool to one side and not the other.

You mean like access to police resources?

[Razgovory]

You can't give a tool to one side and not the other.

You mean like access to police resources?

Do you have any evidence of police withholding exculpatory evidence?