Analysis

The Supreme Court made a new effort on Monday to restrict prosecutors’ power to strike black jurors in a racially sensitive case, but the result was so tightly focused on what happened at just one trial that it was doubtful that the new ruling would do much to end the practice.  What made the difference this time, it appeared, was defense lawyers’ discovery of telltale files obtained from prosecutors years after the trial was over.

That may not happen again, but at least not often.  Even if prosecutors were deliberately trying to keep all blacks from serving on the jury in this specific Georgia murder case, as the Supreme Court found on Monday, they also have contended that they created the files as they were trying to figure out how to deal with race in jury selection under a then-recent Supreme Court ruling.  With that ruling condemning a racial motive, it is doubtful that prosecutors in many cases since then would create such revealing files, with clear markings next to the names of potential black jurors to be stricken from the jury pool.

The decision in Foster v. Chatman dealt with the trial practice of “peremptory strikes” of members of a jury pool — that is, striking a pool member without giving a reason to do so.  Until the 1986 ruling in Batson v. Kentucky, the use of such strikes could not be challenged.

The Batson decision, however, made it unconstitutional to do that intentionally, when race is the motive. In today’s decision, the Court ruled that the conviction and death sentence twenty-nine years ago of a young black man, Timothy Tyrone Foster of Rome, Ga., for murdering an elderly white woman was unconstitutional, based on the use of peremptory strikes to keep all blacks from serving on the jury.  The Justices voted seven to one for that conclusion.

It was unclear, however, whether the decision will actually nullify Foster’s conviction or his death sentence.  That’s because two Justices suggested that state courts in Georgia may yet be able — when the case returns to them — to scuttle Foster’s challenge on a procedural point under state law.  That procedural point was not enough to keep the Court from hearing Foster’s challenge to the selection of his jury, but it conceivably could be used by prosecutors to sustain the guilty verdict and sentence after all. The procedural theory for such a result would be that Foster was not free to reopen the jury-selection issue after losing on it in an earlier challenge in state courts.

Lyle Denniston, Opinion analysis: Telltale files on race-based jury selection, SCOTUSBLOG (May. 23, 2016, 2:22 PM), http://www.scotusblog.com/2016/05/opinion-analysis- telltale-files- on-race- based-jury-selection/