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SCOTUS Revisits Racism in Jury Selection

By Jonathan R. Tung, Esq. | Last updated on

Almost three decades have passed since the nation's highest court declared that peremptory strikes on the basis of race are a violation of equal protection. In little less than a week, SCOTUS will revisit the issue of racism in jury selection again.

The Supreme Court's review of Foster v. Humphreys is the latest case to highlight what some have called a double standard of justice against blacks in American courts even with the ruling in Batson v. Kentucky.

Conviction of Foster

In 1987, two years after SCOTUS decided Batson, an all white Georgia jury convicted Timothy Foster of the murder of an elderly white woman and sentenced him to death.

Foster appealed his conviction and argued that a conviction by an all white jury was a violation of his constitutional rights. But the Georgia Supreme Court upheld the conviction and reasoned that the prosecutors had not "demonstrated purposeful discrimination" in striking black jurors. Apparently, the judges didn't take a good look at the prosecutor's notes. Or maybe they did.

The Notes From Foster

Had it not been for the later discovery of the original prosecutor's notes from Foster, the case would have been settled. The notes reveal and strongly suggest that the prosecution's original excuses to strike every single prospective black juror from the pool were not nearly as race-neutral as they had claimed -- but in fact very much biased. If the Supreme Court finds this to be true, then it would be a direct violation of the original 1986 decision that made race-based jury selection illegal in this country.

Batson 2.0

In 2008, SCOTUS ruled in Snyder v. Louisiana that a prosecution's non race-based reasons for striking black jurors did not hold water and were "implausible" in light of the fact that prosecutors accepted white jurors who should have been dismissed for the very reasons prosecutors gave in dismissing black prospective jurors. Unfortunately, SCOTUS hedged its bets again by ruling that it was "enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent" could not be lawfully sustained.

There's a problem with this language because it suggests that a peremptory strike that is not motivated in "substantial part" by racism is permissible. Under ideal applications, any strike that is motivated by racism would amount to a Batson violation. There may not be one best way to enforce such a lofty goal, but the basic structure is there. But Snyder sets a very unsettling change in tone in what is and is not an acceptable consideration for jury selection.

So does Snyder mean that some racism is okay?

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