The Supreme Court’s decision earlier this week in Foster v. Chatman was notable more for what it showed than for what it said. What the Court said, 7-1, was that Georgia prosecutors violated the Constitution’s ban on racial discrimination in the 1987 capital murder trial of an African American man, Timothy Foster. Foster’s trial was held just months after the Supreme Court ruled, in Batson v. Kentucky, that prosecutors could not remove jurors based on race. Nonetheless the prosecutors in Foster’s case used their challenges to rid the jury of any black members, and notes in the prosecutors’ files–obtained years later by the defense through Georgia’s open records law—made clear that this was no accident. The notes flagged every black member of the jury venire, called attention to their race, and identified all of them as “definite NO’s.” On top of that, the ostensible, race neutral explanations the prosecutors offered in retrospect for striking at least two of the black jurors were transparently false, partly because the explanations applied equally or more strongly to white jurors the prosecutors left on the jury, and partly because the explanations kept changing. Writing for the Supreme Court, Chief Justice Roberts was visibly angered—and justifiably so—by prosecutorial justifications he dismissed as “nonsense” and “pretextual.”
The facts of Foster were so extreme that it would have been hard for the Court to rule the other way, unless it wanted to make Batson virtually meaningless. (Justice Thomas, the lone dissenter, argued, more or less, that if the prosecutors denied racial prejudice and the trial judge believed them, that should be the end of it—an approach that would reduce Batson from a rule to a pious exhortation.) But precisely because the record in Foster was so compelling, the case will have little value as precedent. Defendants will very rarely have access to the prosecutors’ notes from jury selection. And prosecutors in the future are unlikely to keep notes in their files highlighting the names of all the African Americans on the venire, or candidly discussing—as the notes in Foster did—what the prosecution should do “[i]f it comes down to having to pick one of the black jurors.”
Part of what Foster demonstrates, ironically, is how easy it is for prosecutors to violate Batson and get away with it. Despite the flimsy and inconsistent explanations for the jury strikes in Foster, it is doubtful the Supreme Court would have taken the case if the prosecutors hadn’t kept such damning notes and the defense hadn’t gotten hold of them. Even with those notes, the Georgia courts found no Batson violation, and Justice Thomas was “flabbergast[ed]” that his colleagues disagreed. And Foster, as Justice Kagan pointed out at oral argument, was about “as clear a Batson violation as the Court is ever going to see.” Once a defendant makes a prima facie showing that the prosecutor removed jurors based on race, Batson requires the prosecutor to give a “race neutral” explanation for the strikes; the judge then decides if those explanations are merely pretextual. But in most cases, once a prosecutor has articulated a race neutral explanation for striking a juror, that is the end of it. There rarely is proof that the prosecutor is lying, and it is easy for prosecutors to find race neutral explanations, because the explanations don’t have to make much sense.
The whole point of peremptory challenges—the kind of challenges governed by Batson—is to allow the lawyers on each side to remove jurors that they can’t actually show are biased or otherwise unqualified. Jurors who are biased or unqualified are excused by the judge “for cause”; peremptory challenges are for jurors who aren’t excused for cause.
The range of factors that can “explain” a peremptory strike is limited only by a lawyer’s imagination. To get a flavor for how peremptory challenges ordinarily operate, consider some of the fake reasons the prosecutors gave for striking black jurors in Foster: the juror was young, the juror was divorced, the juror worked two jobs, the juror gave curt answers during voir dire, the juror seemed nervous, the juror had a brother who counseled drug offenders, the juror was asked too few questions by defense counsel. It happened in Foster that the record showed the prosecutors were lying when they said they cared about these things, but without that proof—which won’t exist in most cases—any of those factors would be perfectly acceptable, perfectly unremarkable grounds for a peremptory challenge. It wouldn’t matter that the prosecutors’ reasoning seemed loopy, half-baked, or capricious; that’s par for the course with peremptory challenges.
And that’s another thing Foster demonstrates: how weak the grounds are for allowing peremptory challenges in the first place. Prosecutors, along with lots of defense attorneys, insist the practice results in fairer juries, but there’s little—actually, zero—evidence for that. In order to allow trial lawyers to indulge their whims and untested intuitions about what kinds of jurors are “pro-prosecution” or “good for the defense,” we tolerate a system that is a kind of Petri dish for racism. When Batson was decided, Justice Marshall argued for abolishing peremptory challenges outright; that was the only way, he said, to take racial discrimination out of jury selection. He was right, and Foster shows some of the reasons why.
David Sklansky is the Stanley Morrison Professor of Law and faculty co-director of the Stanford Criminal Justice Center. He teaches and writes about criminal law, criminal procedure, and evidence.