Supreme Court justices criticize racial bias in jury selection

WASHINGTON — The Supreme Court appeared ready Monday to strike a blow against racial discrimination in jury selection.

Faced with a black defendant's murder conviction and death sentence at the hands of an all-white Georgia jury, the justices heard evidence that prosecutors singled out and struck all prospective black jurors in the 1987 trial — just a year after the high court had declared such actions unconstitutional.

Although prosecutors claimed other reasons for their peremptory strikes, Justice Elena Kagan said, "what it really was, was they wanted to get the black people off the jury."

That analysis from the court's more liberal justices was not refuted by the conservatives. Justice Anthony Kennedy said prosecutors wrongly interpreted the Supreme Court's dictate about racial discrimination. Chief Justice John Roberts and Justice Samuel Alito noted prosecutors objected to some of the black jurors because they were women or relatively young, but they did not refute the emphasis on race.

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Timothy Foster's murder of an elderly white woman in northwest Georgia happened nearly 30 years ago, but it wasn't until 2006 that defense lawyers obtained the prosecution's notes through an open records request. They showed what Foster's lead attorney, Stephen Bright, characterized in court as "an arsenal of smoking guns."

During the selection process, prosecutors highlighted the names of potential black jurors in green, circled the word "black" on questionnaires and added handy notations such as "B#1" and "B#2." On a sheet labeled "definite NO's," they listed the last five blacks in the jury pool on top. They ranked them in case "it comes down to having to pick one of the black jurors."

And at sentencing, the prosecutor urged the jury to impose death in order to "deter other people out there in the projects" — where 90% of the residents were black.

The case is important on two levels. If the justices find that Foster's constitutional rights were violated and instruct that he be given a new trial, the ruling could impact the way prosecutors, defense attorneys and trial judges handle jury selection in the future. And because Foster received a death sentence, it could fuel concerns previously voiced by two justices that the death penalty itself may be unconstitutional — in this case because of racial bias.

Despite the Supreme Court's 1986 ruling in Batson v. Kentucky that said prosecutors cannot have jurors dismissed because of their race, civil rights groups contend the practice still exists today.

Georgia officials told the court that prosecutors were expecting to be accused of racial discrimination, so they singled out potential black jurors in their notes and listed several race-neutral reasons for opposing each one. But Deputy Attorney General Beth Burton acknowledged that the prosecutors' notes "certainly can be interpreted in two ways."

Justice Stephen Breyer likened their long list of race-neutral reasons to his grandchildren giving him myriad reasons why they don't want to do their homework. "Any reasonable person looking at this would say, 'No, his reason was a purpose to discriminate on the basis of race,'" he said.

A new study by the anti-death-penalty group Reprieve Australia showed that prosecutors in Caddo Parish, La., struck would-be jurors who were black three times as often as others. In 200 verdicts over a 10-year period ending in 2012, juries with fewer than three blacks did not acquit any defendants. When five or more blacks participated, the acquittal rate was 19%.

Another study in North Carolina in 2012 found blacks were twice as likely to be struck from juries by prosecutors. And in Houston County, Ala., from 2005 to 2009, prosecutors removed 80% of blacks qualified for jury duty, producing juries with either one black or none at all.