Foster v Chapman: Excluding Jurors Based on Race

In Foster v Chatman (2016), the U.S. Supreme Court held that prosecutors purposely discriminated against a Georgia man facing the death penalty when they dismissed two black jurors during jury selection. The Court’s narrow decision was largely based on the egregious nature of the Batson violations and, therefore, may do little to deter the discriminatory use of race in jury selection.

Timothy Tyrone Foster, a black defendant, was charged with killing an elderly white woman. The prosecutor struck all four black prospective jurors. At trial and on direct appeal, Georgia’s courts denied Foster’s claim of race discrimination under Batson v. Kentucky, 476 U.S. 79 (1986).

During state habeas corpus proceedings, Foster obtained the prosecution’s notes from jury selection, which were previously withheld. The notes reveal that the prosecution (1) marked the names of the black prospective jurors with a “B” and highlighted them in green on four copies of the venire list; (2) circled the word “BLACK” next to the “Race” question on five juror questionnaires; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors”; and (5) gave explanations for its strikes that were contradicted by its notes.

Nonetheless, the courts again declined to find a Batson violation. Because Foster’s renewed Batson claim “fail[ed] to demonstrate purposeful discrimination,” the court concluded that he had failed to show “any change in the facts sufficient to overcome” the state law doctrine of res judicata. 

Preemptory challenges allow lawyers to exclude a potential juror without providing any reason or explanation. However, in Batson v. Kentucky, the U.S. Supreme Court held that the Equal Protection Clause of the U.S. Constitution prohibited the use of peremptory challenges to exclude prospective jurors based on their race and established a three-part test to determine whether discrimination has occurred. “First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.”

By a vote of 7-1, the Court held that “the decision of the Georgia Supreme Court that Foster failed to show purposeful discrimination was clearly erroneous.” Chief Justice John Roberts wrote the majority opinion.

According to the Court, Foster established purposeful racial discrimination in the prosecution’s dismissal of at least two black jurors. “Two peremptory strikes on the basis of race are two more than the Constitution allows,” the Chief Justice wrote.

As highlighted by Chief Justice Roberts, although prosecutors offered race-neutral justifications for both peremptory challenges, the newly-discovered evidence showed that all of the justifications were merely pretextual. “Evidence that a prosecutor’s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination,” the Chief Justice noted. “Such evidence is compelling with respect to Garrett and Hood and, along with the prosecution’s shifting explanations, misrepresentations of the record, and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was ‘motivated in substantial part by discriminatory intent.’”

Given the new evidence, the majority held that Foster was entitled to have his Batson claim reheard.