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Keeping up with rulings from the United States Supreme Court is just as important to us as blogging about relevant practitioner issues. Please use this page as a way to stay updated on the changes in the Criminal Law area as we work to research, analyze, predict, and summarize the decisions of the Supreme Court. 

 Recent Supreme Court Cases

Foster v. Chatman

No. 14-8349

Argued November 2, 2015


Facts:  In 1986, the Supreme Court held in Batson v. Kentucky that during jury selection prosecutors are prohibited from using their preemptory strike on potential jurors because of race.  On November 2, 2015, in the case of Foster v. Chatman, the Supreme Court was asked to revisit this ruling to provide further guidance for lower courts when faced with potential issues of racially driven preemptory strikes.  The case stemmed from Georgia where Foster, a black 18-year-old, was charged with murdering a white woman and sentenced to death.  On appeal, Foster’s defense team was able to get a hold of the prosecution’s notes and found that the prosecutors had highlighted and ranked every black juror in order of preference using the symbol “B” and had written contradictory reasons for striking each potential black juror.  After the petitioner was denied habeas corpus relief from the Superior Court of Butts County, Georgia, the Supreme Court of the United States granted certiorari. 


Issue:  Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky.


Arguments:  The petitioner’s overall thesis is that prosecution had a mind to discriminate when picking an all white jury and striking the potential black jurors on the basis of race.  By identifying, highlighting, and labeling all of the black jurors by their race on four separate copies of the juror list and then sending those highlighted copies throughout the office, the prosecution demonstrated a level of comfortableness in identifying jurors solely on the basis of race.  Additionally, a second list was generated with only the black prospective jurors ranked against themselves and had written notes on “which B might be best to put in the jury” in addition to a “definite NOs” list.  On the issue of whether the prosecution had legitimate reasons to strike the black jurors, the petitioner argued that they exaggerated the faults of the black jurors and essentially contradicted themselves in their own notes by giving reasons to strike that applied to white jurors as well.  For example, one prospective black juror was struck because the prosecution felt her age, thirty-four, was too close to the defendant when the prosecution had accepted eight white jurors who were under the age of thirty-five. 


The respondent argued that none of the evidence admitted directly proves that the strike was racially charged, but that the attorneys had well developed reasons for striking the jurors.  Additionally, the respondent argued that the defendant did not provide enough evidence to show that the similarly situated white prospective jurors were chosen over the black jurors.  The respondent claims that by placing a letter “B” next to all of the black jurors to identify their race is not racially discriminatory.  The respondent goes further to distinguish that the notes next to all of the black jurors were no different than notes next to the white jurors and were merely opinions on each individual.  The argument also points out that the prosecution’s notes indicate that they were seeking a black juror to diversify the group, but did not find a suitable black juror for the job.  The notes were in-court statements that indicated reasons for the strikes, and none of the reasons were racially driven.  The respondent concludes that because the defense did not clearly show that the strikes were racially driven, the Court cannot determine whether the prosecution abused its discretion when striking potential jurors on the basis of race.


On the issue of whether there is proof that similarly situated white jurors were chosen over black jurors on the basis of race, the respondent argues that there were key distinctions in the compared jurors.  For example, one black juror was struck for working with the Head Start Program while white jurors who were teachers were not struck.  This was due to the key distinction that the Head Start Program works directly with underprivileged children, where as teachers work with all children.  


Practitioner Implications:  This case can prove decisive for the Supreme Court given the timing and relevance.  In the past few months, much light has been shed on the issue of racial discrepancies within the criminal justice system.  Jury selection is no different.  This is a chance for the Supreme Court to either work towards limiting the discretion given to prosecutors, or to uphold the current system in place. Given the facts of the case and the amount of evidence produced by the plaintiff, it is very likely that the courts will find the prosecution’s preemptive strikes were racially driven.  The respondent’s best argument is that the qualities in the black jurors were not well suited for a jury; however, the plaintiff’s directly rebut this argument citing specific contradictions that the prosecutors made in their jury notes.  To say that a black juror who works as a Head Start teacher is not suitable for jury because she works primarily with underprivileged children while allowing white jurors who are teachers or teaching aids to be on the jury because they work with children of all socioeconomic backgrounds is discriminatory in itself.  


The Supreme Court should view these distinctions made by the prosecutor as a loophole in the system that prosecutor’s use to get around directly stating they are racially motivated to strike jurors.  The evidence in this case presents the most clear-cut example of the prosecution considering race as a factor in utilizing their preemptory strikes; however, it is still extremely difficult for the Supreme Court to provide a remedy to possible race discrimination.  Because of the secrecy of preemptory strikes, it is difficult for attorneys to prove a racially motivated strike without clear-cut evidence such as notes from the other side.  Perhaps the Supreme Court will order that notes from jury selection be included in discovery to further create transparency between the two sides, which will help monitor motivations behind strikes.  With this holding, the Supreme Court could potentially move the jury selection process into the present with a clearer method for preventing racially motivated preemptory strikes.


Written By: Emily Wolfford, Senior Editor

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