The Ongoing Problem of Discrimination in Jury Selection

I will have more on the case after oral argument, but Robert Barnes provides some very useful background on Foster v. Chatman:

Jury selection prep work for the Georgia prosecutors included singling out all the black potential jurors and ranking them against one another. If there was no way to keep them all off the jury, the prosecutors’ notes indicated, there was one who might be “okay.”

But certainly not “B#1” — he was at the top of their list labeled “Definite NOs.”

As it turned out, there were not any “B”s — the lawyers’ shorthand for African Americans — on the jury in Rome, Ga., that in 1987 convicted black teenager Timothy Tyrone Foster of the brutal murder of an elderly white woman and sentenced him to death.

The rare discovery of the prosecutors’ racially coded notes is at the center of a coming Supreme Court case requesting a new trial for Foster. But the bigger issue for the justices, when they hear the case Nov. 2, is whether allowing lawyers to peremptorily dismiss potential jurors has simply become a way to discriminate.

I suspect that on this set of facts, there’s a good chance that the Court will find a 14th Amendment violation. Even Alito has found for defendants when the evidence of discrimination is overwhelming enough. But a narrow positive ruling wouldn’t really be of much value, since prosecutors who use peremptory challenges to systematically exclude jurors of color are rarely dumb enough to leave a paper trial. The larger issue is that peremptory challenges make extensive racial discrimination in jury selection inevitable.