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Supreme Court Faces 'Arsenal Of Smoking Guns' In Case Of Racism In Jury Selection

The Huffington Post The Huffington Post 3/11/2015 Cristian Farias

WASHINGTON -- A high-profile case that could redefine how lower courts grapple with racial discrimination in jury selection may not be the slam-dunk advocates had hoped.

On Monday, the U.S. Supreme Court heard arguments in Foster v. Chatman, the case of a Georgia death-row inmate who wants the justices to rule that prosecutors in his 1987 murder trial unconstitutionally excluded every black person from the jury pool for no other reason but their race.

Timothy Foster's lawyer, Stephen Bright, had barely begun to recount the prosecution's actions to the court when Chief Justice John Roberts derailed his line of argument with an esoteric legal question for which he seemed ill-prepared.

"Mr. Bright, maybe you could address first the question we raised on Friday with respect to which court certiorari should be directed to," Roberts said.

If that sounds like a foreign language to a lay reader, there's reason to believe Bright was only slightly less confused by it. It turns out the Supreme Court last Friday addressed a letter to Bright and Georgia's deputy attorney general telling them to expect questions on a rather involved procedural issue for which neither party really had much time to prepare.

The court wanted to know if it had the power to review the troubling record Bright was about to present in the first place. More than one justice even floated the idea of asking the Georgia Supreme Court to clarify a few matters of state law for them -- a sign that they may be hesitant to rule in the case.

The unexpected detour took up nearly half of the hearing in Foster v. Chatman, and may even imperil Foster's chances that the Supreme Court will give him an opportunity for a new trial.

At one point, Justice Elena Kagan seemed exasperated by all the preliminary back and forth.

"Can I go to the merits? Is that all right?" she wondered out loud, itching to talk about the particulars of Foster's case.

Foster's lawyer made the best of the limited time he had and appealed to priorcases where the justices had "engaged in unceasing efforts to end race discrimination in the criminal courts."

Against that backdrop, Bright told the court he and his team had uncovered "an arsenal of smoking guns in this case" -- namely, notes from the prosecution unearthed decades after the trial that left no doubt that potential jurors in the Foster case were struck because they were black.

Among the "smoking guns" were juror lists obtained under Georgia's open-records law that revealed the prosecution had systematically excluded all black members of the jury pool ahead of Foster's trial.

The prosecutors weren't so subtle about the exclusion. The name of every potential juror who was black was highlighted in green and marked with the letter "B," with a key at the top of each juror list indicating that green meant the person was black. The race of each black juror was circled in separate questionnaire cards. None of them sat in Foster's trial.

In light of that damning record, Kagan leveled with the lawyer for the state of Georgia.

"Look," she said. "You have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the African-American prospective jurors as a group, that they had basically said, 'We don't want any of these people.'"

Which she followed up with: "Isn't this as clear a Batson violation as a court is ever going to see?"

That was a reference to Batson v. Kentucky, a key 1986 case that told lawyers the Constitution barred them from relying on race whenever they struck jurors they simply didn't want on a jury. 

But the Batson rule has been gamed by both prosecutors and defense attorneys over the years, and just about any lawyer can come up with plausible, "race-neutral" reasons to explain why they excluded a potential juror.

Georgia prosecutors, in Justice Anthony Kennedy's words, had offered a "laundry list" of reasons to exclude black jurors from the jury -- things such as age, church affiliation and their relatives' criminal history. But all of those rationalizations seemed suspect to some of the justices, especially when stacked against the prosecutors' notes in the Foster file.

"Batson is a rule about purposeful discrimination, about intent," said Kagan. "And so it doesn't really matter that there might have been a bunch of valid reasons out there, if it was clear that the prosecutor was thinking about race."

As the hearing wound down, it was far from clear if the justices were ready to find purposeful discrimination and side with Foster, or if they'd gotten sidetracked with the procedural issues that dominated a good chunk of the hearing.

A decision in Foster v. Chatman is expected sometime before June.

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