By Lisa Soronen

Previously on this blog I have observed that the U.S. Supreme Court has accepted a number of death penalty cases for next term.

One of its most recently accepted cases arises in the context of a capital murder—but the issue it raises isn’t unique to the death penalty. Perhaps, though, it is not a coincidence that the court agreed to re-examine the issue of race discrimination in a death penalty case where the stakes are so high.

In Foster v. Humphries, the Supreme Court will decide whether potential black jurors were purposely excluded, in violation of Batson v. Kentucky.

In 1987, Timothy Tyrone Foster, who is black, was sentenced to death for murdering an elderly white woman. The jury was all-white. The prosecutor peremptorily struck all four prospective black jurors. Prosecutors may strike a number of jurors for any unstated reason except because of race and sex, the Supreme Court has held.

In 2006, through a public records request, Foster gained access to the prosecutor’s jury selection notes.

The names of the black jurors were highlighted in green and a key indicated that green represented black. “Black” was circled on the black jurors’ questionnaires, and prospective black jurors were identified as B#1, B#2, and B#3 in the notes.

The prosecution’s investigator ranked black jurors against each other and recommended one in case a black juror had to be selected.

Baston established a three-step process where the defendant ultimately must establish that the prosecutor engaged in purposeful discrimination.

The Georgia Superior Court concluded that the prosecutor’s notes fail to demonstrate purposeful discrimination and even if they did that the prosecutor cited numerous race-neutral reasons for striking each prospective black juror.

Foster responds:  “[T]he ultimate question is not whether the prosecution’s ‘race-neutral’ reasons were related to the case and reasonably specific, but instead whether the stated reasons were the actual reasons for the strikes in light of all relevant circumstances,” including the relatively newly discovered prosecutor’s notes. 

Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.