Fostering Injustice

Late last month the Supreme Court issued a decision that was unremarkable in its obviousness. A black defendant in a capital murder case was convicted by an all-white jury that had been molded by a prosecution hell-bent on preventing participation by any person of color. The Constitution (as interpreted by the Supreme Court) forbids racial discrimination in jury selection, rightly viewing the Fourteenth Amendment’s guarantee of “equal protection of the laws” as protecting citizens’ rights of public service and defendants’ right to a trial free from racial gameplay. And so, in a 7-1 opinion written with unmistakable clarity and without equivocation, the Supreme Court vacated the Georgia Supreme Court’s decision upholding Foster’s conviction. Usually nothing is this simple when it comes to race and the death penalty at the high court. So it’s no surprise that many have applauded the ruling as the triumph of reason over knee-jerk ideology. Indeed, cases just as clear as this one sadly often come out differently, especially in the lower courts. But make no mistake, though every word composed within is true, the Supreme Court’s opinion does not rectify injustice. The methodical reasoning and incremental progression of our legal system and constitutional doctrine, although comforting to a lawyer’s sense of order, leaves Foster a hollow victory—a success in disposition, not reality.

The facts are as follows: At Timothy Foster’s trial for murder and burglary in connection with the 1986 sexual assault and killing of a 79-year old woman, the prosecution struck all four African-American members from the qualified jury pool. In other words, once the judge had removed all persons with potential conflicts or impermissible biases, Foster’s prosecutors used their peremptory strikes—a statutorily established procedure for eliminating a certain number of potential jurors without cause—to remove all of the black members of the potential jury to ensure that the twelve citizens who would hear Foster’s case were white. Foster, unsurprisingly, is African-American; his victim was white. Under the Supreme Court’s landmark case of Batson v. Kentucky, lawyers are prohibited from issuing peremptory strikes on the basis of race. Foster’s lawyers immediately challenged the jury under Batson, requiring the prosecution to offer a race-neutral reason for each of its strikes. After the prosecution provided allegedly race-neutral reasons for each strike, the judge rejected the Batson argument and proceeded to try the case. Foster was convicted and sentenced to death. He has spent the last thirty years on death row.

As with so many things in the law, Batson challenges are easy to make but hard to win. Under the governing framework, once the prosecution articulates a race-neutral reason for a particular strike—an exercise easy enough for even the most bald-faced liar (your honor, I struck the juror because he said he likes to grill and the defendant is accused of murdering his co-worker with a spatula!)—it is incumbent upon the judge to make a factual decision about whether the prosecution acted based on racial prejudice. This requires a finding based on inference, and as judges are loath to accuse state officials of both racial bigotry and lying to a judge on little more than the circumstantial fact that all the black people have been struck the mountain is nearly insurmountable (the trial judge in Foster’s case, of course, did not have access to the after-acquired documents discussed below). On review, what should in theory be an easier task aided by rights of discovery is in fact blocked by different legal and social factors. Appellate judges are extremely hesitant to overturn convictions, especially when the challenge is based on fact-bound procedural issues. Or as the majority opinion succinctly noted: “in the absence of exceptional circumstances, we defer to state court factual findings unless we conclude that they are clearly erroneous.”

After his sentencing, Foster pursued his Batson claim on post-conviction relief and was able to obtain prosecution documents relating to jury selection. These documents included four prosecution copies of the list of potential jurors, with each black member’s name highlighted in green with the letter “B” written next to them. A legend at the top of the documents made clear that the green highlighting “represents Blacks.” Another document circulated within the prosecutor’s office contained a note about one black member of the jury pool, that “[i]f it comes down to having to pick one of the black jurors, [this one] might be okay.” Also uncovered were handwritten notes about three potential black jurors identifying them as B#1, B#2, and B#3, respectively. On each potential juror’s court questionnaire, the prosecution circled the individual’s race. As if this weren’t enough, the first five jurors listed on a discovered “definite NO” list were black.

What case could possibly be clearer than this?

After a first read, the majority seemed to agree. Writing for Slate, Dahlia Lithwick went so far as to describe Roberts’ opinion as “scorching” and “a devastating indictment of the prosecutors.” Compared to the Court’s typical delicate treatment of law enforcement (often in even the most egregious circumstances), Lithwick’s assessment is correct. At various points, Roberts called prosecutors’ arguments “nonsense” and their actions “motivated in substantial part by discriminatory intent.” Roberts also unequivocally insisted that “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.” Certainly compared to those of the other two conservative justices on the Court, Roberts’s opinion was a work of real principle and clear-eyed jurisprudence. In a sour-faced concurring opinion, Justice Samuel Alito agreed with the majority’s conclusion that racial animus infected jury selection, while nonetheless bending over backward to explain how Foster’s conviction could yet be sustained on remand. Meanwhile, Justice Clarence Thomas, ever the solitary, mean-spirited iconoclast, insisted on ostrich-like deference to the trial court’s judgment. “Perhaps the Court’s decision to reconsider a decades-old Batson claim based on newly discovered evidence would be less alarming,” Thomas wrote, “if the new evidence revealed that the trial court had misjudged the prosecutors’ reasons for striking [the black jurors]. It does not.” Presumably the prosecution’s decision to strike every eligible black venireman while simultaneously creating multiple documents evincing its singular focus on excluding the African-American members of their pool were just idle coincidence.

The majority set aside these prejudices—toward law enforcement and trial courts and away from invalidating the convictions of heinous crimes on procedural technicalities—and did the right thing in methodical and scrupulous fashion. Roberts carefully went through each of the prosecution’s proffered justifications for striking each black juror and dispelled with each after a long and torturous comparison of the treatment of white jurors. His writing is a testament to sharp and careful logic. And that is precisely the problem with the Chief Justice’s opinion. It is exhaustively detailed and painstakingly reasoned. It explains every nuance of the case and attempts to prevent any rebuttal. It is an exemplar of careful, reasoned opinion-writing, all the while reaching the clearly correct conclusion. And yet, its resounding endorsement of Foster’s appellate claim does little to remedy injustice now and in the future.

Thirty years have passed since Foster was placed on death row. Thirty years have gone by since prosecutors stacked the deck against him and denied both him and the public a fair trial. During that time, Foster was neither fully held to account for the heinous crime he was convicted of as prescribed by Georgia law, nor will he ever receive the fair trial the Constitution guarantees him at a time when it could actually save his life. The length of litigation and our costly and overburdened justice system are not primarily the fault or responsibility of the Supreme Court. But approaching the law as if it were a complex logic puzzle—a tautology all too common in today’s law schools—undermines the meaningfulness of our legal rights. It defeats the purpose of judicial review.

Affect matters when it comes to enforcing constitutional rights. Where is the outrage? Where is the indication that egregious prosecutorial violations such as this will inform the Court’s future approach to criminal procedure? Where is the admission that the pillars of legal doctrine the Court has built on the foundation that law enforcement will evenly administer the law are faulty? Where is the acknowledgment that a blind deference to state trial courts in far-flung locales often comes at the expense of justice, not in furtherance of it? These views are entirely absent.

It is not as if Timothy Foster has won a victory in any meaningful sense. True, he will not be executed—at least not soon. Yet, the Supreme Court’s decision does not even guarantee him a new trial. At issue was not whether Foster’s Batson claim should vacate his conviction; instead, all that was at issue was whether the Georgia Supreme Court’s decision that Foster’s claim had no “arguable merit” entitling him to review was correct. On remand, however, it is still for the Georgia Supreme Court to decide whether Foster’s conviction must fall as a result of the violation. The state supreme court may instead decide that such an argument has been procedurally defaulted or barred by a prior Georgia decision allowed to become final (a point made exhaustively in Justice Alito’s concurring opinion). So after thirty years, after blatant discrimination, after a full vindication of the merit of his legal challenge, Foster may very well never get his first, fair chance to present his case. Meanwhile, thousands of defendants will continue to be railroaded by the systemic racism in jury selection given that the likelihood and consequences of detection are light, especially for a minimally more discerning prosecutor.

A seasoned lawyer will no doubt note that these problems are mostly not the fault of the current Supreme Court, which simply decided the legal issue before it. However, either Chief Justice Roberts and his cohorts are content to reverse a lower court on this issue every decade and leave the problem to fester, or they are committed to doing more. The Foster opinion, as so often is the case in the dusty, passionless world of the Supreme Court, is clear, correct, forceful…and empty.


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