[Editor’s note: Emily Coward, the author of today’s post, is an attorney who works with the indigent defense education team at the School of Government. She is a co-author of Raising Issues of Race in North Carolina Criminal Cases.]
In Foster v. Chatman, a 7-1 opinion authored by Chief Justice John Roberts, the U.S. Supreme Court held that prosecutors in Georgia discriminated on the basis of race during jury selection in a 1987 death penalty trial. This post explains the ruling and considers its impact on Batson challenges in North Carolina.
Facts and procedural history
Timothy Tyrone Foster, a Black nineteen year old from Georgia, was charged with burglary and murder for burglarizing, beating, sexually assaulting, and murdering an elderly White woman in 1986, and prosecutors sought the death penalty. During jury selection, prosecutors used peremptory strikes (those that can be used for any non-discriminatory reason) to remove all four of the Black potential jurors from the pool of 41 qualified jurors. Foster raised a Batson challenge, alleging that the jurors were struck unconstitutionally on the basis of their race, which the trial judge rejected. Foster was convicted and sentenced to death by an all-White jury. Right after his conviction, Foster moved for a new trial. At the hearing on the motion, one of the prosecutors testified that the challenged peremptory strikes were “based on many factors and not purely on race.” The trial judge denied the motion for a new trial.
On direct appeal, the Georgia Supreme Court upheld the trial court’s rejection of Foster’s Batson claim. Foster sought a writ of habeas corpus from a Georgia Superior Court. While his state habeas petition was pending, and decades after his original conviction, Foster made an open records request pursuant to Georgia law and obtained documents from the State’s jury selection file, including:
- Copies of the jury venire list with the letter “B” handwritten next to the names of all Black potential jurors; these names were also highlighted in green with a note indicating that green highlighting “represents Blacks.”
- A draft affidavit from an investigator assisting the prosecution containing the following conclusion: “If it comes down to having to pick one of the black jurors, [this one] might be okay. This is solely my opinion. . . . Upon picking of the jury after listening to all of the jurors we had to pick, if we had to pick a black juror I recommend that [this juror] be one of the jurors.”
- References to three Black prospective jurors as “B1”, “B2”, and “B3”.
- A list of qualified jurors with “N” for no listed next to all Black qualified jurors.
- A handwritten document listing “definite NO’s”, which included all Black qualified jurors.
- A handwritten document titled “Church of Christ” containing the note “NO. No Black”
- Juror questionnaires with the race of the juror circled.
The superior court admitted the documents into evidence but rejected Foster’s habeas petition, finding that the Batson claim was not reviewable under the doctrine of res judicata and also that it failed on the merits. The Georgia Supreme Court refused to allow Foster to pursue an appeal of his habeas petition.
The Supreme Court’s opinion
After determining that the Georgia Supreme Court’s order involved a federal question that the Court had the authority to review, the Court turned to the three-step Batson test, described by Alyson Grine in a recent blog post. Since the parties agreed on the first two steps, the Foster court focused on the third step: whether, in the totality of the circumstances, the State’s race-neutral justifications for striking Black panelists were credible, or whether they were instead a pretext for purposeful discrimination. The Court considered whether prosecutors had kept White jurors who had the characteristics that the State had pointed to as justifications for striking the Black jurors. Using this process, known as “comparative juror analysis,” the Court found compelling evidence of discrimination for the strikes of two of the Black potential jurors. Additionally, the Court found that evidence of the prosecutors’ “shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecutor’s file” supported a conclusion that the same two strikes were “motivated in substantial part by discriminatory intent.” Foster v. Chatman, 578 U.S. ___ (2016), Slip Opinion at 23. The Court found that the Georgia Supreme Court’s conclusion to the contrary was clearly erroneous, and therefore reversed.
In keeping with other recent Batson decisions from the high court, Foster stands for the following:
(1) Credibility is key. Batson challenges ultimately come down to the credibility of the prosecutor’s proffered race-neutral justifications for a challenged peremptory strike. In most cases, comparative juror analysis will be the best evidence bearing on credibility, as it is rare to find direct evidence of discriminatory intent. While the Court defers to credibility determinations made by the trial judge, those determinations must be supported by the record: “[d]eference by definition does not preclude relief.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
(2) Jurors need not be identical to be compared. Courts should not insist that jurors be identical when conducting comparative juror analysis. See, e.g., Miller El v. Dreke, 545 U.S.231, 247 n.6 (2005) (observing that the Batson framework would be rendered “inoperable” if courts were to require defendants to compare only individuals who are “identical in all respects”). For example, in Foster, prosecutors asserted that a peremptory strike of a Black potential juror was based in part on the fact that the potential juror had a son around the same age as the defendant. However, two White potential jurors who were not struck by the State also had sons around the same age as the defendant. Prosecutors argued (and the lower court found) that these facts were not comparable because the Black potential juror’s son had been convicted of the crime of theft, which the State described as “basically the same thing that this defendant is charged with.” The Court described this assertion as “nonsense,” and explained that this “‘implausible’ and ‘fantastic’ assertion” supported the Court’s determination that the prosecutor’s stated concern about the stricken juror’s son was pretextual. Foster v. Chatman, 578 U.S. ___ (2016), Slip Opinion at 19-20.
(3) All relevant circumstantial evidence should be considered. In determining the credibility of a race-neutral justification, courts should consider the totality of circumstances, including circumstantial evidence. In Foster, the State objected to the Court’s consideration of certain documents within the prosecutors’ file because the authorship of the documents was unclear. The state habeas court accepted the file into evidence, finding that the State’s objections went to weight rather than admissibility. The U.S. Supreme Court approved this approach. The Court again emphasized that, when “considering a Batson [challenge] . . . all of the circumstances that bear upon the issue of racial animosity must be consulted.” Foster, Slip Opinion at 11, quoting Snyder v. Louisiana, 552 U.S. 472, 478 (2008).
What does the Foster case mean for jury selection challenges in North Carolina?
This case may generate renewed attention on allegations of race-based peremptory strikes in North Carolina. Writing for Slate, Dahlia Lithwick describes Foster as a strange case in part because of Georgia’s “strange open records laws” that enabled Foster to obtain the prosecutor’s jury selection notes. The implication is that, in states with more limited open records laws, evidence probative of juror discrimination allegations may never be uncovered. That concern may be somewhat less pronounced in North Carolina, where open-file discovery laws enable defendants in post-conviction proceedings to obtain the prosecutors’ complete files, including work product. See G.S. 15A-1415(f). Additionally, as a result of the Racial Justice Act (RJA) litigation and related studies, North Carolina defendants also may be able to obtain statistical evidence, comparative juror analysis, and other information to support Batson claims. See Raising Issues of Race in North Carolina Criminal Cases Section 7.4 (Litigating a Batson Challenge) (UNC School of Government, 2014).
For example, a recent study examining jury selection in North Carolina capital cases was presented to the Foster court in an amicus brief filed by an unlikely group: former state and federal prosecutors arguing in support of Timothy Foster’s Batson claim. The amicus brief cited a study finding disparate strike rates of African-Americans by prosecutors in North Carolina capital trials, and described a North Carolina training for district attorneys that included a list of justifications to use in defending against Batson challenges. Foster v. Chatman, Brief of Joseph Degenova, et al. in support of Petitioner. Additional data regarding North Carolina jury selection patterns may be available as part of a new study, to be published shortly by Wake Forest Law Professors Kavi Chavis-Simmons, Gregory Park, and Ronald Wright, examining the exercise of peremptory strikes by prosecutors in felony trials in all of North Carolina’s 100 counties. This type of evidence may be relevant to the ongoing Racial Justice Act litigation (see Jeff Welty’s blog post about the State Supreme Court’s remand of RJA cases to Superior Court) as well as to future Batson claims.