Supreme Court to Review Batson Challenge in Georgia Death Penalty Case

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court granted certiorari today in Foster v. Humphrey to the Georgia Supreme Court denying post-conviction relief. 

According to the petition, in 1987, an all-white jury convicted Timothy Tyrone Foster, a "poor, black, intellectually compromised eighteen year old" of the murder of an elderly white woman.  At trial, one black potential juror was removed for cause, and the prosecutors removed all four of the remaining black prospective jurors by peremptory strike, and proffered race-neutral reasons when defense counsel raised a challenge under the then-recent case of  Batson v. Kentucky (1986).  The judge rejected defense counsel's argument that the race-neutral reasons were pretexual and denied the Batson challenge.  The Georgia courts affirmed.

Almost twenty years later, pursuant to a request under the state open records act, Foster gained access to the prosecution team's jury selection notes, which included highlighting the black potential jurors (image at right), circling the word "black" as an answer to the race question on the juror questionnaire, identifying the black potential jurors as B#1, B#2, and B#3 in the notes, and a draft affidavit by the prosecution investigator stating "“if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.”  (The affidavit was originally submitted to the court with all mentions of race excised). 

In the post-conviction proceeding, the court held that "[t]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists."  The Georgia Supreme Court declined review.

In granting certiorari, the United States Supreme Court could certainly agree with the Georgia courts and simply affirm.  Assuming the Court granted certiorari because of some disagreement with the conclusions, the Court might take a broader approach.  According to the petition in Foster, the prosecution "proffered a combined forty reasons for striking" the four black potential jurors.  Because there are almost always "neutral" reasons for exercising a peremptory challenge - - - given that it can be based on essentially a "hunch" - - - proving racial motivation and discrimination can be difficult.  The Court has the opportunity to revisit Batson and the problem of distinguishing between race-neutral and pretextual reasons, perhaps providing a more workable and fair rule.