CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, September 26, 2016

Marder on Foster v. Chatman and the Peremptory Challenge

Marder_Nancy_portraitNancy S. Marder (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Foster v. Chatman: A Missed Opportunity for Batson and the Peremptory Challenge on SSRN. Here is the abstract:

In the 2015 Term, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way to eliminate discriminatory peremptory challenges is to eliminate the peremptory challenge.

In this capital case from Georgia, petitioner Timothy Tyrone Foster, an African-American man, claimed that the prosecutors violated Batson by exercising race-based peremptories and striking four African-American prospective jurors. Foster was tried, convicted, and sentenced to death by an all-white jury. What made this case so unusual was that Foster, through the Georgia Open Records Act, was able to obtain the prosecutors’ notes. In the notes, the prosecution had highlighted the names of African-American prospective jurors on the venire list, circled their race on their questionnaires and noted it on their juror cards, and put them on a “definite NO’s” list. As the notes make clear, the prosecutors focused on the African-American prospective jurors’ race, even though they gave seemingly race-neutral reasons to explain why they removed them.

The Court in Foster undertook a close reading of the prosecutors’ reasons and found race to be the basis for the prosecutors’ peremptory challenges. This Article identifies the strengths and weaknesses of the Court’s opinion in Foster. However, Foster’s case was unusual because the prosecutors’ notes were in effect a “smoking gun.” Without such notes, the prosecutors’ seemingly race-neutral explanations would have sufficed under Batson. The Court needs to recognize the ineffectiveness of Batson. It could tweak the Batson test in different ways, such as by giving more weight to discriminatory effects or practices or by devising a stronger remedy. In the end, however, the only remedy that is adequate to the task is the one that Justice Marshall proposed in his Batson concurrence thirty years ago: eliminate peremptory challenges.

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