Friday, June 3, 2016
Among this term’s cases that were not deadlocked due to a missing 9th justice, is Foster v. Chatman.
Mr. Foster is a cognitively challenged black man who has been imprisoned nearly thirty years waiting execution following a murder conviction. The issue before the court was whether Mr. Foster's right to trial before a jury of his peers was defeated through the prosecution’s manipulation of the juror selection process. Mr. Foster, who is African American, argued that the prosecutor impermissibly eliminated black jurors thus creating a biased jury pool. The court, in a seven to one opinion, determined that the prosecution demonstrated racial bias in jury selection and remanded the case to the lower court.
The legal impact of the decision will be limited. Mr. Foster’s lawyers gained access to the thirty-year-old prosecutor’s file which showed, among other discriminatory evidence, a “b” written next to the names of the black prospective jurors. Such blatant evidence is rarely available. With progressively more focus on criminal justice practices that limit or deny civil rights protection to people of color, it is likely that written documentation of exclusionary jury practices no longer appear in prosecutor’s notes. The case is unlikely to influence future discrimination cases except in one regard: it is possible that some judges will scrutinize more closely the Batson claims of prosecutors that there were “ legitimate reasons” for eliminating black jurors. But under the current status of case law favoring prosecutors even enhanced scrutiny is not likely to change discriminatory practices.
In addition, two justices noted, there may be procedural barriers beyond the bias issue that prevent Mr. Foster from receiving a new trial.
But will the prosecutor in question benefit from the passage of time thereby avoiding disciplinary action?
ABA Model Rule 3.8 emphasizes the special duty of prosecutors to assure justice, in addition to their duties to be competent lawyers on behalf of the state. Under the rule, prosecutors have a duty to seek and preserve justice as well as to prosecute individuals deemed a threat to the public. Commentary to the rule reads in part: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." This includes an obligation to ensure that the defendant receives "procedural justice".
Unlike other model rules, as adopted by the various states, there are relatively few disciplinary decisions sanctioning prosecutors for behavior that frustrates or thwarts justice. The apparent lack of discipline for prosecutors (think of the lack of discipline for the now notorious prosecutor in Making of A Murderer) ignites vigorous law classroom debate. Many disciplinary complaints allege conduct as concerning as that found in the documentary. But even when the facts of the complaint are acknowledged, often no or mild discipline follows.
The ethics discussion typically progresses from one concerning individual cases to the larger problem of whether or not the lack of discipline results from a bias to protect the state. What is the fear behind disciplining wayward prosecutors? Are ethics boards concerned about a flood of complaints that might result in a mirroring of the justice systems overcrowded dockets? If so, that fear must be insufficient to prevent disciplinary boards from applying their independent judgment. Adverse collateral consequences to legal systems must not be a factor in determining whether justice has been manipulated by a key state actor.
My prediction is that among the consequences of holding prosecutors to their dual obligations will be the cheering of those many prosecutors who take their larger responsibilities of ensuring justice to heart.