Prosecutors are entrusted with truly awesome power. They can have citizens investigated, arrested, indicted and put on trial for their very lives. Prosecutors are also agents of the people—they are, as Supreme Court Justice George Sutherland once put it, “representative[s] not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.” Accordingly, prosecutors are bound by ethical rules to act with candor towards judicial tribunals and constitutionally prohibited from acting in ways that undermine the impartiality of judicial proceedings.
Shamefully, prosecutors do not always fulfill their duty, and judges must be on their guard to ensure that our ministers of justice seek justice rather than merely convictions. On Monday, the Supreme Court fulfilled its own duty by clarifying that judges are not to rubber-stamp “race-neutral” reasons that prosecutors offer for removing potential jurors during jury selection. Chief Justice John Roberts, writing for a 7-1 majority of the Court in Foster v. Chatman, meticulously parsed a record that contained overwhelming evidence of intentional, unconstitutional racial discrimination, made plain that prosecutors had misrepresented the reasons governing their actions and forcefully affirmed that “[t]wo peremptory strikes on the basis of race are two more than the Constitution allows.”
Foster involved a criminal trial in Georgia that led to a death sentence for Timothy Foster, an 18-year-old African-American who was accused of robbing, sexually assaulting and brutally killing an elderly white woman. The prosecution used peremptory challenges, which permit parties in criminal or civil trials to remove potential jurors during jury selection, to eliminate every black prospective juror from Foster’s trial. Foster was convicted and sentenced to death.
Foster subsequently sought a writ of habeas corpus, claiming that the prosecution had violated the rule set forth by the Supreme Court in Batson v. Kentucky. In Batson, the Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from removing potential jurors during jury selection because of their race. Foster filed a series of requests under the Georgia Open Records Act, seeking access to the prosecution’s file from his trial. The prosecution disclosed documents related to jury selection and the state habeas court admitted them into evidence. Among them: four different copies of the jury list in which black jurors names’ were highlighted in green and marked with a “B”; six prospective jurors’ questionnaires in which the word “BLACK” was circled; notes in which three prospective jurors were referred to as “B #1,” “B #2,” and B #3”; and a handwritten document titled “definite NO’s,” which listed six names, the first five of which were those of the qualified black prospective jurors.
The evidence of intentional racial discrimination was compelling. But trial courts have long blindly deferred to prosecutors’ proffered race-neutral reasons for a strike or series of peremptory strikes. It is thus not altogether surprising that the state habeas court in Foster accepted the prosecution’s race-neutral reasons for striking black jurors, or that the Georgia Supreme Court affirmed the decision. The Supreme Court granted review. At stake was nothing less than Batson’s vitality—and Foster’s life.
In a thorough, fact-sensitive and persuasive opinion for the Court, Chief Justice Roberts served notice to prosecutors that the Court will not uncritically accept their race-neutral reasons for striking jurors. Foster’s Batson claims centered upon the exclusion of two jurors: Marilyn Garrett and Eddie Hood. Roberts considered the proffered reasons for the exclusion of each juror in turn.
The district attorney, Stephen Lanier, put forth a number of reasons for striking Garrett, all of which (as Roberts put it) “seem[ed] reasonable enough.” But close attention to the record revealed that many of those reasons were predicated upon falsehood after falsehood. Lanier represented to the trial court that Garrett was considered “questionable” and that the decision to strike her was made at the last minute—but Garrett’s name appeared on the “definite NO’s” list with the other black jurors. Lanier told the court that he struck Garrett because “the defense did not ask her questions about” pertinent trial issues, including “insanity,” “alcohol,” and “publicity”— but trial transcripts revealed that Garrett had been asked about all three topics. Other justifications were simply implausible. Lanier claimed that he struck Garrett because she was too young, even though she was older than eight white prospective jurors whom the prosecution did not strike (two of whom served on the jury). Lanier claimed that Garrett was “less than truthful” because she said that she was not familiar with the neighborhood in which the crime had been committed even though Garrett in fact lived in that neighborhood. But the prosecution accepted a white juror who gave a virtually identical answer to the same question, despite living half a mile from the murder scene. Roberts concluded his assessment of the strike of Garrett with a dramatic understatement: “[W]e are not faced with a single isolated misrepresentation.”
The prosecution’s stated reasons for the decision to strike Hood were even less convincing. Roberts noted that the prosecution’s “principal reasons for the strike shifted over time.” Initially, Lanier stated that the “only thing” he was concerned about was the fact that Hood had “an eighteen year old son which is about the same age as the defendant” and who had been convicted of “basically the same thing that [Foster] is charged with.” But Lanier later said that “the bottom line” on Hood was that Hood was a member of the Church of Christ and “[t]he Church of Christ people . . . are very, very reluctant to vote for the death penalty.” The shifting reasons suggested pretext—the nature of those reasons confirmed it. As Roberts wrote, Lanier’s claim that Hood’s son had been convicted for “basically the same thing” as Foster was “nonsense”: “Hood’s son had received a 12-month suspended sentence for stealing hubcaps . . . Foster was charged with capital murder of a 79 year-old widow after a brutal sexual assault.” Further, Hood “asserted no fewer than four times during voir dire that he could impose the death penalty” and the prosecution’s file contained a document noting that the Church of Christ “doesn’t take a stand on [the] Death Penalty.” That same document then stated: “NO. NO Black Church.” The “shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file” made the prosecution’s account of the strike so implausible as to leave the Court with the “firm conviction” that the strikes of both Garrett and Hood were “motivated in substantial part by discriminatory intent.”
Determining whether the people’s agents in government have betrayed the people’s trust is never an easy thing to do. Judges are not mind-readers, and government officials are rarely candid about having acted on the basis of constitutionally impermissible reasons. But the Court’s opinion in Foster demonstrates that judges can smoke out pretext and the facts of Foster highlight the importance of doing so. The judges who evaluated Foster’s case below abdicated their duty to perform fact-sensitive, impartial judicial engagement—to pursue the government’s true reasons for its actions and evaluate their constitutionality without unwarranted deference to the government. A majority of the Supreme Court engaged—and that made all the difference. Owing to the immense power wielded by prosecutors and the grim reality that prosecutors do not always wield that power responsibly, judicial engagement may well be life-saving. In Foster, the Court not only breathed life into Batson—it modelled the kind of adjudication that is necessary to ensure that those whose lives hang in the balance are not deprived of what is rightfully theirs.