United States Supreme Court to Consider SCHR Death Penalty Case on Race Discrimination in Jury Selection

25th January, 2016
Southern Center for Human Rights

The United States Supreme Court heard arguments on November 2, 2015, on whether prosecutors engaged in race discrimination at Timothy Foster’s 1987 capital trial in Rome, Georgia, when prosecutors used their peremptory strikes to exclude black prospective jurors from jury service and then argued to the all-white jury that Foster should be sentenced to death for the murder of a white victim to “deter other people out there in the projects.”  At the time, ninety percent of the families in the projects were black, including the Fosters.  The jury sentenced Foster to death.



A young Timothy Foster on picture day. 

The case, Foster v. Chatman, No. 14-8349, presents the question of whether Foster was convicted and sentenced to death in violation of the United States Constitution’s guarantee of equal protection of the laws.  It also presents an important issue regarding the participation of people of color as jurors.  In the final stages of selecting a jury for a case, each side is allowed to remove a certain number of prospective jurors by exercising “peremptory strikes.”   A potential juror may be struck for any reason except race and gender, but it is often difficult, if not impossible, to determine the reason for a strike.  As a result, peremptory strikes are subject to abuse by being used to strike people on the basis of their race or gender.  (The number of peremptory strikes varies from one state to another.  Georgia law allowed the prosecution ten strikes at the time of Foster’s trial, as it still does today.)

Foster, represented by attorneys from the Southern Center for Human Rights, argues that the evidence of purposeful discrimination by the prosecution in securing an all-white jury in his case is extensive and undeniable.  The prosecutor struck all four black citizens who were in the group of potential jurors from which the jury was selected.  The attorneys presented detailed evidence to prove that this exclusion was the result of the prosecution’s identification of them as black and its determination to keep them off the jury.  

  • Notes from the prosecution files show that the prosecution marked the names of the black prospective jurors with a “B” and highlighted each black juror’s name in green on four different copies of the list of all of the people summoned for jury duty in the case. Each of the four lists had a key that said green highlighting “Represents Blacks.”  
  • The race-coded lists were circulated throughout the district attorney's office, showing a culture and comfort level with making blatant race-based distinctions. 
  • The prosecution circled the word “black” next to the “race” question on the juror questionnaires of five black prospective jurors. In addition, the prosecution identified three black prospective jurors as B#1, B#2, and B#3 in their notes.
  • The black prospective jurors were ranked against each other in case the prosecution was forced to accept a black juror.  One was identified as “might be the best one to put on the jury,” and it was said with regard to another, “if it comes down to having to pick one of the black jurors,” she “might be okay.”
  • The prosecutor stated that he considered one African American to have “the most potential to choose from out of the four remaining blacks.”
  • The prosecution also created strike lists that prioritized striking the black prospective jurors over any white prospective jurors.  Black citizens were the first five of six prospective jurors the prosecution’s list of “Definite NOs,” meaning they were slated for definite strikes.

The prosecutor’s race-coded venire lists and notes were not available to the trial judge who rejected the claim of discrimination at Foster’s trial and the Georgia Supreme Court, which upheld the conviction and death sentence on appeal.  The Southern Center lawyers obtained the prosecution’s lists and notes almost 20 years after trial through Georgia’s Open Records Act.

The prosecutors claimed that the black citizens were not struck because of their race, but for other reasons.  The prosecutors gave eight to twelve reasons for the strike of each black person and added even more reasons after trial, undermining their credibility in the process.  The sheer quantity of the reasons casts suspicion on the validity of each individual reason. 

Moreover, some of the reasons were untrue, some were contradicted by the prosecutors’ notes or the record, and others applied to white prospective jurors who were accepted by the prosecution.  

  • The prosecution asserted that it struck one African American because she was a social worker.  But she was not a social worker.
  • The prosecution gave as one reason for striking a 34-year-old black woman that she was near the age of Foster, who was 19. The prosecution accepted eight white prospective jurors who were 35 or under, including a white man who was just two years older than Foster and who served on the jury.
  • The prosecutors said they struck a black member of the Church of Christ because the church opposed the death penalty.  However, the prosecution’s notes showed that the church did not oppose the death penalty and left the issue to each member.  The black man who was struck had repeatedly stated when answering questions during the jury selection process that he was not opposed to the death penalty and could impose it. 
  • The prosecutors said that they struck a prospective black juror because Foster's attorneys did not ask him about social and fraternal organizations. However, the juror had answered on a questionnaire completed by all potential jurors that he did not belong to any such organizations. Moreover, the defense lawyers did not ask any jurors about their memberships in social or fraternal organizations. 

After using its preemptory strikes to obtain an all-white jury, the prosecution stated in closing argument at the penalty phase: “We have got to believe that … if you send somebody to death, that you deter other people out there in the projects from doing the same again.”

The Southern Center’s brief argues that Foster was convicted and sentenced to death in violation of the Supreme Court’s decisions in Batson v. Kentucky, 476 U.S. 79 (1986), and subsequent cases, which prohibit discrimination in the exercise of peremptory strikes and allow strikes only for “race neutral” reasons.  

The Southern Center also argued that the discrimination against the black citizens called for jury service offended their dignity and the integrity of the courts, and that “[i]t is both unconstitutional and unseemly to call black citizens to do their civic duty, then have prosecutors disrespect them by reducing them to ‘B’s’ and ‘Definite “NOs.’”

Judges usually conduct hearings on challenges to discrimination in jury selection and make their rulings out of the presence of the media and the public.  So members of the public are usually unaware of the reasons prosecutors give for their strikes and the rulings of judges regarding those reasons.  

Prosecutors distribute lists of “race neutral” reasons to use in justifying their strikes, even before they have seen a juror.  For example, the North Carolina Conference of District Attorneys distributed a one-page “cheat sheet” of race-neutral reasons titled “Batson Justifications: Articulating Juror Negatives” at a state-wide trial advocacy course called “Top Gun II.”  The Texas District and County Attorney Association distributed such a list, called “Batson Basics,” at a Prosecutor Trial Skills Course.

Two of the reasons asserted by the prosecutors in Foster’s case were lifted verbatim from another case upholding the reasons given by a prosecutor.  

Prosecutors often give reasons based on demeanor – like “inattentive,” “bored,” “distracted,” “failed to maintain eye contact,” “appeared hostile” – that could apply to anyone, but are used to remove people of color from jury service.  It is impossible for the courts to determine if the reasons are true.  

There is no protection from discrimination if a prosecutor can strike a person of color or a woman and then just read a “race neutral” reason off a list and have it approved by the trial judge.  

To read the transcript from the oral argument, click here. The audio of the Foster oral argument is available online. The Court will issue a decision in 2016.



SCHR President and Senior Counsel Stephen Bright answers press questions after Foster's oral agrument. 

Brief of Petitioner Timothy Foster  

Amicus brief filed by eight former prosecutors in support of Foster

Brief for State of Georgia for Warden Chatman

Reply Brief of Petitioner Timothy Foster

Joint Appendix Volume I

Joint Appendix Volume II

Foster’s Petition for a Writ of Certiorari

Appendix to Petition for a Writ of Certiorari

SCOTUSBlog Summary



Equal Justice Initiative: Illegal Discrimination in Jury Selection: A Continuing Legacy


Media Coverage of Oral Argument

New York Times: Supreme Court to Decide if Georgia Went Too Far in Excluding Black Jurors

New York Times: How America Tolerates Racism In Jury Selection 

Atlanta Journal Constitution: A Truly timeless moment in the US Supreme Court

Atlanta Journal Constitution: US Supreme Court: Race not a factor in GA death case? Really?

Mother Jones: Black Juror: Prosecutors Treated Me "Like I Was A Criminal" 

Mother Jones: This Is How Prosecutors (Still) Keep Black People Off Juries

PBS Newshour: Death Penalty and All-White Juries

National Law Journal:  Supreme Court Gets Chance to Ban Racism in Jury Selection

National Public Radio: Supreme Court Takes On Racial Discrimination In Jury Selection

Slate: Racism Highlighted in a Green Marker

Huffington Post: Sonia Sotomayor Gets Unexpectedly Personal Inside The Courtroom

CBS News: Black death row inmate sentenced by white jury before Supreme Court

Huffington Post: Supreme Court Faces 'Arsenal Of Smoking Guns' In Case Of Racism In Jury Selection

American Constitution Society: Foster v. Chatman: The Insidious Problem of African-American Juror Exclusion

Al Jazeera America: Supreme Court shows concern over alleged race bias in jury selection case

Buzzfeed: Supreme Court Questions How To Handle Jury Selection Discrimination Case

The Economist: An old court case exposes the racist tricks used to ensure all-white juries

Wall Street Journal: Supreme Court Justices Fault Rejection of Blacks in Jury-Selection Case


Media Coverage of Foster v Chatman 

Slate: Amicus: Strike Zone

CNN: Jury and racial bias debate comes to the Supreme Court

Atlanta Journal-Constitution: High court considers race discrimination in Georgia death case

The New Republic: The Supreme Court Takes On the All-White Jury

The Atlantic: When Is It Constitutional to Purge Black Jurors?

Daily Report: Atlanta Lawyers to Face Off Before U.S. Supreme Court

ABA Journal: Is Batson workable? Studies show association between race and peremptories

Atlanta Black Star: Supreme Court Tackles Case Involving Ongoing Discrimination Against Black Jurors

Washington Post: Supreme Court to examine racial divide in jury selection

The Atlantic: The Death-Penalty Feud at the Supreme Court

National Law Journal: Supreme Court Gets Back to Business

New York Times: The Biggest Questions Awaiting the Supreme Court

Los Angeles Times: Five Supreme Court cases to watch that could make history

New York Times: Supreme Court Prepares to Take On Politically Charged Cases

MSNBC: Five big questions facing the Supreme Court

The New Republic: Will the Supreme Court's New Term Deliver the Next Great Dissent? 

Daily Beast: How Prosecutors Get Away With Cutting Black Juror

Reuters: In states with elected high court judges, a harder line on capital punishment

New York Times: The Supreme Court's Gap on Race and Juries 

Daily Report: Thompson Is Among Ex-Prosecutors Who Back Georgia Death Row Inmate

Slate: Georgia Justice: The Supreme Court will review a case of blatant racism by prosecutors. For once, there’s a paper trail

WABE: Georgia Death Penalty Case Could Set National Precedent (former Georgia Chief Justice Leah Ward Sears discusses the case) 

Daily Report: US Supreme Court Agrees to Take Up Ga. Death Penalty Case

Associated Press: High court to consider appeal over exclusion of black jurors

The Guardian: US Supreme Court to review murder case that excluded all potential black jurors

Think Progress: The Supreme Court Will Hear An Almost Comically Egregious Case Of Race Discrimination

WABE: US Supreme Court To Hear Georgia Death Row Inmate's Case