Eight former state and federal prosecutors have requested that the U.S. Supreme Court overturn the death sentence of Timothy Foster.  The ex-prosecutors stated that Georgia prosecutors use their discretionary strikes during jury selection to “ensure that a black defendant accused of a crime against a white victim [will] face an all-white jury.”   In their friends of the court brief, the former prosecutors go on to say that “race discrimination persists in jury selection” nearly 30 years after the Supreme Court prohibited racially discriminatory usage of strikes (Batson v. Kentucky).

In an op-ed piece in the New York Times, Linda Greenhouse argues that Batson doesn’t work, “[B]lacks are still being excluded from juries at disproportionate rates, especially when the defendant is black and the crime victim is white.  Prosecutors have learned to game the system by providing explanations” for striking black jurors that “judges who appear all too eager to be persuaded” accept as race-neutral.”

Greenhouse goes on to point out that the Foster case is a prime example of prosecutors hiding their true motives for jury selection behind not having to disclose a reason.  The prosecutor’s notes in the Foster case marked a “B” next to each prospective African American juror and their names were highlighted in green ink.    (see those notes here)

Additional notes indicate that the prosecutor ranked the prospective African American jurors, numbering them as “B1”, “B2”, etc. and then ranking them against each other in case “it comes down to having to pick one of the black jurors.”  Prosecutors claim that they did not use the highlighted list in their final decision and that they had race-neutral reasons for striking the jurors.  The Georgia Supreme Court has upheld the decision, so now the U.S. Supreme Court will hear the case after the new term begins this fall.

Greenhouse says that the case should “jump start a public conversation” on reforming the discretionary strike system.

The former prosecutors conclude, “If this Court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless.”



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