You see a lot of the same things, doing trials over and over again: the same jury instructions; the same oath; the same admonitions. Sitting in jury selection, the defense attorney will invariably explain the burden of proof and point at me. She’ll say, “the government, the accuser, they have to prove my client is guilty.” This is literally, true, I have accused her client of something. But this little skit bothers me every time. Partially because another lawyer should know that prosecutors don’t actually represent the government. But mostly it’s the second part. In ancient Hebrew (not that I’m familiar with it) the word for accuser is “satan.” In the Hebrew bible, the word is used repeatedly to describe angels that get in the way of humans, for example, angels discussing Job and his trials. But it is also used to refer to David and Rezon of Damascus. The word satan as accuser is mentioned 18 times in the Old Testament, including 14 in the Book of Job. In most of these references, the definite article precedes the noun: the satan. It was a title: it didn’t refer to a red horned devil, it just described a role that anyone could play.
Later books in the New Testament, although written in Greek, follow this convention. Strong’s Concordance gives only two words to define the original Greek word: prosecutor and accuser. In Revelation 12:10, a voice from heaven says,
“Now have come the salvation and the power and the kingdom of our God, and the authority of his Messiah. For the accuser of our brothers and sisters, who accuses them before our God day and night, has been hurled down.”
The public defender doesn’t know any of this stuff when she does her bit; nobody does. And I’ve been called lots of names. But at least now I know why I don’t like this one.
On the morning of August 28, 1986, police found Queen Madge White dead on the floor of her home in Rome, Georgia. White, a 79-year-old widow, had been beaten, sexually assaulted, and strangled to death. Her home had been burglarized. Timothy Foster subsequently confessed to killing White, and White’s possessions were recovered from Foster’s home and from Foster’s two sisters.
(Foster v. Chatman (2016) 578 U.S. ___.) These are the opening lines of Justice Roberts’ majority opinion in the Supreme Court’s latest jury selection case. Foster v. Chatman is a well-meaning decision aiming to strike a blow at racism. Instead, it makes peremptory challenges against African-Americans extremely dangerous to prosecutors.
White lived by herself in Rome Georgia. Early in the evening of August 27, 1986, a friend took White to choir practice. When White’s sister stopped by early the next morning, she discovered that White’s house had been broken into and ransacked.
[The police] found White’s body lying on the floor in her bedroom covered to her chin by a blanket. Her face was coated with talcum powder. Her jaw was broken. She had a severe gash on the top of her head. She had been sexually molested with a salad-dressing bottle, and strangled to death. A number of her possessions were missing from her home.
(Foster v. The State (1988) 258 Ga. 736.)
Timothy Tyrone Foster was arrested for White’s murder a month later when he threatened another person and she turned him in. The police recovered White’s possessions from Foster’s home and the homes of his two sisters.
Foster confessed. He said that White got up to use the bathroom in the middle of the night. She returned to her bedroom and turned on the lamp. Then she noticed Foster in her living room. White got out a knife and chased Foster, but he picked up a fireplace log and hit White hard enough to break her jaw. He then admitted the sexual molestation and strangling.
The Procedural Posture
By the time the parties completed for cause challenges in the trial court, four black jurors were left out of 42 total jurors. The prosecution exercised nine of its ten peremptory challenges, removing all four of the remaining black prospective jurors. Foster was convicted. During the sentencing phase, the prosecutor urged jurors to sentence Foster to death to deter people “out there in the projects.”
After the trial was over, Foster filed a series of Open Records Act requests. He obtained documents related to jury selection at trial. On the jury venire list, the name of each black juror was highlighted in green. On these jurors’ jury questionnaires, their race had been circled. On a list of jurors remaining after for cause challenges, there were ten “N”s next to jurors the prosecution intended to remove, including next to the names of all the black jurors. The five black jurors were included in the prosecution’s list of six “definite NO’s” [sic]. There were three handwritten notes on black prospective jurors in which they were labeled “B#1”, “B#2”, etc. There was a handwritten document titled “Church of Christ”. A notation on that document read: “NO. No Black Church.”
The prosecution employed an investigator who was black himself. The investigator wrote a draft document with his views of the jurors. In it, he wrote: “If it comes down to having to pick one of the black jurors, [this one] might be okay. This is solely my opinion.” This language was removed from the final document by the prosecutor.
Many Courts Reviewed These Facts And Only The Supreme Court Found Racism.
The defense challenged the prosecution under Batson v. Kentucky (1986) 476 U.S. 79, claiming that the prosecution’s challenges were racially motivated. The trial court denied this claim. Following sentencing, Foster renewed his Batson claim in a motion for a new trial. After an evidentiary hearing, the trial court again denied his motion. Foster sought a writ of habeas corpus on the Batson issue. He discovered and admitted the evidence from the prosecution file, described above. The state habeas court considered this evidence and denied relief. They held that Foster “fail[ed] to demonstrate purposeful discrimination.” The Georgia Supreme Court then reviewed the case. They denied Foster his ability to appeal the case further, holding that his claim had no “arguable merit.”
Despite the fact that the trial court had denied Foster’s Batson claim twice, the habeas court denied his claim, and the Georgia Supreme Court held the claim had no merit, the United States Supreme Court granted certiorari and reversed all of these courts in holding that the prosecution was motivated by race.
During oral argument, Justice Kagan said, “Isn’t this as clear a Batson violation as a court is ever going to see?” Justice, Roberts, writing for the 7-1 majority, gave what has been described as “a devastating indictment of the prosecutors.” Ironically, the only justice in dissent was Justice Thomas.
The Court reversed Foster’s conviction, meaning he can go back to the Georgia Supreme Court and will probably get a new trial.
Prosecutors Are In A No-Win Situation When Deciding Whether To Document Race.
Justice Roberts was particularly troubled by the “arresting” number of references to race in the prosecution file. He criticized prosecutors for “the persistent focus on race in [their] file.” The clear implication is that prosecutors who make notes about the race of the prospective jurors might be keeping track in order to discriminate. Indeed, Roberts and the other justices considered these notes as evidence of racism. A conscientious prosecutor, who is actually not violating Batson, would not want to make such notes. Such a prosecutor might reasonably believe that such notes may be used against him by a zealous defense attorney and a hostile appellate court.
On the other hand, prudent prosecutors need to keep track of the race of all the prospective jurors to protect themselves from Batson challenges at the trial court level. For example, a prosecutor defending against a Batson challenge might need to point out that she has challenged jurors of all ethnic and racial backgrounds. She might need to rely on more than her memory, especially in a high-pressure trial. She might need notes. Moreover, courts don’t review cases for many years. Memories fade. Prosecutors therefore need to document the grounds for their peremptory challenges, in order to explain them many years later.
At The End Of The Day, We Should Not Forget That There Is No Real Doubt As To Foster’s Guilt.
Foster confessed. The confession was voluntary: there isn’t even an allegation (much less evidence) that this confession was coerced. The confession was corroborated by the recovery of the victim’s property in Foster’s home.
This is not a case in which an innocent person of color ended up in jail due to racial prejudice, as some commentators have suggested. This is a case in which a murderer had his conviction reversed on a flimsy technicality by well-intentioned justices. As a result, prosecutors are facing an even more difficult situation during peremptory challenges. Maybe we should just get rid of them altogether.
The Washington Post’s coverage of Foster v. Chatman and racial bias in jury selection brings up two issues that are not often discussed.
First, most of the coverage of peremptory challenges in general, and Foster in particular, have focused on alleged prosecutorial misconduct. Specifically, commentators allege that prosecutors use peremptory challenges in a racially biased way. I have read several articles who cite to a 2012 study of racial bias in jury selection in North Carolina. In that study, prosecutors used 60% of their peremptory challenges to strike black jurors, even though they made up only 32% of the jury pool. The implication, made explicit by many, is that prosecutors in North Carolina are racially biased against black jurors. The Post article, crucially, points out the flip side of the coin. “Defense attorneys used 87% of their strikes against white jurors, who made up 68% of the jury pool.” Each side of a criminal prosecution, then, uses peremptory challenges in a way that may show racial bias*. Could this be because there are differences between the races when it comes to their attitudes towards the criminal justice system, as the Post polling shows? Could it be because recent shootings “have widened the gulf between how whites and blacks view law enforcement” as the Post asks?
The Post’s coverage of a second issue is also thoughtful and encouraging. That issue is the way that Batson challenges (accusations that one side is using peremptory challenges in a racist way) actually occur in court. The Foster case is not only the subject of the article but a great example. Foster murdered Queen Madge White, a 79-year-old widow and former elementary school teacher. He broke into her home, broke her jaw, sexually molested her with a bottle, and strangled her to death. Foster confessed to the crime. The case went to trial anyway, and the defense attorney announced that they would make a Batson challenge if any of the black jurors in the pool were stricken. The prosecutor took notes of the characteristics of each juror, including their race. He then used four peremptory challenges on the black jurors in the pool. The Defense made a Batson challenge, which was heard by the judge, and rejected, because the prosecution provided valid, non-racial reasons for striking the jurors.
Racism is wrong, of course. Striking black jurors to disenfranchise them is wrong. Striking black jurors because of racial animus is wrong and stupid. Prosecutors should be allowed to account for the different attitudes of blacks and whites without being accused of racism. The lesson that I’ve learned from Chatman is that you can never strike a black juror (or even take a note indicating that someone is black) without someone making that accusation. I don’t want to have to defend myself in that way.
That’s why my preference, along with Thurgood Marshal and Stephen Breyer, is to eliminate peremptory challenges entirely. The burden of this change would fall most heavily on the community, rather the defendant, since prosecutors need everyone to agree, and biased juror can cost the community a conviction. Defendants, by contrast, can afford a jury of 11 jurors with pro-prosecution biases, as long as they have one that is defense biased, or even neutral. Eliminating peremptory challenges would remove the a the risk of professional sanctions on prosecutors who are constantly at risk of being misunderstood by an appellate court 20 years after jury selection. Exposing the reputation and livelyhood of prosecutors to such capricious and inconsistent risk is not just. A false accusation of racism, when made by the California Supreme Court, can end a career. Therefore, we should end peremptory challenges altogether.
*It might not be racial bias. Race correlates heavily with poverty, for example, and it could be that prosecutors prefer rich jurors to poor ones and defense attorneys vice-versa. I have heard anecdotal evidence to this effect. One part of the discussion of these statistics that needs to be highlighted is that jury selection is extremely complicated, just like race relations, and reducing our analysis of the North Carolina study to the naked numbers of blacks and whites stricken is massively misleading and unhelpful. In the same way that counting the number of firemen at fires and then accusing them of arson would be misleading and unhelpful. This is not a case in which an innocent man was incarcerated because the prosecution gerrymandered a racist jury. This was a case in which the defense elected to go to trial even though the defendant had confessed, raised allegations of racism at every turn, and each time these allegations were rejected by a judge. Foster’s conviction should not have been overturned merely because the prosecution prepared for the defense’s threatened Batson challenges.
The California Supreme Court, in People v. Gutierrez, et al., handed down a rare reversal on the same grounds. You can read the unanimous decision here. This is the first time since 2001 that the California Supreme Court found that racial bias tainted jury selection.
DA in CA 
