Foster v. Chatman: When Prosecutors Strike
May 24, 2016 (Mimesis Law) — As widely predicted, Stephen Bright prevailed at the United States Supreme Court in Foster v. Chatman. In Foster, prosecutors were “downright indignant” about claims of racial bias in jury strikes in a 1986 trial. Unfortunately for them, that indignation was met with evidence that every single black juror was struck, that an affidavit from an investigator showed that they were hoping to strike all black jurors, but would “settle” for one in particular, and that members of black churches would be struck.
As a result, Foster will have his case sent back down to the Supreme Court of Georgia to decide if the entire exercise was irrelevant because his conviction had already been affirmed in 1988, without the benefit of the juror notes (because SCOG ruled they were not discoverable as attorney work product).
All this is the predictable outcome of Batson v. Kentucky, a 1986 opinion that, like many criminal opinions out of the Supreme Court of the United States, said a lot of noble things about justice and prejudice, but provided little guidance to actual practitioners in the trenches. Under Batson, the typical jury challenge goes like this:
Defense Counsel: “Your Honor, the State has used literally all of its strikes on black jurors, and now only white jurors remain on the panel.”
Judge: “Alright, prosecutor, I need to hear your racially neutral reason for using all of your strikes on black jurors.”
Prosecutor: Sure thing, Your Honor. Well, one of the jurors had unkempt hair. Another did not appear to be listening closely. A third had his shoelaces untied. The fourth one gave me a bad feeling. And the rest of them I struck because they raised their hands when I asked if anyone felt that there was still racism in our justice system.
Defense Counsel: Your Honor, that can’t be right. Several whites on the panel also raised their hands to the racism question.
Judge: I hereby find that the prosecutor’s racism is not obvious enough to be noticed by a higher court. We will proceed.
Expect to see of plenty of passionate outlets patting this country on the back in the wake of Foster over the next few days, talking about the Supreme Court’s reaffirmance of Batson as though it would actually work to give prosecutors pause. But it won’t. And even the strongest interpretation of the rights in Foster aren’t worth a sparrow’s fart in a windstorm compared to the power and discretion given to prosecutors even before this nation’s founding.
See, there’s this guy, Sir William Blackstone, who wrote up the definitive treatise on English common-law, which later become American common-law. It was tremendously influential when the nation was founded, and continues to be cited today, even in Batson opinions.
But in criminal cases, or at least in capital ones, there is, in favorem vitae [in deference to life], allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all; which is called a peremptory challenge: a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous.
THIS privilege, of peremptory challenges, though granted to the prisoner, is denied to the king by the statute
At the time, the right extended solely to criminal defendants. It was intended to be a mercy. It was a way to ensure that when a defendant was convicted and possibly sentenced to death, it was at least by a group of people that he could trust to do the right thing. Most modern jurisdiction give ten or fewer strikes, but in Blackstone’s time, a prisoner was allowed anywhere from twenty to thirty-five strikes.
And prisoners weren’t just entitled a number of strikes. There were even some nods towards giving people a representative jury:
For it is here at least as necessary, as there, that the sheriff or returning officer be totally indifferent; that where an alien in indicted, the jury should be de medietate, or half foreigners;
Imagine the uproar if we tried to create a rule that defendants were entitled to a true jury of their peers in civilian courts now. As in, the average young black man is typically entitled to be tried by a jury of retired white citizens.
Of course, this is not some nostalgic ode to the perfect criminal justice systems of our past. In Blackstone’s time, most criminal defendants weren’t entitled to a lawyer even at their own expense unless there was some tricky legal issue to argue. But the whole point of the revolution was that we would be more free than we were under the British—not that we would be judged just as harshly by men with different accents.
And now, we act as though justice was served because prosecutors, trying as hard as they possibly could to leave a paper trail for their racism in the earliest days of Batson, didn’t happen to get away with it.
The history of criminal justice in this country has been a gentle slide away from guaranteed rights, and towards “fairness” for the State. This “fairness” means that the State now has the right to strike, with all the pernicious incentives that that may produce. It means that the State may complain when too many whites are struck, and, in fact, that they are more successful in such claims on average than criminal defendants.
It’s time to stop patting ourselves on the back for our “freedom.” For the occasional crumb of liberty that drops from eight unelected lawyers. We’ve replaced constitutional guarantees with an unwieldy pile of balancing tests. Foster may be a good result, but the government’s thumb remains heavy on the scale.