Mimesis Law
19 April 2019

Timothy Tyrone Foster & The Evolution of Batson

Nov. 3, 2015 (Mimesis Law) — Back in January of 2008, I was a prosecutor in Harris County, Texas who had just started blogging. I was writing anonymously back then, because I didn’t want to be viewed as writing on behalf of the D.A.’s Office.  I was writing in the hopes of explaining why prosecutors made the decisions that we did and provide a rebuttal to the large amount of negative press the Office was receiving at the time.

Although most of my articles at the time were about local courthouse antics and politics, I ultimately got ambitious and decided to write an article on Batson and why prosecutors might be reluctant to have African-American people on juries.

Shortly thereafter, New York criminal blogger, Scott Greenfield, responded in a less-than-embracing blog post that took issue with my post.  I nearly quit blogging on the spot.  Much has changed in my life over the past seven and a half years – I’m no longer anonymous, nor a prosecutor.  Unfortunately, not all that much has changed in the world of Batson.

Prosecutors who feel tepid on the idea of having African-American jurors on their juries feel that way because they recognize that the criminal justice system has historically treated them so very poorly. As I wrote back then:

A potential juror who is going to let their bad experience with law enforcement shape their verdict shouldn’t be on a jury, regardless of their race. I think prosecutors are very aware of the fact that in dealing with an African –American potential juror.  It isn’t a concern over whether or not that juror is “incapable” of serving . . . It’s more a matter of whether or not the law enforcement through its own bad actions, has ruined this juror’s perception of the System as a whole.

The concern being that this “ruined perception” could result in a juror who is more skeptical of the police, the prosecution, and the idea of harsh sentencing — you know, the things that might constitute a fair juror – albeit one that isn’t going to be considered good for the State.

Batson v. Kentucky prohibits jurors from being struck based on their race, but it has always been an easy hurdle for prosecutors to overcome.  If a defense attorney believes that a prosecutor used a peremptory challenge on a person based on their race and makes a Batson challenge, a prosecutor merely has to assert a “race neutral” reason to survive the challenge.  Theoretically, a prosecutor could respond that they exercised a strike because he didn’t like the prospective juror’s shoes, and that would suffice.

That hurdle became a little more onerous with 2008’s Snyder v. Louisiana, which held that the mere assertion of a “race neutral” response was no longer adequate, if the defendant could show that the strike was largely based on a “discriminatory intent.”  Unlike Batson, the Snyder decision gave Courts the ability to call “bullshit” on a prosecutor’s “race neutral” rationale for striking a juror if it didn’t pass the smell test.

On Monday, the United States Supreme Court heard the case of Foster v. Chatman, which put racially motivated peremptory strikes in the spotlight.   In Foster, the Petitioner is arguing that the prosecutors violated both Batson and Snyder rulings by striking potential jurors because of their race.  What makes the case notable is that the key piece of supporting evidence is the prosecutor’s notes:

One set of documents from the prosecution files shows that potential jurors who were black had a “B” written by their name and their names highlighted with a green pen. On some juror questionnaire sheets, the juror’s race “black,” “color” or “negro circled.  One juror, Eddie Hood, was labeled “B#1.”  Others were labeled B#2, B#3.

Another set of the prosecution notes contained a coded key to identify race. There is a list of six “definite no’s” – the top five are black.

As Scott Greenfield wrote, the Foster case is indisputably egregious, but what is the over-arching rule that can come from a Supreme Court decision on the case?

While reversing Timothy Foster’s conviction is itself a worthwhile result, the Supremes don’t see their job as doing the right thing, but announcing rules to be applied going forward. What rule?

A preliminary view of the questions and comments from the justices in Monday’s hearings seem to illustrate exactly what Greenfield was concerned about. CNN noted that Justice Ginsburg wanted to know who wrote the “definite no list” while Justice Sotomayor wanted to know if only black jurors had been researched.  Justice Alito singled in on a black female who was struck after prosecutors incorrectly stated her age was similar to that of Foster’s.  These case-specific questions indicate that Foster’s case may very well be reversed, but they give little indication of what impact that ruling will have beyond that.

Greenfield is pessimistic about there being anything that the Court possibly could do that would effectuate a meaningful change.  He notes that the only way to truly eradicate a racially motivated peremptory strike is to get rid of peremptory strikes, altogether – a proposition that no defense attorney in his right mind would support.  Peremptory strikes are the bedrock for effective jury selection for the defense.

The only other option, which would cause a chorus of thousands of prosecutors across the country screaming in unison, would be to remove peremptory strikes from the prosecution, but not the defense. The Court could adopt the idea that the State was entitled to a qualified jury and nothing more, yet still leave peremptory strikes for the defense.  Calm down, prosecutors.  That will never happen.

While Greenfield mocks the idea of judges being “particularly vigilant” in making these decisions – “will they then possess the magic power to distinguish between legitimate explanations and bullshit excuses?” – there is actually some merit in the ambiguity.  Prosecutors live in fear of a successful Batson challenge and view it as the equivalent of being declared a documented member of the Ku Klux Klan.

If a judge’s standard for defining racial discrimination in peremptory strikes is simply going to be “I know it when I see it,” prosecutors would be well advised to avoid anything remotely resembling a Batson violation.

4 Comments on this post.

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  • Ken Womble
    3 November 2015 at 10:27 am - Reply

    But I was twitter promised that the Supremes were going to shake up Batson! I want a refund.

  • Jeff Gamso
    3 November 2015 at 12:26 pm - Reply

    It’s not a question of the judge’s personal recognition of a bullshit excuse. It’s a question of the judge’s cojones.

    Do you really imagine that all the judges who looked at what happened in Foster before now honestly thought that the prosecutor’s continually evolving explanations were anything but improper pretext. Maybe a few believed the BS, but all of them? The judges let them do it the way they let prosecutors get away with all sorts of misconduct. And the way they don’t find ineffective assistance of counsel as long as a mirror held to counsel’s nose gets fogged up.

    Where it’s not judicial cowardice, it’s judicial self-deception. And where it’s not that, it’s that the defendant was pond scum.

    Telling judges to be really really serious about Batson violations may make a change around the margins. It won’t do a thing to resolve the problem. There are only two ways to do that, neither one palatable: (1) do away with peremptories; (2) do away with Batson.

    (And, by the way, although nobody much mentions it, prosecutors get to use Batson against defense counsel, too – with rather more success, I fear.)

  • Jason Truitt
    3 November 2015 at 4:14 pm - Reply

    I don’t even see it as an issue of cojones. The fact is that many judges will allow the strikes due to bias–not because they may lack the courage to make the right call, but they know the law, see that it’s being violated, and don’t care.

    Bias is different than balls.

  • For Whom This Post Tolls | Simple Justice
    3 November 2015 at 5:45 pm - Reply

    […] “vibrant,” there was a synergy that developed.  Murray Newman reminded me of this with a post about how, when he first started his blawg, I ripped him a new one and he nearly closed shop there […]