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SCOTUS Saves Black Man Sentenced to Death by All-White Jury

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By Casey C. Sullivan, Esq. on May 23, 2016 2:57 PM

A black death row inmate has been saved from execution this morning, after the Supreme Court ruled that prosecutors violated the Constitution when striking all potential African American jurors from his trial. Timothy Foster had been convicted of capital murder in Georgia in 1987. He later discovered evidence showing that prosecutors exercised their peremptory strikes almost entirely because of race. Under Batson v. Kentucky, that evidence was enough to undo his conviction, the Supreme Court ruled 7-1 today.

But what the case means for Foster, and for others like him, is still unclear.

A Smoking Gun. Actually, Seven of Them.

Peremptory strikes allow attorneys to remove members of a jury pool for virtually any reason. And such strikes can almost never be challenged, unless the peremptory strike has been exercised on the basis of race. Under Batson, excluding jurors based solely on race is a violation of the Equal Protection Clause.

And while Batson challenges are somewhat common, they are not often successful. To counter a Batson challenge, prosecutors need show only some race-neutral reason for striking a juror, and often there are plenty of seemingly neutral proxies for race.

But in Foster's case, there was virtually no ignoring the fact that jurors had been removed from the pool because they were black. After Foster was convicted, he used Georgia's Open Records Act to obtain a copy of the prosecutions files. Those files contained seven damning pieces of evidence, from juror lists highlighted explicitly by race, to notes identifying black potential jurors as B#1 and B#2. There was even a note that members of black churches should be excluded and that "if it comes down to having to pick one of the black jurors, [this one] might be okay."

SCOTUS Finds an Easy Batson Violation

But despite that evidence, the state habeas court and the Supreme Court of Georgia had declined to allow Foster to pursue his appeal. According to the habeas court, Foster's Batson claim was not reviewable because he had raised it once before on direct appeal, making it barred due to res judicata. Nonetheless, that court went on to say that Foster's Batson claim was meritless. The Georgia Supreme Court declined to allow Foster to appeal, saying that his case had no "arguable merit."

The Supreme Court, however, accepted Foster's petition for cert. The George Supreme Court's "unelaborated order on review provides no reasoning for its decision," the Court explained in an opinion authored by Chief Justice Roberts. Since that decision does not rest on "adequate and independent" state law grounds, the Supreme Court is not precluded to review it.

And evidence of race-based juror strikes was more than sufficient to find a Batson violation, the Court ruled, even noting that prosecutors had gone out of their way to misrepresent the nature of their strikes. Only Justice Thomas believed that Foster had not shown a clear Batson violation.

"The contents of the prosecution's file ... plainly belie the State's claim that it exercised its strikes in a 'color-blind' manner," Chief Justice Roberts wrote. Even if not every strike was racially-based, at least two were, and "Two peremptory strikes on the basis of race are two more than the Constitution allows."

No Clear Path Ahead

It's unclear what today's decision will mean for future Batson challenges, or even for Timothy Foster. The Court's decision was incredibly focused on the specific facts of Foster's case, dealing in detail with the prosecutors' files. Such an opinion may not have much of an impact on other challenges where the evidence of racial bias is less obvious.

Secondly, it's unclear if Foster's conviction will be nullified as a result of today's ruling. As Justice Thomas noted in his dissent and Justice Alito in a concurrence, the Georgia courts could attempt to deny Foster relief on state res judicata grounds, despite today's ruling.

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