SCOTUS Takes on Jury Race Bias—Maybe

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By Nicholas Datlowe

Nov. 2 — Nearly 30 years after the U.S. Supreme Court held it unconstitutional to strike potential jurors based on race in Batson v. Kentucky, the justices today dealt with what Justice Elena Kagan seemed to think was one of the most obvious examples of it the court was ever likely to see.

But even though several justices seemed inclined to believe that prosecutors were motivated by race, it was unclear what the court would do about it.

The court sent a letter to counsel Oct. 30 indicating they should expect questions on whether certiorari in this case should be directed to the Supreme Court of Georgia or the habeas trial court. The court spent considerable time on this issue, questioning attorneys for both sides.

Suspicious Strikes

Less than a year after Batson, 476 U.S. 79 (1986), was decided, Timothy Foster was convicted in Georgia of murder and sentenced to death by a jury from which all black potential jurors had been struck.

At trial and in subsequent proceedings, the prosecutors gave a variety of reasons why—as many as 12 reasons for one juror.

One was struck because, at 34, prosecutors said she was too close in age to Foster—who was then 19—but a white woman in her 20s was empaneled.

Another potential black juror was struck, prosecutors said, because her cousin had been arrested—but according to Foster, the prosecution didn't learn of the arrest until after Foster was sentenced.

Prosecutors also compiled a list of “Definite Nos”—potential jurors whom they didn't want on the jury. The top five names—of six—were the five black jurors in the jury pool. The sixth, ranked as the least undesirable, was a white woman who objected to the death penalty.

They had also decided which of the black jury pool members “might be okay” on the jury, if they were forced to choose one.

Much of the information supporting Foster's challenge to his sentence came from prosecutors' notes, which he acquired through Georgia's Open Records Act in 2006, after his direct appeals had been denied.

The habeas trial court nevertheless found no Batson violation, based in part on the original trial court's determination that the prosecutions' proffered race-neutral reasons for striking the black jurors were reasonable.

A Clear Violation?

Georgia Deputy Attorney General Beth Burton, arguing for the state, started her merits argument on the back foot, and never seemed to recover.

“You have a lot of new information here from” the prosecution files “that suggests that what the prosecutors were doing was looking at the African-American prospective jurors as a group; that they had basically said, we don't want any of these people,” Kagan said. She called this “the very antithesis of the Batson rule.”

“I'm just going to ask you: Isn't this as clear a Batson violation as a court is ever going to see?” she asked.

Burton argued that despite the evidence in the notes, we don't know the reasons that the prosecutors actually struck the black jurors.

She also said that prosecutors had good reason to track the black jurors—Foster had moved for a Batson review of jury selection before the process even began.

Justice Stephen G. Breyer didn't seem convinced. “If that had been his real reason, isn't it a little surprising that he never thought of it or didn't tell anybody until you raised the argument in your main brief?”

“It's hard to believe that's his real reason,” Breyer said.

Laundry List

Breyer was also unconvinced by Burton's argument that regardless of why they were actually struck, the laundry list of reasons prosecutors gave might have contained valid reasons for striking the potential jurors.

Breyer analogized that to a series of reasons his grandson might give for avoiding homework—the very fact that so many reasons were given made them less believable. “I think any reasonable person looking at this would say no, his reason was a purpose to discriminate on the basis of race.”

Burton noted that Batson was new law at the time, and suggested the prosecutors were merely feeling out how it worked.

But Justice Anthony M. Kennedy said that the note that one of the jurors “might be okay” if forced to pick a black juror undercut that argument.

Instead, it suggested that the prosecutors had “made a mistake” on the law. “Sure it was new, but they're wrong,” he said.

Kagan appeared to think the argument irrelevant. “Batson is a rule about purposeful discrimination, about intent. And so it doesn't really matter that there might have been a bunch of valid reasons out there, if it was clear that the prosecutor was thinking about race,” she said.

Justice Antonin Scalia suggested that the trial judge would have had a better view of the actual reasons why potential jurors were struck, but Kagan responded: “Justice Scalia raises … a good point in the mine run of cases, but not in a case where all the evidence of intentional discrimination was not before the judge at the time.”

‘A Serious Problem.'

Stephen B. Bright of the Southern Center for Human Rights, Atlanta, arguing for Foster seemed to have persuaded more justices of the merits of Foster's Batson claim.

He noted that many of the reasons for striking potential jurors that were “demonstrably false” could have been cleared up by questioning the jurors.

Here, “the failure to engage in any meaningful voir dire about whatever your reason is, is evidence suggesting that the explanation is a sham and a pretext,” he said, citing to Miller-El v. Dretke, 545 U.S. 231 (2005) (73 U.S.L.W. 1743, 6/14/05).

Justice Sonia Sotomayor wondered if the rule adopted by several circuit courts—that any legitimate reason to support a struck juror was sufficient to sustain the strike against a Batson challenge—was a good one.

“It can't possibly be,” Bright said, noting the opinion by Justice Samuel A. Alito Jr. in Snyder v. Louisiana, 552 U.S. 472 (2008) (76 U.S.L.W. 1566, 3/25/08), holding that a strike motivated “in substantial part” by race could not be sustained.

“And I would suggest to you, it shouldn't even really say substantial. Because if this court, as it said so many times, is engaged in unceasing efforts to end race discrimination in the criminal courts, then strikes motivated by race cannot be tolerable,” he added.

He also pointed to the argument of several former prosecutors as amici that reading laundry lists of reasons for strikes with the hopes that one of them would stick—as happened here, Bright said—is “a serious problem.”

Which Court?

But all of this was complicated by a procedural issue that left at least Sotomayor “confused.”

The Georgia Supreme Court denied Foster's petition for a certificate of probable cause to review the habeas court's rejection of his Batson argument. It was unclear to the justices whether this counted as a decision on the merits of Foster's claim.

Whether or not it was a decision on the merits depended on Georgia law about whether habeas appeals were discretionary or not—a question which, according to Burton, is pending in the U.S. Court of Appeals for the Eleventh Circuit but has not been definitively answered by the Georgia Supreme Court.

Kennedy asked if “this would be an appropriate case for us to exercise our discretion to certify the question to the [Georgia] Supreme Court?”

“We would certainly like an answer from the Georgia Supreme Court on that issue,” Burton said. “I think the Eleventh Circuit would like that as well.”

Whether the Georgia Supreme Court decided Foster's issue on the merits determines to which court—the state supreme court or the trial court—the U.S. Supreme Court directs its writ of certiorari, and potentially narrows the scope of review, Chief Justice John G. Roberts Jr. said.

The court indicated in the Oct. 30 letter that it may request supplemental briefing on this issue, but did not do so at oral argument.

To contact the reporter on this story: Nicholas Datlowe in Washington at

To contact the reporter on this story: Jessie Kokrda Kamens at

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