Did the Georgia courts err in failing to recognize race discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), in the extraordinary circumstances of this death penalty case?
Lower court opinion: Foster v. Humphrey, 1989-V-2275 (Butts Co., GA, Sup. Ct. Dec. 9, 2013) (no link available)
This will be an important case, even though the circumstances are extraordinary. Briefly, at Foster’s capital murder trial the prosecutor struck all four black prospective jurors, providing about a dozen “race neutral” reasons for the strikes. On direct appeal the state supreme court rejected Foster’s preserved Batson claim, concluding the trial court didn’t err by finding the prosecutor’s explanations for the strikes to be sufficiently race-neutral and legitimate. Foster v. State, 374 S.E.2d 188 (Ga. 1988).
During state habeas proceedings, however, Foster discovered (through an open records request) the prosecution’s previously-withheld notes from jury selection. The notes are reproduced in Foster’s cert petition (starting at page 5) and, he argues, they reflect that the prosecution (1) marked the name of each black prospective juror in green highlighter on four different copies of the jury list; (2) circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors;” and (5) created strike lists that contradict the “race-neutral” explanation provided by the prosecution for its strike of one of the black prospective jurors. Nonetheless, the Georgia courts again found no Batson violation.
Foster argues the state habeas court failed to apply properly the three-step Batson analysis. In particular, the last step of that analysis asks whether, under all the relevant circumstances, the state’s facially race-neutral explanation for a strike should be believed. Batson, 476 U.S. at 96. See also Snyder v. Louisiana, 552 U.S. 472, 478 (2008); Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 339 (2003); Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 240 (2005). The state habeas court deferred to the previous state-court finding that the prosecutor articulated race neutral reasons and gave short shrift to the jury selection notes which, Foster argues, give the lie to the state’s proffered race-neutral reasons.
Clearly, then, this will not be just a one-off decision addressing the “extraordinary circumstances” of Foster’s case; instead, it will likely either reaffirm or alter how courts analyze Batson claims. It will be argued and decided next Term.
