Supreme Court rules that prosecutors intentionally kept black people off jury

The west pediment of the U.S. Supreme Court building in Washington.
(J. Scott Applewhite / Associated Press)

The Supreme Court rebuked Georgia prosecutors and judges Monday for having excluded black citizens from the murder trial of a black defendant, and then denying his claims of racial bias even after stark new evidence was revealed.

In an unusually biting opinion, Chief Justice John G. Roberts Jr. said it was “nonsense” and “not credible” for prosecutors to claim they acted for legitimate reasons when they struck several blacks from the jury pool.

For example, a prosecutor said one black juror was excluded because his son was convicted of “basically the same thing” as the defendant, who was charged with rape and murder. In fact, the man’s son had been given a suspended sentence five years earlier for stealing hubcaps from a car.


Roberts cited “the shifting explanations, the misrepresentations and the persistent focus on race in the prosecution’s file….(which) bear upon the issue of racial animosity.” The evidence “plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

The 7-1 decision overturned the Georgia Supreme Court and told its judges to consider whether a new trial is warranted in the nearly 30-year-old case of Timothy Tyrone Foster. He was convicted of strangling a 79-year-old white woman in Rome, Ga., and sentenced to death.

The high court did not announce a new legal rule for such cases or even say precisely what should happen next in Foster’s case. But the chief justice’s opinion sends a warning to judges that they have a duty to watch over prosecutors when juries are being selected.

Typically in criminal trials, both the prosecutor and the defense lawyer are permitted to strike an equal number of potential jurors based on a suspicion that these people will not view their case favorably. The notion is that these “peremptory strikes” will lead to a panel of jurors who can fairly decide the defendant’s guilt or innocence.

But in 1986, the Supreme Court announced a new rule and said potential jurors may not be excluded because of their race. In Batson vs. Kentucky, the justices told trial judges to question prosecutors if it appeared they were systematically striking blacks from the jury.


These so-called Batson challenges are a regular feature of trials. But the system has many critics. It depends on the honesty of prosecutors and the willingness of trial judges to probe the reasons for excluding particular jurors.

Stephen Bright, a prominent defense attorney and president of the Southern Center for Human Rights, appealed Foster’s case to the high court after notes in the prosecutor’s files revealed the potential jurors had been marked and coded by race.

He applauded Monday’s ruling and said it will lead to a new trial for Foster. But he also noted this was the rare case where the prosecutor’s note revealed their racial bias.

Two peremptory strikes on the basis of race are two more than the Constitution allows.

— Chief Justice John G. Roberts Jr.

“Usually that does not happen,” Bright said. “The practice of discriminating in striking jurors continues in courtrooms across the country. Usually courts ignore the patterns of race discrimination and accept false reasons for the strikes. Even after the undeniable evidence of discrimination was presented in this case, the Georgia courts ignored it and upheld Foster’s conviction and death sentence.”

All the justices but Clarence Thomas agreed in ruling for Foster. However, Justice Samuel A. Alito Jr. in a concurring opinion, said the Georgia courts may have procedural reasons for not giving Foster a new trial now.


The concern for racial bias in juries is a not new for Roberts and Alito. They joined past rulings from Texas and Louisiana which had overturned the murder convictions of black defendants who were tried by all-white juries. In Monday’s opinion, Roberts said the evidence of racial bias was apparent.

Roberts said files revealed during one of Foster’s appeals showed the prosecutors had carefully tracked the black members of the jury pool as “B#1” and ”B#2” and so on. On one file was marked “NO. No black Church,” suggesting black citizens should be excluded if they mentioned their church.

He all but accused the state and its prosecutors of lying to cover up what they had done. “The state attempts to explain away” the newly revealed evidence is not “an example of a prosecutor merely ‘misspeaking.’ This was not some off-the-cuff remark. It was an intricate story expounded by the prosecution in writing, laid out over three single-spaced pages in a brief filed with the trial court,” Roberts said.

“Two peremptory strikes on the basis of race are two more than the Constitution allows,” he said.

The high court stopped short of actually overturning Foster’s conviction and death sentence. Instead, it said the Georgia Supreme Court decision rejecting his race-bias claim “is reversed and the case is remanded for further proceedings not inconsistent with this opinion.”

In his dissent, Thomas said Foster had confessed to the murder of the elderly white woman, and he questioned why “the court affords a death-row inmate another opportunity to relitigate his long-final conviction.” Thomas said the prosecutors appeared to have rejected several black women for the jury because they believed the women would not vote for a death sentence.


In other rulings Monday, the court threw out an appeal from three Republican representatives who wanted to preserve election districts in Virginia that were deemed to be racially gerrymandered. The court by an 8-0 vote said the lawmakers had no standing to sue.

The court also cleared the way for a retired black postal worker from Colorado to sue for racial discrimination. Marvin Green said he was essentially fired when he was told that his only option was to leave the Denver area and take a lower-paying post in Wamsutter, Wyo.

In a 7-1 decision in Green vs. Brennan, the court said his suit was timely because he filed it within 45 days of the time he opted to retire. Thomas dissented and questioned whether the worker’s “constructive discharge” can be considered akin to being fired.

On Twitter: @DavidGSavage



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2:05 p.m.: This article was updated with more background information.

9:41 a.m.: This article was updated with more details about the ruling.

This article was originally published at 8:09 a.m.