Last week, the U.S. Supreme Court heard arguments in a case regarding whether Timothy Tyrone Foster lives or dies.

Nearly 30 years ago, an all-white jury sentenced Foster, then an 18-year-old Black kid, to death for the murder of an elderly white woman in Floyd County, Georgia. The prosecution had eliminated every eligible Black person from the jury pool. And once the prosecution had obtained an all-white jury, the lead prosecutor, Stephen Lanier, urged said jury to impose the death penalty in order to “deter other people out there in the projects.”

The all-white jury obliged.

Now, one of the issues looming before the Supreme Court is whether or not the prosecution’s purportedly race-neutral reasons for striking the Black jurors ensured that Foster would face a jury that would be susceptible to racially inflammatory comments like Lanier’s. 

The racism in Lanier’s statement to the all-white jury about “other people out there in the projects” certainly seems clear—after all, at the time 32 of the 34 units in the local housing projects were occupied by Black families. And it’s hard to believe that Lanier would have made that statement to the jury if there were a Black person sitting in the box.

But there wasn’t, because the prosecution had used its peremptory challenges to strike each of the four qualified Black jurors.

Lawyers in criminal cases are permitted to use nine peremptory challenges to eliminate jurors for any reason they want to, with some important limitations.

In 1986, in a case called Batson v. Kentucky, the U.S. Supreme Court ruled that jurors could not be excluded from sitting on a jury because of their race, and set up a system by which a trial court could hold a special Batson hearing and determine whether a prosecutor was striking jurors due to their race, or due to some race-neutral reason.

Foster, through his attorneys, asked the trial court to hold just such a hearing. Ultimately, the trial court didn’t think that Lanier used his challenges to strike every Black juror because of their race.

Every subsequent appellate court agreed; the prosecution had provided sufficient race-neutral reasons for striking the Black jurors, they said, leaving Foster’s fate in the hands of an all-white jury.

After that jury convicted Foster and sentenced him to death, Foster asked the court for a new trial. He argued that the trial court had made a mistake when it rejected his Batson claim. In response, the prosecution piled on even more “race-neutral” reasons for striking all of the Black jurors.

One of those reasons? That the investigator who helped the prosecution during jury selection was Black. This is about as close to “one of my best friends is Black” as you’ll find in a legal context.

The court rejected Foster’s Batson claim a second time.

In 2006, almost 20 years after Foster was sentenced to die, his attorneys obtained copies of the prosecution’s jury selection notes. And those notes changed everything, revealing almost mustache-twirling levels of villainy with regard to the prosecution’s efforts to eliminate every Black juror from the pool.

The notes contained four copies of a list of prospective jurors. On each of the four copies, the names of the Black jurors were highlighted in green and marked with the letter “B.” On the juror questionnaires, where prospective jurors had indicated their race, the prosecution had circled the word “Black.” All of the Black jurors were listed on the prosecution’s list of “Definite NOs.” And the prosecution ranked the Black prospective jurors in case, according to a draft affidavit signed by the prosecution’s investigator, “it comes down to having to pick one of the black jurors.”

The notes confirmed Foster’s attorneys’ suspicions. They had always believed that this was a clear case of racial discrimination. Before jury selection even had begun, they informed the trial court in a brief that the District Attorney’s office had a nasty habit of excluding Black people “from being allowed to serve on juries with a black Defendant and a white victim.”

And during Foster’s Batson hearing after the jury selection process was over, Foster’s attorneys pointed to a mountain of evidence that suggested the prosecution had repeated that nasty habit this time.

In response, the prosecution threw supposedly race-neutral reasons for striking jurors at the trial court like so much spaghetti on a wall. “All I have to do is have a race-neutral reason,” Lanier said, “and all of these reasons that I have given the court are racially neutral.”

Well, not exactly. A closer look at these reasons reveal that they are dubious at best.

During the Batson hearing, Lanier piled on explanations for why he eliminated all the Black jurors, presumably in the hopes that the court would latch onto one of them, even if other reasons were suspect.

Some of the reasons were thinly veiled dog whistles. Lanier claimed that each of the Black jurors was some combination of confused, incoherent, hostile, disrespectful, or nervous, and struck them on that basis.

Lanier also removed Black jurors from the jury pool for avoiding eye contact, being divorced, being a social worker, or appearing to be bored. When not criticizing the Black jurors for their demeanor in court, the prosecution exaggerated facts to make them look problematic, and gave reasons for striking Black jurors that applied to white ones who made it onto the jury.

For example, Lanier explained to the trial court that his approach in capital cases was to discriminate against women, not Black people: “Women have a tendency in a case of this nature where the death penalty is being sought—they have serious reservations, time conflicts, or whatever it may be, but that is what I look at when I am trying a death penalty case.” (In 1994, long after Foster had already been convicted and sentenced to death, the Supreme Court ruled that barring women from serving on a jury violates the Equal Protection Clause.)

Of the four prospective Black jurors, three were women. In the end, five white women ended up serving on the jury.

In one specific instance, Lanier claimed that Marilyn Garrett, one Black juror, was too close in age to the defendant. She was 34. At the time of trial, the defendant was 19. The prosecution accepted eight white prospective jurors who were 35 or younger, including one who was 21 years old.

In another, Lanier struck a Black juror, Eddie Hood, because he “asked to be off the jury.” But when Lanier used a peremptory challenge to strike a different Black juror, he said it was because that juror didn’t ask to be off the jury.

The prosecution also kept changing their tune when justifying their peremptory challenges.

In Hood’s case, Lanier originally said in the pre-trial hearing that he was concerned that Hood had an 18-year-old son, the same age as the defendant.

But on the motion for new trial, after the prosecution accepted two white jurors who had sons in the same age range as Foster, as well as the aforementioned 21-year-old white man, Lanier switched gears. Suddenly, Hood’s membership in the Church of Christ became the primary justification for eliminating him from the jury pool.

That reason was suspect too, however. Lanier claimed that the church “definitely takes a stand against the death penalty” even though Hood repeatedly said that he was not against the death penalty and was willing to impose it. Also, Lanier’s claim was later contradicted by the prosecution’s notes, which said the Church of Christ “doesn’t take a stand on [the] Death Penalty,” leaving the issue for “each individual member.” And, more egregiously, the prosecution’s notes said “NO. No Black Church” with an emphasis on “Black.”

Lanier also said that one of the Black jurors “appeared to have a low income occupation.” Notably, the Black juror’s “low income occupation” counted against her, but a white woman who went on to serve on the jury had almost the same job. Both women were teacher’s aides at local schools. In fact, the prosecution said that it wanted jurors that were “teachers or associated with teachers” because the victim was a retired schoolteacher. The prosecution proceeded to accept every teacher and teacher’s aide—except the Black juror.

The prosecution tried to explain away the difference in the way they treated the Black and white teacher’s aides by claiming that the Black teacher’s aide worked with underprivileged kids, and the white teachers aides did not. But during jury questioning, Lanier did not ask about whether or not the students with whom the white teachers and teacher’s aides worked were underprivileged.

These examples are but a few of the ridiculous reasons the prosecution offered to explain striking every potential Black juror. According to Foster’s attorneys in the case currently before the Supreme Court, the new evidence from the prosecution’s notes establishes that the prosecution purposefully eliminated Black jurors in order to secure an all-white jury; a jury that would impose the death penalty to send a message to Black people in the projects.

It’s outrageous, but, sadly, this is simply part of a long tradition of racial discrimination in a jury selection system that has failed Black people since the founding of this nation.

Numerous studies show that prosecutors strike Black jurors at significantly higher rates than white jurors, demonstrating their failure to take seriously the requirement in the Constitution that every citizen has an equal right to sit on a jury.

In 2012, a North Carolina state court found, based on a study of jury pools in 173 capital cases, that prosecutors were more than twice as likely to eliminate Black jurors from the jury pool than white jurors.

A 2012 study of 332 felony juries trials prosecuted in Caddo Parish, Louisiana, between 2003 and 2012 found that prosecutors struck Black jurors at more than three times the rate that they struck white jurors.

And in death penalty cases between 2005 and 2009 in Houston County, Alabama, prosecutors used peremptory challenges to eliminate 80 percent of qualified Black jurors. 

This sort of discriminatory behavior harms criminal defendants, especially in death penalty cases where the defendant is Black and the victim is white. According to the Equal Justice Initiative, “all-white juries tend to spend less time deliberating, make more errors, and consider fewer perspectives.”

The conduct also harms the excluded juror, who is prevented from participating in an important civic duty. Turning away Black jurors furthers stereotypes that Black people are unfit to serve on juries, creates false presumptions that Black people cannot be fair or follow the law, and, according to one Supreme Court case, Miller-El v. Dretke, undermines the integrity of our justice system.

This isn’t just happenstance or bad behavior by a select group of rogue prosecutors. In many instances, prosecutors are trained to cover up racial discrimination in the jury selection process by keeping race-neutral explanations for striking Black jurors in their back pocket, lest defendants mount a Batson challenge, according to an amicus brief filed in Foster’s Supreme Court case by a group of prosecutors, including author Scott Turow, and former Deputy Attorney General Larry Thompson, who served in the George W. Bush administration.

In North Carolina, for example, the North Carolina Conference of District Attorneys held a statewide training course that provided a list of justifications that prosecutors could use when striking Black jurors: a document entitled “Batson Justifications: Articulating Juror Negatives.”

And in a now-infamous training video, former Philadelphia District Attorney Jack McMahon advised trainees that keeping Black, low-income, and educated citizens off juries is key to securing convictions.

As reported by Philly.com in 1997, McMahon’s advice reached almost comical levels of racism as he explained to a group of trainees that:

In selecting blacks, you don’t want the real educated ones. This goes across the board. All races. You don’t want smart people. If you’re sitting down and you’re going to take blacks, you want older black men and women, particularly men. Older black men are very good ….

My experience, young black women are very bad. There’s an antagonism. I guess maybe because they’re downtrodden in two respects. They are women and they’re black … so they somehow want to take it out on somebody and you don’t want it to be you .…

The blacks from the low-income areas are less likely to convict. I understand it. It’s an understandable proposition. There’s a resentment for law enforcement. There’s a resentment for authority. And as a result, you don’t want those people on your jury.

This sort of race-based jury selection isn’t one-sided. Just as prosecutors tend to eliminate Black jurors from jury pools, defense attorneys tend to eliminate white jurors. The only difference is, prosecutors generally have a larger group of white potential jurors to choose from, so it’s often easy for a prosecutor to eliminate every Black juror from the jury pool. Defense attorneys cannot eliminate every white juror from the jury pool because there are too many of them. It’s a simple numbers game.

If the Supreme Court actually addresses the crux of the case, it’s likely that it will side with Foster’s attorneys, leading to a new trial. After all, four justices agreed to hear it in the first place, and it shouldn’t be too difficult for those four to find a fifth to agree with them, especially in light of Snyder v. Louisiana, a factually similar case which saw Alito and Roberts siding with the liberal wing of the Court to find by a vote of seven to two—with Alito writing the majority opinion—that the prosecution’s use of peremptory challenges were not race-neutral.

I wouldn’t be surprised if Alito and Roberts once again join the liberal wing if the Court rules in Foster’s favor.

But, as Lyle Denniston points out over at SCOTUSblog, during oral arguments, the justices spent a lot of time on the procedural complications of the case. That may prevent the justices from even reaching the merits of the case—the Court may simply kick it back to state court and let Georgia sort it out.

If that doesn’t happen, though, the Court will hopefully provide some guidance to trial courts about how to evaluate prosecutorial claims of race-neutrality, especially when there’s overwhelming evidence that the prosecution is impermissibly eliminating Black jurors because of their race.

Ultimately, a Batson challenge is toothless if a prosecutor inventing after-the-fact race-neutral reasons for eliminating Black jurors can overcome it.