New York Law School

Mr. and Mrs. Irrelevant: Foster v. Chatman and the Problem of Jury Exclusion

2015’s Mr. Irrelevant…do you recall his name off the top of your head? No? Let me give you a hint; his name is essentially two first names. Give up? Gerald Christian. Does that name ring a bell? Do not be alarmed if it does not. His name probably does not mean anything to you unless you are an Arizona Cardinal fan and even then it probably still does not mean that much to you

Gerald Christian was the last pick in this year’s National Football League (“NFL”) annual’s draft which is probably why you do not recognize his name. See, as the last pick, Gerald was given the facetious title of Mr. Irrelevant. That title is bestowed each year on the last player picked in the NFL draft. The evolution of the title developed from the fact the last pick typically failed to make the selecting team’s final roster, thus rendering the player ultimately irrelevant.

In our justice system, sometimes, potential jurors are given the title of either Mr. Irrelevant or Mrs. Irrelevant because like the players in NFL, these potential jurors typically fail to make the “team” as they are routinely excluded from serving on juries. Naturally, the follow up question is: “what do I mean that potential jurors fail to make the team?” Let me explain. In our legal system, lawyers have a tool called a peremptory challenge — a device through which either side in a case can strike a set number of would-be jurors from serving, based not on any demonstrated “cause” or “prejudice” on the part of any potential juror, but on a mere hunch or a feeling that the stricken juror would not be good for that lawyer’s side. But, the right to use peremptory challenges is not without limitations. In Batson v. Kentucky, the United States Supreme Court made it unlawful to strike a potential juror on the basis of race.

So here is the problem, some lawyers and courts have ignored Batson, allowing lawyers to strike potential jurors based on race. As a result, many criminal defendants are appealing their convictions arguing that the prosecution violated Batson in striking people of color from the jury. One of those cases, Foster v. Chatman, will be argued before the Supreme Court this fall. This Georgia case has the ability to reshape future juries throughout the country.




Foster involves the 1987 trial of Timothy T. Foster, a Black man convicted and facing the death penalty for killing a White woman. Mr. Foster’s attorneys challenged his conviction under the Equal Protection Clause of the Fourteenth Amendment alleging that the prosecutors in the case used peremptory challenges to exclude Blacks from serving on the jury. In fact, there is evidence that prosecutors targeted Black jurors for exclusion. In notes that surfaced after the trial, prosecutors marked the name of each Black prospective juror in green highlighters on four different copies of the jury list.

In addition, Prosecutors circled the word “BLACK” next to the “race” questions on the juror questionnaires of five Black prospective jurors. Furthermore, the prosecutors identified three Black prospective jurors as “B #1”, “B #2”, “B #3” and also ranked the Black prospective jurors against each other in case “ it comes down to having to pick one of the Black jurors. Finally, the prosecutors created lists of strikes that contradicted the “race-neutral” explanations they provided the court for their strike of one of the Black prospective jurors. A 34-year old Black woman was purportedly “cut from the team” because she was too close in age to the Black defendant.

At the time of the trial, the defendant was 19. Furthermore, the prosecutor did not challenge eight other prospective white jurors age 35 or under, one of whom was the only a few years older than defendant. And despite all these issues, the Georgia court declined to find a Batson violation.

It is impossible not to see the racial theme in the prosecutor’s use of challenges and the trial court should have found that a violation of the Equal Protection Clause had been committed. But because the court did not, Mr. Foster was convicted, and his lawyer’s arguments at the time were essentially rendered superfluous. The trial court’s decision, albeit twenty-nine years ago, not only ignored the Batson court’s ruling, but went against the very premise of Batson. If the trial court’s ruling is upheld, it will essentially eradicate Batson.

What Foster v. Chatman does is highlight how most racial discrimination in jury selection occurs under the guise of purportedly “race-neutral” justifications created by prosecutors with the specific objective of defeating Batson challenges. Ruling against Mr. Foster would legitimize the prosecutor’s specious use of a challenge when they stated that a potential Black juror could not serve on the jury because of her age, but not challenging similarly situated white jurors.

Moreover, ruling against Mr. Foster would have greater reverberations across the country, it would suggest that there is nothing wrong with the fact that in Caddo Parish, Louisiana potential Black jurors were struck 2.7 times the rate of others over the course of 22 trials. Upholding the trial court’s decision would allow bigoted judges to nod their heads in approval of what the State of Michigan does. In a 2010 study by Michigan State University, law professors found that prosecutors had struck 53 percent of Black potential jurors compared to 26 percent of others.

Upholding Foster would essentially imply that courts should accept any justification of a strike. If anything, it would provide lawyers prosecutors an unblemished path towards more discrimination against Black defendants and Black jurors. Take for example the strike of another potential Black jury member in Foster. The Prosecutors removed a prospective Black juror because one of his sons had been convicted of misdemeanor theft, which Prosecutors claimed was “basically the same thing as the defendant was charged with.” In actuality, the juror’s son had been given a suspended sentence for stealing hubcaps from a car in a parking lot five years earlier while the defendant, Mr. Foster was on trial for capital murder.  Making justifications like this acceptable would cripple the ruling in Batson and suffocate any defendant’s hope of successfully challenging discriminatory use of peremptory challenges.

On the other hand, should the Supreme Court rule in favor of Mr. Foster, it will not only bolster the Batson decision, but it could prompt defendants, whom have been denied Batson challenges, to appeal the decisions regarding those denials. For example, Foster could impact cases in North Carolina from 2012 when a state trial judge found that prosecutors in his state had created a “cheat sheet” of race-neutral reasons to offer when challenged. Among the choices were “air of defiance,” “arms folded” and monosyllabic responses. Foster could also provide lawyers in Alabama a basis for reexamining cases from prior years. In a five-year period ending in 2010, according to a lawsuit, prosecutors in Houston and Henry Counties in Alabama used peremptory strikes to remove 82 percent of eligible black potential jurors from trials in which the death penalty was imposed. Ruling in favor of Foster will give lawyers the opportunity to file appeals on behalf of their clients in cases in which they believe that a Batson violation may have been committed thus providing their client with another chance at obtaining justice.

However, it is not just defense-minded individuals that feel this way. Eight veteran prosecutors, including former U.S. Deputy Attorney General Larry Thompson, filed an amicus brief, asking the US Supreme Court to “recognize and refuse to condone the blatant illegality of the prosecutorial misconduct” that led to Foster’s death sentence.

In the words of Mr. Foster’s lawyers; “The rejection of Foster’s Batson claim must be reversed. The evidence of race discrimination in this case is overwhelming, such that this Court should be left with the definite and firm conviction that a mistake has been committed.”

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