Foster v. Chatman: Sonia Sotomayor had cousins in jail.

A Great Sonia Sotomayor Moment at the Supreme Court

A Great Sonia Sotomayor Moment at the Supreme Court

Oral argument from the court.
Nov. 2 2015 5:48 PM

Racism Highlighted in a Green Marker

The justices seem appalled by a Georgia death penalty case.

Sonia Sotomayor
Supreme Court Justice Sonia Sotomayor speaks at the Museo del Barrio in New York in 2013.

Photo by Keith Bedford/Reuters

Every so often, Supreme Court Justice Sonia Sotomayor reminds us that she isn’t quite the same as her colleagues when it comes to background and experiences. Sometimes it happens on Sesame Street. But—with increasing frequency—it can happen from the bench itself. Monday is one of those days.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The case is Foster v. Chatman, a dispute about how an all-white jury was seated in the capital murder trial of a young black man in Georgia. The year was 1987. The Supreme Court had only just decided, in a 1986 case called Batson v. Kentucky, that so-called peremptory challenges, which let prosecutors exclude a juror for no stated reason, could not be used in an attempt at “purposeful racial discrimination to bar African Americans from juries.” (Peremptory challenges stand in contrast to “for cause” challenges, where lawyers must explain to a judge why they are excluding a juror.) Of course, given the opportunity after the fact to proffer “a neutral explanation” for why they struck any one juror, most prosecutors—indeed most high-functioning middle-schoolers—can usually muster a reason that sounds reasonable and race-neutral. Supreme Court Justice Thurgood Marshall worried about the potential toothlessness of the ruling even as he signed onto the Batson ruling.

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Timothy Tyrone Foster, a black 18-year-old, was charged in connection with the brutal slaying of Queen Madge White, a 79-year-old white woman. In seating Foster’s jury, the two prosecutors managed to strike all four prospective black jurors. Later, at a hearing to determine if they had violated the Batson rule, prosecutors justified striking each of these jurors by saying that, for instance, the candidates failed to make eye contact, or looked bored, or had a son who was close in age to the defendant, or was a social worker. White jurors who shared many of those qualities were not excluded.

The trial court found no Batson violations. Foster was sentenced to death. At closing arguments, the prosecution told jurors that the death penalty “could deter other people out there in the projects.”

Twenty years later, in 2006, Foster’s lawyers got hold of the prosecution team’s jury selection notes under Georgia’s Open Records Act. The notes showed that every prospective black juror’s name had been flagged in green highlighter. They were identified as “B#1,” “B#2,” and “B#3,” and the notes mentioned which person to keep “in case it comes down to having to pick one of the black jurors.” The first four names on a handwritten list titled “Definite NOs” were those of the black jurors who were struck.

The Georgia courts denied an appeal by Foster’s lawyers, so they came to the Supreme Court on Monday morning to seek relief under the 14th Amendment. The argument is that the new evidence is a smoking gun proving that race was a huge factor in the juror challenges.

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The state of Georgia is arguing that—notes notwithstanding—prosecutors had a perfectly plausible, race-neutral explanation for sending each prospective juror on his or her way.

Stephen Bright, of the Southern Center for Human Rights, represents Foster. He argues that this is hard to credit, because, for instance, the state claimed that one potential juror, Marilyn Garrett, was allegedly bumped because she was a social worker and her cousin had a drug arrest. This despite the fact that she actually wasn’t a social worker, and the prosecutors had already admitted they only became aware of the cousin’s drug arrest after trial.

Justice Samuel Alito asks Georgia’s deputy attorney general, Beth Burton, just this: “Well, didn’t [the prosecutor] also testify … it has come to our attention since the trial of this case that Angela Garrett was arrested?”

Burton concedes that “It says—on that part of the transcript, which I cannot explain to you in—in contrast to in the notes, it is noted that she is the cousin prior to the jury selection, unless that means—and I've read it several times—since that time she's been dismissed from her job.”

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Alito comes back with: “What about giving a reason for dismissing her that she was close in age to the defendant? She was in her 30s. He was 18 or 19.”

Burton explains that “throughout, the overall theme was, we don’t want younger jurors. We’re looking for older jurors closer to the age of the victim. … So I think—maybe—I know it's not—not the most articulate framing of it, but I think it's more of a generational, she was younger.”

Shortly after this exchange is when Sotomayor leans over to ask Burton: “What did they do with the failure to ask Ms. Garrett any questions about the issues that troubled them, for example, her cousin’s arrest. There's an assumption that she has a relationship with this cousin. I have cousins who I know have been arrested, but I have no idea where they’re in jail. I hardly—I don't know them. But he didn't ask any questions. Doesn't that show pretext?”

That doesn’t happen every day.

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Earlier in the morning, Justice Stephen Breyer asked a similarly intimate question about trying to smoke out pretextual reasons, using his grandson’s homework evasion as an example: “Now, if my grandson tells me, ‘I don’t want to do my homework tonight at 7 because I’m just so tired. And besides, I promised my friend I’d play basketball. And besides that, there’s a great program on television. And besides that, you know, my stomach is upset, but I want to eat spaghetti.’ And so he’s now given me five different reasons.”

But there sure is something palpably different about a Supreme Court justice casually admitting that she has cousins in jail that she has lost track of and a Supreme Court justice who has an adorable grandson who makes funny excuses when he doesn’t want to finish his homework.

Breyer gets uncharacteristically frustrated when Burton advances the argument that the uncovered race-frantic juror notes were actually the prosecutors’ pre-emptive effort to comply with Batson, anticipating a future Batson hearing. This is a tricky argument to offer, given, as Foster’s lawyers note, that the state is only now arguing for the first time that the racially coded notes and lists were in anticipation of a Batson challenge. Or as Breyer puts it, referring to the prosecutor’s alleged strategy of noting race in advance of a Batson challenge, “If that had been his real reason, isn’t it a little surprising that he never thought of it?”

Now this whole appeal may well be derailed by an incredibly technical wrench that only got thrown into the case late Friday, when the Supreme Court asked counsel to be prepared to also explain whether the court’s decision in this case needs to be directed at the Supreme Court of Georgia or the Superior Court of Butts County, Georgia. A good 25 percent of Monday’s arguments were bogged down in the eye-crossing minutia of whether Georgia’s Supreme Court had made a discretionary decision or a merits decision, and there’s also a question about whether the Georgia high court made a ruling on state law grounds or on a federal constitutional question. At one point Sotomayor actually says, all but giving up, “I'm sorry. I’m so confused I can’t even … ”

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So that was all happening. But despite the confusion, most of the justices seem eager to get to the question, and most of them seem more or less appalled by Georgia’s after-the-fact justifications.

Justice Anthony Kennedy also challenges Burton’s claim that the prosecutors were just making racial notes to avoid a Batson challenge: “He puts down, if it comes down to having to pick one of the black jurors—was it Ms. Garrett?—might be OK. ... They've made a mistake of law in Batson. Sure it was new; but they’re wrong.”

Justice Elena Kagan is even more blunt, asking Burton: “Isn’t this as clear a Batson violation as a court is ever going to see?”

Now, of course, that has got to be right. The facts of this case are pretty appalling. But the fact is that racial bias in jury selection is endemic, and multiple studies show that blacks are kept off juries in staggering numbers across the country, all the time. One study by Reprieve Australia showed that prosecutors in Caddo Parish, Louisiana, struck would-be jurors who were black three times more often than they struck other jurors. In Houston County, Alabama, from 2005–2009, prosecutors removed 80 percent of blacks qualified for jury duty. The surprise isn’t what happened in Timothy Foster’s case; the surprise is that the prosecution didn’t send their notes through the shredder.

There is an overdue debate to be had about doing away with peremptory juror strikes altogether, but we aren’t ready to have it today. There are systemic changes we might enact to make prosecutors’ offices more vigilant about jury composition, but we don’t talk about that today either. Mostly, the court seems to want to signal that what happened on that jury in Georgia in 1987 was way, way out of bounds. Even if it probably happens—without the green highlighter—every day.