Dahlia Lithwick and Slate.s Amicus podcast transcript: Discriminating jurors by race.

Why Do We Whitewash Our Jury Pools? Dahlia Lithwick on Dismissing Jurors by Race.

Why Do We Whitewash Our Jury Pools? Dahlia Lithwick on Dismissing Jurors by Race.

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Nov. 11 2015 3:26 PM
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The “Strike Zone” Transcript

Does race determine jury selection in death penalty cases? Read the discussion on the latest episode of Amicus.

black jurors.

Photo illustration by Slate. Photo by Thinkstock.

We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 29, in which Slate’s Dahlia Lithwick sits down with Stephen Bright, president of the Southern Center for Human Rights and lead counsel for the convicted murderer at the center of Foster. She also speaks with Glenn Ivey, one of the former prosecutors who have submitted an amicus brief on behalf of Foster.

Dahlia Lithwick Dahlia Lithwick

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

Three decades ago, the Supreme Court ruled in Batson v. Kentucky that race cannot be a determining factor in the process of jury selection. But because it’s so difficult to know what is really motivating prosecutors and defense attorneys to strike potential members of a jury pool, Batson has proven very hard to enforce.

Last week the Supreme Court heard arguments in Foster v. Chatman, a case in which the paper trail strongly suggests that race was a factor in the dismissal of potential jurors.

To learn more about Amicus, click here.

We’re a little delayed in posting this episode’s transcript—apologies. This is a lightly edited transcript and may differ slightly from the edited podcast.

Dahlia Lithwick: Hello, and welcome to Amicus, Slate’s podcast about the U.S. Supreme Court. I’m Dahlia Lithwick, Slate’s Supreme Court correspondent.

Now next week, the Supreme Court is going to hear a major, major case about race and jury selection. This is a case with facts so strange, it all sounds a little bit like a John Grisham novel.

Georgia prosecutors, seeking to give black teenager, Timothy Tyrone Foster, the death penalty for the brutal murder of an elderly white woman in 1987, managed to eliminate all four prospective African-Americans from his jury pool. This happened at voir dire, which is the fancy French word for jury selection process.

Now there are two stages in jury selection where you can get rid of jurors. The first is called for cause, where you have actual reasons for getting rid of them, and you have to state those reasons.

The second is called peremptory challenges, where you can just say, “I don’t like this juror; I want them to go.” And we know that you cannot, even using peremptory challenges, boot a juror because of their race.

The Georgia prosecutors say that race had absolutely nothing to do with the jury selection in Foster’s case. But Foster is a strange and weird appeal, because decades after his case was tried, the prosecutors’ notes from trial surfaced, showing that they went through the jury surveys and marked every prospective African-American juror’s name in a green highlighter, and notating each of the black jurors as B No. 1, B No. 2, and B No. 3, also noting which person to keep “if we had to pick a black juror.”

Now when the prosecutors struck each of these black jurors in Foster’s case, they always were able to proffer a neutral reason, like the juror had a son Foster’s age, even though there were white jurors with sons who were Foster’s age, who were, in fact, seated.

Now the George Supreme Court found nothing wrong with this system of jury selection. On Monday morning, the US Supreme Court is going to weigh in on whether Foster’s jury was fairly selected. We have two guests with us today, to discuss Foster v. Chapman.

The first is Stephen Bright. He’s President and Senior Counsel at the Southern Center for Human Rights. He’ll be representing Foster at the court Monday. And Bright is kind of a legend in the capital defense bar. He teaches at Yale Law School, and we are so delighted to have him today on “Amicus.” Steve Bright, welcome to “Amicus.”

Stephen Bright: Thank you so much for having me. I’m honored to be here.

Lithwick: Steve, I think in order to be completely clear, we need to start back in 1986, in Batson v. Kentucky, when the Supreme Court says that you cannot use race when you’re bouncing jurors.

But it left open the possibility–and I think Thurgood Marshall wrote about this in his concurrence–that anyone smart enough to pass the bar could generate a race-neutral explanation and say, “Oh, no, no, we didn’t strike him because of race; we just struck him because he didn’t make eye contact.” So, that was always the kind of fundamental failure of Batson, right?

Bright: Absolutely. I mean, Justice Marshall, of course, was the one member of the court who had actually tried cases.

And he said right then, “This is not going to work,” and it’s proven to be true, because prosecutors can give reasons—almost like the one you just said—like the juror didn’t maintain eye contact. The juror was bored. The juror seemed hostile. There’s no way to know whether those are true or not.

We do know that prosecutors distribute lists of race-neutral reasons before they’ve even seen the jury. So, the reasons are actually supposed to be the actual reasons that that juror was struck. But in our world today, separating race out of that is impossible.

Lithwick: It’s interesting. I’ve been reading so much commentary on Batson, leading up to this case. And in some sense, it looks like it was never going to work. And I wonder if the fundamental flaw at the heart of Batson was just putting way too much faith in trial judges and prosecutors.

Bright: Yes, I think that’s actually right. We sort of have wishful thinking for how we wish the people in the system would work, how the prosecutors would go about their business, and that they would not let race come into play, and that the judges would fairly judge these.

The problem is that when you’re asking a judge to find a Batson violation, it’s two things: One, that the prosecutor intentionally discriminated on the basis of race; and, second, lied about it by giving a pre-textual reason. In other words, the real reason was race, but the prosecution said, “The juror didn’t maintain eye contact with me.”

It’s very hard, particularly in the state system where the judges are elected, I think, both politically and psychologically, for a judge to look at that prosecutor—who he may have been in the District Attorney’s office with that prosecutor; he may have been the District Attorney before he became a judge—and say, “That person intentionally discriminated, and lied about it.” That’s just not going to happen most of the time.

Lithwick: And yet we know—and this is so amply evident in the record in this case–that there is such a deep racial taint in the way prosecutors select juries across this country. It is beyond dispute that black jurors get bounced from juries in hugely consequential numbers. I think it seems to me that, looking at this case, the only reason we’re able to talk about it in the Supreme Court on Monday is because we’ve got notes that prove it.

Bright: Well, and that’s what’s unfortunate is so often, there is some serendipitous factor—in Philadelphia, there was a videotape released in which one of the senior prosecutors was training the younger prosecutors. This was right after Batson had been decided and said, “Don’t discriminate on the basis of race.” So he’s conducting a training session, telling the young prosecutors how to base their strikes on race. And then he says, “Be sure to take down a lot of notes when you strike the blacks, because you’re going to have to give reasons.”

So, basically, the goal of many prosecutors—including these in the Foster case—was not to comply with Batson and stop discriminating; it was to figure out a way to get around Batson and to continue what’s been a historic practice throughout the history of this country of excluding black people from juries, and then find some way to get around it by giving these so-called race-neutral reasons, when everybody knows good and well what’s going on.

Lithwick: But, Steve, I think in order to be fair, we have to say that certainly the prosecutors in this case say, “Oh, the reason we used the highlighter and notated B one was precisely because we knew we were going to face a Batson hearing. And we were marking black, and we were writing B No. 1 precisely because we knew we were going to get called onto the carpet to defend these decisions.”

So, I think if you’re talking about the optics of this, you can certainly spin it the other way, too, right?

Bright: Well, except that if the prosecutors wanted to get ready for a Batson challenge, what they should’ve done is not discriminated in selecting the jurors. That excuse or reason doesn’t really hold up. I mean, the defense lawyers had come in and said, “They’ve always struck all the blacks. We think they’re going to strike all the African-Americans again in this case, but the Supreme Court has decided this case called Batson v. Kentucky that says you can’t do it.”

It’s interesting that in that discussion, there was never a suggestion that there would not be a Batson hearing. There was never a suggestion that, quite possibly, there would be no need for one because the prosecutors would accept some African-Americans on the jury. It was just a matter of the logistics of it. Once the prosecutor strikes all the blacks and all the juries have been picked, then we’ll have the Batson hearing, and the prosecutor will give the reasons. It was handled in a fairly perfunctory manner, which is what generally happens with regard to striking of African-Americans in jury selection.

One thing I’d point out, too: this takes place out of the presence, usually, of the public and the media—often in the judge’s office, or maybe up at the bench. So, people in the community come, and they see a trial going on, but there are no people of color in the jury, even in communities that are 20, 30, 40 percent African-American. And the people think—well, gosh, isn’t it interesting that every time we come to court, the juries are all white?

They don’t understand that the reason for that is that the prosecutors are striking all the blacks, and the judges are upholding it.

Lithwick: Can you just put yourself in the head of a prosecutor for a minute, and explain to me why they are so confident that striking black jurors is a smart initial move, and that it’s worth going through the contortions of justifying it later. Why is there such a deep, deep tradition, particularly in the South, of just saying, “We’re going to default to all-white juries”?

Bright: Well, I think what happened in this case is what happens so often—that people are just not treated as individuals but put in groups. I mean, the prosecutors said at one time, “This woman had the most potential of all the blacks in the jury pool,” as opposed to just treating her like one of many people—50 people—in this pool from which the jury was selected. I think in this case, the prosecutors wanted the death penalty. They argued to the jury to give the death penalty, to deter people in the projects, which were 90 percent African-American.

It is less likely that that appeal and getting the death penalty—at least the prosecutors figured—if they had African-Americans on the jury.

Now I think what Batson teaches is that you just have to accept people, without regard to race. If the jury decides not to impose the death penalty, you have to accept that. But I think when you’ve got young, ambitious prosecutors—as both these prosecutors were—they want to win at any cost.

And if the cost is to strike all the blacks so that you have an all-white jury that’s more likely to impose the death penalty, that’s what they’re going to do.

Lithwick: Steve, it strikes me, listening to you talk, that there’s such a common thread in so many of the kind of race doctrines we talk about on this show. And the thread is, look, we can’t really search your heart. We don’t know, at the end of the day, what’s going on, but just don’t be obvious, right? Don’t be ugly about it. We see that in the affirmative action cases. We’ve seen that in so many strains of constitutional law.

It feels like, at the end of the day, the Supreme Court at Batson said, “Just don’t be yucky about being racist. If you’re going to be racist, just do it quietly.” Certainly, it seems that the takeaway of Foster is, if you’re going to be racist, don’t put it on paper with the green highlighter. It seems like a very, very short-sighted and kind of naïve view of how to combat entrenched racial discrimination in this country.

Bright: Oh, it certainly is. We’ve had a lot of attention in the country lately to relationships between law enforcement and communities of color. What there’s been too little attention to, in my opinion, is, what happens to those people once they get in the criminal justice system—whether they’re accused of a minor crime, or whether accused of a crime that carries the death penalty? There are all these discretionary decisions, from whether to grant bail, what to charge, what plea offer to make—if there’s plea bargaining in the case—and 95 percent of all cases are resolved with plea bargains and the striking of the jury.

You have to remember, 95 percent of all prosecutors in this country—the chief prosecutors—are white. So, the criminal justice system does not reflect the society, and the decisions in these cases that have a tremendous effect on communities of color and are really destroying people, families, and communities. These decisions are mostly being made by white people and mostly white men.

Lithwick: I feel that it would be remiss, Steve, if I didn’t note that the murder of which Foster is accused is particularly grisly and heinous.

Bright: Yes.

Lithwick: I know that we have listeners who, the minute they hear about the facts of the case—and I’m sure it will be invoked at the Supreme Court on Monday—are done with this conversation. What do you say when you have to contend with someone who says, “This was a truly harrowing and horrific murder; he gets what he deserves”?

Bright: Well, it is a truly harrowing and horrific murder. It’s an 18-year-old, young black man in the murder of a 79-year-old white woman who had been a schoolteacher and was a beloved member of her community. At one time, the people of Rome would’ve simply taken Timothy Foster out and hung him from a tree, and there would not have been a trial.

But what we endeavor to do now in the courts is to give people, even those accused of the most heinous crimes, the most unforgivable crimes, to still give them a fair trial, so that the community sees the verdict—both the guilt/innocence verdict and, also, the penalty imposed, whether it’s death or life—as legitimate and credible.

When you exclude a part of the community from participating, when you say that there’s no place for African-Americans on the jury, then that community is going to have less confidence in the court system and in the judgments that it reaches.

This was not a one-sided case with regard to penalty. Timothy Foster’s intellectually disabled. He had the most horrific growing up imaginable. That doesn’t excuse or explain away what he did at all. He’s guilty; he had to be punished.

But the alternative of life in prison was available to the jury, as well, and it certainly was not a foregone conclusion. Well, actually, it was, but it should not have been a foregone conclusion that he was going to get the death penalty.

Lithwick: Steve, I want to play, for one moment, a little bit of audio from the last time you argued a Batson case at the U.S. Supreme Court in 2008. The case was Snyder v. Louisiana, and had to do with jurors who were presumably challenged for neutral reasons, who were, in fact, determined to have been thrown off for race reasons.

Now you won that case, 7–2. I wanted to listen to a little bit of oral argument. This is a colloquy between you and Justice Scalia that had to do with the specifics of just one juror, Miss Scott, who was presumably thrown off the jury because it was not clear if she could apply the death penalty. Let’s have a listen to you and Justice Scalia trying to figure out what the prosecutors were really doing when they were questioning Miss Scott.

Bright: That’s what they said. But here’s the other point with Miss Scott. It only took one question: “Miss Scott, what did you mean when you said, ‘I think you could’?”
I mean, that was in the opinion in Miller-El II—the fact that Fields wasn’t asked any questions about the position on the death penalty; he’d expressed some. But if the prosecutor is—
Antonin Scalia: Well, these are peremptory challenges. And it seems to me, if you have one juror who says, “I think I could,” and another one who said, “I could,” I’m going to strike the one who said, “I think I could.”
Bright: But, Justice Scalia, there’s no reason you wouldn’t ask them what they meant. And that’s what the prosecutors did with all the white jurors here—every single one.
It’s only Miss Scott, Elaine Scott, that there’s no questions asked about the reasons they gave for striking her. So, they had the opportunity to ask her what she meant, and they asked all 21 of the white jurors. They asked the—
Scalia: Did all 21 say, “I think I could”?
Bright: No, all 21 said no. And then the prosecution asked them follow-up questions about what their beliefs were. So, in those situations, the prosecutor—

Lithwick: At the risk of giving you flashbacks, Steve, if you remember back to arguing that case before the court, and then poised to argue this week before the court, it seems such an incredibly fact-specific conversation that you’re having. You’re literally trying to get in the head of a judge and a prosecutor who are agreeing to strike a juror and almost do a CT scan of what their real motives are. It’s so unlike most cases that come before the court, because it’s so fact-specific.

Bright: And you’re trying to make the determination on very circumstantial evidence, with a prosecutor saying, “No, I struck this person for…” whatever reason, and you’re looking at, well, did the prosecutor accept white jurors who had the same characteristic and strike the blacks? What I was talking to Justice Scalia about there was, the court had said, “If you’re really concerned about a reason, then you might ask some questions about it.”

One of the jurors here was struck because he was a member of a certain church. And the prosecutors represented that that church was against the death penalty and all its members were, even though the juror had said he could impose the death penalty. Well, all he had to do was ask one question: I mean, “Mr. Juror, do you know what your church’s position is on the death penalty?” And maybe a second one: “And if you do, do you follow it or not?”

In this case, it turned out that prosecutors actually had in their notes that the church did not take a position on the death penalty, so they totally misrepresented the facts to the court. And that’s in their notes.

There’s so many times when just asking one or two questions would have told us either that the reason was valid or that it wasn’t. But all of this is done by looking at all the evidence in the case, and then trying to infer from the facts what was going on.

Here, it seems pretty clear, because the prosecution developed a list of definite no’s; people who absolutely were to be struck. There were only six people on that list, and the first five were African-Americans—the only African-Americans left in the jury pool. The sixth was a juror who had said she could not impose the death penalty under any circumstances. So, it’s more important to strike the five African-Americans than the juror who was opposed to the death penalty.

So, from the very start, the prosecution had prioritized for striking the African-Americans.

Lithwick: Steve, I guess my last question to you is this: given that you’re not going to get the court to do away with peremptories, you’re not going to get the court to fundamentally change the world of the Batson hearing that we now live in—is the object here just to get five votes to say that, in this one case, the prosecutors overplayed their hand? That we were lucky enough to find the smoking gun, and Timothy Tyrone Foster gets another chance to have a jury free of racial taint?

Is that the most you can hope for, or do you go into Monday’s argument with some larger objective of moving the needle somehow in this conversation?

Bright: Well, the objective, first and foremost, is what you just described. My responsibility is to Mr. Foster, who’s on death row and will be executed. So we certainly hope the court will say, “If ever there’s a violation of Batson v. Kentucky, this is it.” But the court could, in doing that, say that these demeanor reasons—which are virtually impossible to verify—like saying the jurors are bored. Well, everybody’s bored, so that’s not really a reason for striking someone, and trial judges should scrutinize these reasons more carefully.

If it appears that race was a substantial motivating factor in the striking of a juror or the jurors, the trial judges should not allow it.

We should have more diverse juries that represent the communities, because the jury is the conscience of the community. In a death penalty case, it’s particularly important that, if the jury is the conscience of the community, that it be representative of the community.

Lithwick: Stephen Bright is the President and Senior Counsel at the Southern Center for Human Rights. He will be representing Foster at the court on Monday.

Steve Bright, it has been just a privilege and a pleasure to have you on “Amicus” today. Thank you for joining us.

Bright: Well, I’ve been glad to be on it. Thank you very much.

Lithwick: Now before we turn to our next guest, we thought we’d take you a little ways back in the audio way back machine, to hear a little bit of sound from the opening of oral arguments in Batson v. Kentucky. Remember, Batson is the landmark 1986 case that establishes that peremptory challenges cannot be used to bump jurors merely because of their race.

So, have a little listen to then-Chief Justice Warren Burger and J. David Niehaus, who argued the case.

Warren Burger: Mr. Niehaus, I think you may proceed whenever you’re ready.
J. David Niehaus: Thank you, Your Honor, Mr. Chief Justice. And may it please the Court, the issue presented today arose out of a state criminal proceeding in Jefferson County Kentucky, with which the prosecutor employed four of the six peremptory challenges that were allotted to him under court rule to remove all black persons on the panel of jurors. These panel members—

Lithwick: Joining us now is Glenn F. Ivey. He was elected to two terms as the State’s Attorney for Prince George’s County, Maryland, serving from 2003 to 2011. He also served as an Assistant United States Attorney for the District of Columbia from 1990 to 1994. Glenn Ivey and a group of federal and state prosecutors filed an amicus brief in the Foster case.

And, Glenn, we’re delighted to have you on the show. Welcome to Amicus.

Glenn Ivey: Thanks for having me. It’s a real honor to be on the show.

Lithwick: So, I’m confused. Explain something to me as a former prosecutor. Peremptory challenges go all the way back, my research says, to 1166, under British law.

Everybody hates them because they’re not fair, except prosecutors and defense attorneys just love them, because they need to be able to boot people off the jury on a hunch, right? Can you explain to me how something that feels so wrong can be so right?

Ivey: Well, you know, let me start by saying, I don’t share the typical view that most trial lawyers have, generally speaking. I think we’re sort of trained to think that we have this sixth sense, and we can sort of tell when a juror’s not going to go our way, and you need to get him off the jury in advance, even if you can’t strike them for cause, because they can scuttle your case otherwise.

In my experience as a trial lawyer, I had folks get on the jury that I just knew were going to kill me, and they came out for us—and vice versa. So, I think it’s really hard to know what people are really thinking. But it’s definitely deeply ingrained in the trial bar—civil and criminal.

Lithwick: Now you and a bunch of prosecutors filed a really significant brief in the Foster case, saying, “Look, on the one hand, we’re prosecutors, and the system exists the way it exists, but this is too much. The facts of this case are too much.” And you cite a number of briefs that show that, fairly consistently, studies just reveal that prosecutors strike African-American jurors at double or triple the rates of other jurors, and we see that in major studies out of North Carolina. We see that out of Louisiana.

What do we do about the fact that this is such a systemic problem, and that Foster is this one outlier case that really only gets to the Supreme Court, I think, because the prosecutors put it in writing?

Ivey: Yeah. I mean, Foster gets to the Supreme Court because it was so egregious and it was documented explicitly. You just don’t see that very often. In fact, I’d have to think back. I don’t know that I’ve ever seen it this explicit, since Batson came down.

But you’re right. For three decades, as Justice Marshall predicted, it’s continued to be a problem. He called for the end of peremptory challenges. He said, “We just need to get rid of them. Otherwise, there’s no way to be sure that you’re getting sort of implicit bias out of the system”—or, in this instance, explicit bias.

I’m starting to think he might be right. I think we’re at the point now where the studies show that it continues to happen. I think there are some prosecutors’ offices in the Department of Justice that have made efforts to provide training or training manuals to move away from that.

But, it’s still around; it’s just too pervasive. I think we have to start looking seriously at just eliminating peremptory strikes all together.

Lithwick: We just got off the line with Steve Bright, who’s going to be arguing this case on Monday at the Supreme Court. One of the things that he said that I’m sure doesn’t surprise you at all is that 95 percent of the chief prosecutors in this country are white, and that those entrenched values that are baked into the prosecutorial system, the judicial system, and the jury selection system. They just kind of exist to continue to perpetuate the sense that we just do not want African-Americans on death penalty juries.

But you are an African-American prosecutor, and I guess I want to hear your view of, is it the kind of thing that doesn’t change until we have more black prosecutors, or is something else going on that we’re missing?

Ivey: I think it’s a combination of things. I’ve heard prosecutors of all kinds—and trial lawyers, for that matter, of all kinds—of different backgrounds, racially and ethnically, who still sort of adopt these kinds of views.

The other part to think about, too, is that most of these prosecutors are elected. In the political process, politicians definitely think in terms of black voters along racial lines. I’m going to go after the black vote, or the white vote, or the women’s vote, or whatever. To the extent that carries over into the way they look at a courtroom, you end up with this kind of stuff. Keep blacks off the jury and that sort of thing.

So, I think it’s there. I think we do want to elect more black/Latino/female prosecutors and the like, but I don’t know that that’s going to be enough to fix the problem.

Lithwick: One of the things that I’ve read a lot about in the run-up to Foster is that the more you see African-Americans excluded from jury pools, the more apt they are to say, “The system doesn’t work.”

Bob Barnes had a good piece this week in the Washington Post just showing the unbelievable gap in confidence in the justice system that has emerged in this country between blacks and white.

I wonder how much you think a case like Foster, where prosecutors, as you said, render in writing, “We are not going to have an African-American on this jury”—how much that lends to the larger feeling, maybe even particularly post-Ferguson, that the whole game is fixed, and that the system really does exist to make sure that blacks do not get to participate in the system in a fair and equal manner.

Ivey: I think it’s a real key component of sort of the gulf. For example, you’ll get a jury verdict. Let’s say Trayvon Martin—or even a grand jury decision, for that matter, like in Ferguson. First question asked—not even just African-Americans, but the media—”What was the racial composition?”

I think that frequently, you find scenarios where there are no blacks, or there are few blacks, or they’re underrepresented, compared to the overall population. It really does put whatever that verdict is in a different light.

So, I think it’s problematic from that standpoint, although I think the criminal justice system has challenges from start to finish. There’s disparities in arrests, prosecution, and charging. I mean, it really kind of runs the gamut.

But it certainly is another brick in the wall, I think, between law enforcement and some minority communities.

Lithwick: Glenn, I wonder if you would help us, because I think it’s very easy to look at this case through the lens of prosecutors are lying and then lying about lying.

But it’s got to be more complicated than that. Can you help us understand the argument that’s being advanced here, at least in Georgia, that these prosecutors were just making these notes because they were anticipating that they were going to have to justify their peremptories? That they think this way precisely because Batson and its progeny forces prosecutors to think about the racial composition of a jury?

Ivey: Well, it’s kind of hard for me to defend, because, as you mentioned, I was a prosecutor at two different offices. In law school, I was a student prosecutor in Boston. At all of those offices, I was taught not to track race—for example, in the voir dire process—for a variety of reasons, but running afoul of Batson was one of those.

I do think it’s a little hard to argue that we had to keep track of the race of these folks as we were picking them, and they’re sitting there right in front of me, and that kind of thing—especially since the reasons that were given for the strikes at the time, and then subsequently, were all race-neutral. If your reasoning’s always race-neutral, why do you need to track the race of the jurors?

Then finally, to the extent you want to protect yourself against a Batson challenge, somebody’s got to keep track of the race of the jurors, but it wouldn’t necessarily have to be the prosecutors.

So in my view, this is not something prosecutors should do to start with, and I think you really need to be careful about the post-hoc rationalizations for why people were struck, because I think just a lot of these rang hollow. Especially since a lot of white jurors had similar characteristics for behavior, and they weren’t stricken from the jury by the prosecutors.

So, I think it’s a tough argument to carry the day. If the prosecution’s conviction is affirmed, it’ll have to be on other reasons, it would seem to me.

Lithwick: So, I just want to be clear that the amicus brief that you put your name to doesn’t seek to do away with peremptory challenges, but does seek meaningful self-policing, better best practices, and a really meaningful attempt by prosecutors, going forward, to kind of track this kind of behavior, and acknowledge it. Is that a fair assessment of what you’re asking for when you weigh in with the court?

Ivey: Yeah, I think so. I might be a little farther along than a lot of my colleagues or former colleagues. But I think, at a minimum, you want to make sure you have explicit training, especially when you get to serious cases like murders, and sexual assaults, and the like, because you should know going in that those cases are going to get more serious scrutiny than more minor cases. If you’re violating people’s constitutional rights, it’s more likely you’re going to have a serious case reversed.

So, just out of the best interests of the prosecutor’s office in that community, it seems to me, you’d want to be especially careful to make sure that you’re observing all of those rights and protecting them carefully. I think National District Attorneys Association and the Department of Justice might want to have more explicit training opportunities along these lines, maybe training materials that are sent to prosecutors’ offices. Some of these offices are very small, and they barely have enough resources to handle the cases they’ve got, much less generate training materials.

But I think you want to have that happen at that level. Most states have associations for the prosecutors in their state. I think you need to have that kind of training, as well.

But at the end of the day, the folks that could really send a message that would be a wakeup call for lawyers across the country—and especially prosecutors—that’s the Supreme Court. They could send a lightning bolt from the court that would land in every courthouse in this country, and I hope they do that when they render their opinion.

Lithwick: It’s interesting, because I wonder what you think about Steve Bright’s point, that prosecutors and judges, particularly at the state level in the South—cases that are coming up from Georgia and Louisiana, the so-called Death Belt—that they really reflect the values of their communities, and that it makes perfect sense to make sure that you are excluding black jurors, because they’re much less apt to give the death penalty.

They’re much less apt to be inclined to do what the prosecutors want, and that, in a strange way, these are just rational decisions when prosecutors say, “Look, I’m going for the death penalty, and we know, because the data shows us, one African-American on the jury changes the odds against me.”

So, I wonder what you do. You want a lightning bolt. You want a message that these are not best practices, but you certainly have a value system and a culture that says, “We want the death penalty,” and, moreover, “It’s irrational to put an African-American on the jury if we know that they’re going to undermine what I’m seeking to achieve.”

Ivey: Yeah, I think the counterargument is that it’s unconstitutional to keep them off for those reasons.

The beauty of judicial review is that, in scenarios like this, where people have political rationales for doing things that violate people’s rights, the Supreme Court can force them to change their conduct. This is one of those instances. The right ruling from the court could enable prosecutors in those jurisdictions to say,—if they think they need this kind of cover— “Yeah, I’d love to exclude blacks from my juries, but the Supreme Court says I can’t.”

I think it’s a little pathetic if you’re in a jurisdiction where that’s what you have to say to get elected. I think that says more about those voters than it does about the Constitution. But, at the end of the day, if the crime is the same, the trial needs to be the same. I don’t think white defendants should get a different kind of trial than the black defendants, and we can’t allow a system to permit that or even protect that.

I think we have to make sure we do everything we can to move the system more towards an equal-justice approach.

Lithwick: Our guest has been Glenn F. Ivey. He was elected to two terms as a State’s Attorney for Prince George’s County, Maryland, and served as Assistant US Attorney for the District of Columbia from 1990 to 1994. Glenn Ivey and a group of federal and state prosecutors filed an amicus brief in the Foster case.

Glenn, thank you so very much for joining us today on Amicus.

Ivey: Thanks for having me. I appreciate it.

Lithwick: And that is going to do it for another episode of Amicus. But our operators are all standing by to hear what you thought of today’s show. Our email is amicus@slate.com, and we truly love your letters.

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I’m Dahlia Lithwick. We’ll be back with you soon for another edition of Amicus.