BY: LAUREN MADDOX
In 1986, the Supreme Court decided Batson v. Kentucky, holding that use of peremptory challenges to remove jurors from the jury pool based on race is a violation of the Equal Protection Clause of the Fourteenth Amendment. The following year, Timothy Tyrone Foster, an 18-year-old black male, was convicted and sentenced to death by an all white jury for the murder of Queen Madge White, a 79-year-old white woman in Rome, Georgia. Prosecutors eliminated one black juror for cause and used four of their nine peremptory strikes to dismiss the remaining four potential black jurors.
Foster’s counsel obtained the prosecution’s notes in 2006. These notes were telling: black jurors’ race was circled on their questionnaires; their names were highlighted and marked with a “B”; and there was a list of “Definite NOs” beginning with all five black jurors. In 2013, the Georgia trial court rejected the defense’s claim that the prosecution removed these jurors based on race because the prosecution’s notes did not demonstrate “purposeful discrimination” as required by Batson. One could imagine several reasons other than the prospective jurors’ race that led the prosecutor to dismiss them, including failure to make eye contact, a guarded response, or a defensive stance. The prosecutor, however, led the defense to think otherwise, stating the jury should sentence Foster to death in order to, “deter other people out there in the projects.” This statement came at a time when the local housing project was 90% black.
On November 2, the United States Supreme Court will hear the case of Foster v. Chatman and decide whether Georgia courts erred by denying Foster’s claim of racial discrimination during jury selection in his case. In his concurring opinion in Batson, Justice Thurgood Marshall anticipated the issue the Court will face in Foster: “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.” It is doubtful that Foster v. Chatman will lead the Court to abolish peremptory challenges, but it does give the Court an opportunity to enforce Batson at a time when many would say faith in the criminal justice system is fading.
Peremptory challenges give prosecutors freedom to strategically eliminate jurors. After all, these are the very people they must be able to persuade to win a case. A prosecutor may eliminate a juror who he perceives to have a bias, even though this perception is one he cannot prove; for example, a juror who frowns when asked how he feels toward police, yet verbalizes a neutral answer may not be someone a prosecutor wants to serve on the jury. Abolishing peremptory challenges could potentially lead to more jurors with a bias that is not easily detected. Nevertheless, peremptory strikes doubtlessly involve what a lawyer believes to be true about a prospective juror, even if this belief is unfounded. While a prosecutor’s strategy to eliminate jurors may be conscious, like categorizing jurors by race or gender, he may also harbor an implicit bias that creeps its way into the jury-selection process.
Foster v. Chatman gives the Supreme Court the opportunity to address the systemic discrimination that remains almost thirty years after the Batson decision. It is doubtful that the Court will go so far as to follow Justice Marshall’s suggestion; however, the Court’s failure to find purposeful discrimination in this case would reinforce the racial discrimination long associated with the jury-selection process.
 Linda Greenhouse, The Supreme Court’s Gap on Race and Juries, New York Times, (Aug. 5, 2015), http://www.nytimes.com/2015/08/06/opinion/the-supreme-courts-gap-on-race-and-juries.html?_r=0; See Batson v. Kentucky, 106 S.Ct. 1712, 1713 (1986).
 Brief of Petitioner at 2, Foster v. Chatman, (2015) (No. 14-8349).
 Id. at 14.
 Id. at 3.
 Garrett Epps, The Death Penalty Feud at the Supreme Court, The Atlantic (Oct. 13, 2015), http://www.theatlantic.com/politics/archive/2015/10/the-death-penalty-feud-at-the-supreme-court/410224/; See Batson, 106 S.Ct. at 1723.
 Robert Barnes, Supreme Court to Examine Racial Divide in Jury Selection, The Washington Post (Oct. 25, 2015), https://www.washingtonpost.com/politics/courts_law/supreme-court-to-examine-racial-divide-in-jury-selection/2015/10/25/005ecc56-774d-11e5-a958-d889faf561dc_story.html.
 Id; See Batson v. Kentucky, 106 S.Ct. 1712, 1726 (1986).
Lauren Maddox is a 2017 Staff Editor for The University of Miami Race and Social Justice Law Review.