Jay Michaelson, THE DAILY BEAST
(The Daily Beast) – This term, the Supreme Court will consider an outrageous case of prosecutorial misconduct. But will it do anything about it?
A curious thing happened at the trial of Timothy Tyrone Foster, a young black man accused of killing an elderly white woman: every black prospective juror was dismissed. He was convicted, and sentenced to death, by an all-white jury.
Even more curious: there were 42 prospective jurors that morning, five of whom were black. All dismissed, four of whom by “peremptory challenge,” in which the prosecutor strikes a juror at his or her discretion. In Georgia, where Foster’s trial took place, prosecutors have ten such options.
Peremptory challenges were entirely unreviewable for most of American history. That was their function: in addition to dismissals with reasons, they were meant to give prosecutors and defense attorneys (in Georgia, defense attorneys get twenty such challenges) leeway to strike potentially problematic jurors without explanation.
That changed somewhat in 1986, when the Supreme Court decided Batson v. Kentucky. In Batson, the Court held that using peremptory challenges to strike jurors on the basis of race was unconstitutional.
Foster’s trial, though, took place after Batson. How is that possible? Because Batson has proven to be almost worthless in practice. All a prosecutor must do is provide some race-neutral reason for striking jurors, and that is extremely easy to do. Maybe the juror didn’t make eye contact. Maybe she was female. Maybe he looked bored or inattentive—as most of us are at the end of hours of jury duty.