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U.S. Supreme Court Decides 3 Cases Involving Race

This undated photo from the Georgia Department of Corrections, shows Timothy Tyrone Foster. The Supreme Court on Monday threw out a death sentence handed to Foster because prosecutors improperly kept African-Americans off the jury that convicted Foster of killing a white woman.
This undated photo from the Georgia Department of Corrections, shows Timothy Tyrone Foster. The Supreme Court on Monday threw out a death sentence handed to Foster because prosecutors improperly kept African-Americans off the jury that convicted Foster of killing a white woman.

The U.S. Supreme Court has ruled that a Georgia man sentenced to death is entitled to a new trial because prosecutors deliberately excluded all African Americans from the jury based on their race. The 7-to-1 ruling was one of three high court decisions issued Monday involving racial discrimination.

In announcing the jury selection decision, Chief Justice John Roberts used unusually harsh words to describe the prosecutors' conduct. He labelled their proffered non-racial justifications for excluding all the black prospective jurors "nonsense," and "not true."

The decision came in the case of Timothy Foster, a black man sentenced to death for murdering an elderly white woman. The trial was nearly 30 years ago and just a year after the Supreme Court had dealt for the first time with one of the key elements of the American jury system — the practice of allowing each side to eliminate a set number of prospective jurors without giving any reason.

These are called peremptory strikes, and in 1986, the court faced up to the fact that they can sometimes mask racial discrimination. The justices ruled that if minorities are disproportionately excluded from a jury panel, the prosecution has to justify its peremptory strikes with non-racial explanations.

In Foster's case, the trial judge and every appellate court thereafter accepted those explanations but the Supreme Court said Monday they were, in effect, a charade.

The prosecution's jury file, which the defense finally obtained in 2006, showed that the name of every black prospective juror was labelled with a B, and highlighted in green. The black jurors were rated against each other "in case it comes down to having to pick one."

As to the reasons prosecutors gave for striking black jurors, the court said they "cannot be credited," because white jurors with the same characteristics were accepted for the jury.

For example, the prosecution claimed that it struck Marilyn Garrett because she was divorced, and at age 34 was too young to serve in a case involving an 18-year-old defendant. But three out of four divorced white prospective jurors were allowed to serve, as were eight white jurors under the age of 36.

Similarly, the prosecution struck prospective juror Eddie Hood because his son was the same age as the defendant. But the prosecution allowed white jurors with teenage sons to serve. When called on that, the prosecution shifted its focus to Hood's son, claiming he had been convicted of a similar crime — a claim the chief justice scoffed at, noting that Hood's son had been convicted five years earlier of stealing four hub caps.

In the end, the court concluded that the "shifting explanations, misrepresentations of the record, and the persistent focus on race . . . in the prosecution's file" demonstrated an unconstitutional and "concerted effort to keep black prospective jurors off the jury."

The decision was a relief to defense lawyers and some prosecutors, among them Larry Thompson, who served as deputy attorney general in the George W. Bush administration, and before that as the chief federal prosecutor in Atlanta.

"What makes this case so important is that the Supreme Court clearly decided not to weaken the [current] standard," Thompson said. "And I think it will make it more difficult for prosecutors to engage in the kind of blatant and purposeful racial discrimination as the prosecutors did in this case."

But the court's decision did nothing to plow new ground to prevent more subtle or covert racial discrimination in jury selection. Indeed, the chief justice noted in his opinion announcement that it is rare to have such explicit evidence of race discrimination as existed in the Foster case.

Federal Judge Mark Bennett, who has written and lectured widely about implicit bias among juries, said he had hoped the court would take more affirmative steps to prevent biased jury selection — such as requiring prosecutors to prove by "clear and convincing proof" that there were legitimate non-racial reasons for striking qualified minority jurors. The current system, "is not very helpful in the real world," he said in a telephone interview with NPR, because "the judge has to call the prosecutor a liar" in order to force any change. Bennett, like others, also said he believes that there are inherent problems with the whole system of peremptory strikes.

Harvard Law Professor Charles Nesson, an expert on jury selection, says peremptory strikes invite discrimination.

Striking a qualified juror by saying "Sorry, you're gone," is "an insult, and yet, it's perfectly tolerated," Nesson said.

Indeed, studies have shown that exclusion of black citizens from juries is still a problem.

A study of death penalty juries in Houston County, Ala., showed that 80 percent of qualified black jurors were struck; the result was that in a 27 percent black county, half the death penalty juries were all white. Another study in North Carolina found that from 1990 to 2010, prosecutors excluded black jurors twice as often a non-black jurors.

Jury reform advocates note that conversely, studies have shown that interracial juries make fewer factual errors and deliberate longer.

There was just one dissenter in Monday's jury selection decision: Clarence Thomas, the court's only African American justice. He said that in his view, the reasons given for the peremptory strikes were credible.

The two other decisions released by the court on Monday also had racial components, but the decisions focused on adjacent issues.

In one case, the court dealt with the charge of racial gerrymandering in Virginia. Minority voters claimed that the redistricting initially enacted by the Republican-controlled state legislature had diluted their votes by packing them into one district. They won in the lower court; the state of Virginia declined to appeal, so three members of the U.S. House of Representatives appealed to the Supreme Court instead. The court, however, threw out the challenge, ruling unanimously that the House members had no legal standing to sue. In an opinion written by Justice Stephen Breyer, the court said there was no evidence that the House members had suffered any injury.

The decision leaves in place the lower court ruling and a redistricting map that spreads minority voters over more congressional districts, allowing these voters greater influence in more areas.

Finally, in an employment discrimination case, the court made it easier for federal employees to file employment discrimination claims. The postmaster of Englewood, Colo., filed a lawsuit claiming that he was the victim of illegal retaliation after he complained about being denied a promotion based on his race. He claimed that he was transferred to Wyoming as punishment for his discrimination complaint. Because the new job was 300 miles away and paid less, he retired.

He claimed, in essence, that the reassignment was so severe that it left him little choice and that he had been, in legalese, "constructively discharged." The Postal Service said he had waited too long to sue, but the Supreme Court ruled in his favor by a 7-to-1 vote, declaring that his suit was filed in a timely fashion. The court said the clock on such lawsuits does not start ticking until the employee resigns. Again, Justice Thomas was the lone dissenter.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.