The Batson Rule: Continuing the Fight Against Racial Discrimination in the Courts

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By David Zvirman, Staff Writer

The proposition that when a person is tried before a court that the jury should not be tainted with racial discrimination is not a new or novel idea. Unfortunately, there have been times throughout our country’s history where this idea has been tested. This has led to the creation of new rules and tests to prevent racial discrimination, culminating in the Batson Rule. However, cases of racial discrimination being used in jury selection still continue today, requiring the Supreme Court to intervene.

While the Batson Rule has been the law of the land since 1986, it was not the first time the issue of racial discrimination in the jury selection process was brought before the Court. In Strauder v. West Virgina, the Supreme Court held that a West Virginia law banning “colored men” from serving on juries violated the 14th Amendment.[1] The Court held that the 14th Amendment was designed to give the “colored race” the same protections under the law enjoyed by whites, and prohibited the states from infringing on Equal Protection.[2]

Almost 100 years later in Swain v. Alabama, this issue was again brought before the Supreme Court, however, with a somewhat different outcome.[3] The Court held that a black man was not entitled to a jury containing members of his race and that the prosecution’s use of peremptory strikes to remove all eight black men from the jury did not violate the 14th Amendment. To violate the 14th Amendment, the defendant would have to prove that the prosecutor actively worked to prevent a black man from ever being on a jury over a period of time.[4]

In 1986, the Court held in Batson v. Kentucky that the use of peremptory strikes to remove potential jurors solely based on race violated the 14th Amendment.[5] The Court also established what would become known as the Batson Rule. It set forth how to establish a prima facie case of purposeful discrimination by the prosecution in selection of the petit jury.[6]

A defendant must prove that (1) he is a member of a cognizable racial group, (2) that the prosecutor exercised peremptory challenges to remove members of the venire (jury pool) who were of the defendant’s race, and (3) that the facts and other relevant circumstances raise the inference that these removals were done solely on account of the member’s race.[7] Further, once a defendant establishes a prima facie case, the burden is on the prosecution to come forth with a neutral explanation for the strike.[8] This test was established to allow courts to properly and effectively deal with claims by defendants of racially motivated jury selections. Though, this has not always been the case.

In 1988, Timothy Foster was tried, convicted, and sentenced to death for the murder, sexual assault, and burglary of Queen Made White.[9] He had previously confessed and belongings of the victim were found at his home. During the jury selection process, the prosecution used its peremptory strikes to remove the only four black people from the jury pool. Foster raised a Batson challenge, claiming that the prosecution’s peremptory strikes were racially motivated. While his appeal was pending Foster and his counsel gained access to the prosecution’s original trial notes through the Georgia Open Records Act.[10]

These documents consisted of the following: (1) four copies of the jury venire list, with each of the black prospective jurors’ names highlighted in green and a corresponding legend that showed green meant black; (2) the notes of an investigator who aided the prosecution in the jury selection process discussing the black jurors and which ones would be OK on a jury; (3) notes on three of the black jurors referring to them as “B#1, B#2, and B#3”; (4) a list of the remaining jurors after the voir dire with “N’s” next to the names the prosecution planned to strike, which included all the black jurors; (5) a handwritten note titled “Definite NO’s” with all the black jurors names on it plus one white person; (6) a handwritten note with the Church of Christ written on it followed by “NO. No Black Church”; and (7) the questionnaires that had been completed by several of the black prospective jurors with their answers on the race question circled.[11]

The Georgia Superior Court of Butts County admitted this evidence but found that Foster failed to demonstrate purposeful discrimination.[12] With respect to his request for a “Certificate of Probable Cause” so he could appeal, the Georgia Supreme Court denied it — holding that his claim had no merit. Following this, the Supreme Court of the United States granted certiorari in 2015. In its analysis, the Court found that Foster did establish a prima facie case for racial discrimination and that the prosecution presented evidence of neutral causes for the strikes. Therefore, the Court found that it must review whether the trial court’s finding of no racial discrimination was erroneous.[13]

In his appeal, Foster focused on the removal of two jurors, Marilyn Garrett and Eddie Hood, as proof of discrimination.[14] In light of all the evidence, the Court found the trial courts finding erroneous and found the prosecution’s explanations for the strikes uncompelling.[15]

In regard to Garrett, the claims of her being too young, misrepresenting her familiarity to the location of the crime, and having two children could also be found in other members of the jury.[16] With regard to her age, Garrett was 34, and the prosecution used no strikes on the eight white jurors who were under 36. Additionally, the prosecution’s original claim at trial that she was only struck after another possible juror recused herself was contradicted by documents that showed she was always intended to be struck.[17]

In regard to Hood, the Supreme Court found the prosecution’s claims inconsistent.[18] In the initial trial, the prosecution claimed Hood was struck because he had a son the defendant’s age. The prosecution later claimed, however, that the main reason was because of his affiliation with the Church of Christ and its anti-death penalty stance. The Court found other white jurors had son’s the defendants ages and were not struck. Additionally, the religion claim was unfounded by the fact that Hood consistently held that he could impose the death penalty if required.[19]

Further, documents revealed that it was evident that race was the motivating factor — not because of a young son or religious belief. The prosecution argued that the documents showed an effort to make unbiased strikes. It said that Foster’s trial took place shortly after Batson and to make sure any strike survived a Batson challenge, it wanted to have as much information on all potential jurors as possible. The Court found that this argument “reek[ed] of afterthought.”[20] In the end, it found the strike of the two jurors was motivated by a desire to remove black jurors from the jury pool because they were black, violating the 14th Amendment.[21]

While the fight to prevent racial discrimination from tainting jury selection has come a long way since 1879, it is a fight still being fought. While no state has racial discrimination on par with West Virginia’s former law banning “colored men” from serving on juries, the instances of racially based actions have become subtler. In reading the amount of evidence that Foster had showing a racial bias, it shocks the conscious that his Batson claim had to make it all the way to the Supreme Court before it was properly heard. Reading Foster should make one take pause to wonder what would have happened had that evidence never come to light. Thus, the proposition that juries should not be tainted with racial prejudice is still very much relevant today.



[1] Strauder v. State of W. Virginia, 100 U.S. 303 (1879), abrogated by Taylor v. Louisiana, 419 U.S. 522 (1975).

[2] Id.

[3] Swain v. Alabama, 380 U.S. 202 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986).

[4] Id.

[5] Batson v. Kentucky, 476 U.S. 79 (1986), holding modified by Powers v. Ohio, 499 U.S. 400 (1991).

[6] Id.

[7] Id.

[8] Id.

[9] Foster v. Chatman, 136 S. Ct. 1737, 1745 (2016).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

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