By Carol Zimmermann • Catholic News Service • Posted May 25, 2016

WASHINGTON (CNS) — In a May 23 ruling, the U.S. Supreme Court said Georgia prosecutors violated the Constitution in a death penalty case nearly two decades ago by excluding prospective black jurors from the trial.

The 7-1 decision sent the case of Timothy Foster, an African-American facing the death penalty for killing an elderly white woman in 1986 when he was 18, back to Georgia for a new trial.

“Justice was upheld in this case, but the ruling does not fix the law to end juror exclusion on the basis of race,” said Karen Clifton, executive director of the Catholic Mobilizing Network to End the Death Penalty.

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“This case is a prime illustration of routine exclusion of black jurors from capital trials. Studies show all-white juries sentence defendants of color to death at a higher rate than white defendants,” she added in an email to Catholic News Service May 24.

The Supreme Court heard oral arguments in the case Nov. 2, when it was asked to consider if Georgia prosecutors violated rules against racial selection of juries by striking four prospective African-American jurors in the 1986 case. The defendant was tried by an all-white jury and his conviction led to a death sentence a year later, which also was a year after the Supreme Court ruled in Batson v. Kentucky that it was unconstitutional to strike jurors because of their race.

The possibility of racial bias in jury selection in Foster’s case came to light in 2006 when his lawyers gained access to prosecutors’ notes under Georgia’s Open Record Act. The notes showed that prosecutors had marked the names of black prospective jurors with a “B” and also highlighted those names in green. A handwritten note headed “Definite No’s” listed six people and included five black prospective jurors.

Chief Justice John Roberts Jr., writing for the majority, said the prosecutors had violated the high court’s 1986 Batson decision and were “motivated in substantial part by race” when they chose to exclude two black jurors. He said those two strikes “on the basis of race are two more than the Constitution allows.”

Roberts also said the “focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

Justice Clarence Thomas, who dissented, said in his opinion that he respected the decisions of state judges who sided with prosecutors and rejected Foster’s claims.

Although the court’s decision shines a light on possibility of racial discrimination in jury selections it didn’t do anything to limit peremptory strikes or challenges, which are lawyers’ ability allows to reject potential jurors, typically without offering any reason.

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“Maybe the time has come to strike peremptory challenges all together,” said Meg Penrose, professor of constitutional law at Texas A&M’s University School of Law.

She also noted that the country needs to “take a hard look at race in death penalty cases.”

“If we are going to impose the ultimate punishment, there really needs to be an assurance that race played no role” in the decision, she told CNS May 24.

Foster’s lawyer, Stephen Bright, who is president of the Atlanta-based Southern Center for Human Rights, said in a statement that the court’s decision “will not end discrimination in jury selection,” and he also pointed out that Justice Thurgood Marshall wrote in the Batson decision that such discrimination “would end only with the elimination of peremptory strikes.”

“The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination,” Bright said.

Penrose, who has represented Texas death-row inmates in federal court on a pro bono basis, said the Supreme Court should “devise a better way to determine if someone was judged in a racial manner” and she also was not convinced the current ruling would have a huge impact.

On a practical level, since this particular case would not have gone forward without the prosecutors’ notes, she is pretty sure prosecutors won’t be writing notes anymore.