The truth about juries and racial bias

The Observer editorial board

The Supreme Court’s ruling in a Georgia case sent a message about equal justice under the law.
The Supreme Court’s ruling in a Georgia case sent a message about equal justice under the law. Getty Images

Fact: It is unconstitutional for people to be kept off a jury simply because of their skin color.

Fact: It is standard operating procedure in courtrooms across the country for prosecutors to keep African Americans out of the jury box, especially when the defendant is black.

And for the most part, courts don’t do anything about it. Court rules say prosecutors just have to state a non-racial reason for weeding out blacks. So they do. Everything’s fine, as long as they don’t blurt out what is, in many instances, the real reason: Prosecutors prune blacks from juries under the commonly held presumption that they are more skeptical of law enforcement.

Why, it’s true, some will say. Prosecutors are just using smart tactics. But, as the Supreme Court said in a 7-1 ruling last week, they’re judging people by the color of their skin, a constitutional no-no.

The ruling came in the case of Timothy Foster, an African American death row inmate in Georgia. Foster argued that prosecutors in his 1987 trial aimed to strike blacks from the jury pool, leaving an all-white jury to decide his culpability in the killing of an elderly white widow.

Foster appealed, citing racial bias in jury selection. It was hardly an unusual charge. Inmates across the country make that claim. Georgia courts’ response to Foster’s appeal wasn’t unusual, either. They said they saw no evidence of purposeful discrimination.

This despite the fact that Foster’s team obtained prosecutors’ files showing that they’d kept notes on their decidedly race-conscious jury tactics. Their jury pool list showed the names of blacks highlighted in green. They even had a legend indicating that the highlighting “represents blacks.”

Their notes identified prospective black jurors as “B#1” or “B#2.” The letter “N” (for no) also appeared next to their names. On juror questionnaires, someone had circled black jurors’ race. They were even ranked – in case it came down to having to pick one of them.

Still, despite all of that, Georgia courts found that Foster had failed to show purposeful discrimination in jury selection. Chief Justice John Roberts called the flimsy excuses prosecutors offered “nonsense.” The nation’s highest court, clearly sick of the charades happening in trials across the country, blasted Georgia courts’ acceptance of those excuses as “clearly erroneous.”

The N.C. Supreme Court has heard appeals like Foster’s in more than 100 cases, according to the Durham-based Center for Death Penalty Litigation. The court has never ruled that it found racial bias lurking beneath a prosecutor’s race-neutral explanations for dismissing blacks.

Is that because no N.C. prosecutor has ever been guilty of it? Or because our state’s high court, like Georgia’s, is too readily accepting of the excuses offered for racially suspect jury selection tactics?

The Foster ruling shows just how real the latter possibility is.