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Matt Evola*

In 1986, Timothy Foster, an eighteen-year-old black teenager, was convicted of killing Queen Madge White, an elderly white woman, in Georgia.1 At trial, the prosecutor used four of his nine peremptory strikes to remove all prospective black jurors.2 Foster was subsequently sentenced to death by an all-white jury at the urging of the prosecutor, who insisted the jury needed to “deter other people out there in the projects.”3 Foster’s case has made its way to the Supreme Court almost thirty years later.4 Foster v. Chatmon highlights the untenable position peremptory challenges occupy in modern American jurisprudence and demonstrates, once again, why a change to the system is necessary.

Paul Smith, chair of the appellate and Supreme Court practice at Jenner & Block, filed an amici curia brief in Foster’s case on behalf of former prosecutors “who recognize, and refuse to condone, the blatant illegality of the prosecutorial misconduct at issue.”5 In his brief, Smith noted the numerous ways black jurors were singled out, including highlighting names with a green marker on the jury list, marking a “B” next to their names, circling the word “BLACK” in jurors’ questionnaires, referring to three prospective jurors as “B #1,” “B #2,” and B #3”, and ranking black prospective jurors against each other in case “it comes down to having to pick one . . .”6 Having singled out the prospective black jurors, the prosecution then systematically eliminated them from consideration using peremptory challenges. The Batson violations could hardly be more blatant:

The prosecution provided eight to ten “race-neutral” reasons for each of the four strikes. Some of those justifications were blatantly inaccurate (one thirty-four-year-old potential juror was struck in part due to her “age being so close to the [nineteen-year-old] defendant”); some were extreme exaggerations (that “theft by taking” arising from stealing hubcaps from a car is “basically the same thing that this defendant is charged with,” where the defendant was facing a capital indictment for murder, burglary, and theft by taking); and some directly contradicted others (one black juror “asked to be off the jury,” while another did not ask to be let off the jury). Many of the reasons applied equally to white jurors who were allowed to serve—for example, Marilyn Garrett’s occupation as a teacher’s aide counted against her even though the prosecutor claimed to want jurors who were “associated with teachers” and accepted every white teacher and teacher’s aide in the qualified pool. The prosecution even gave reasons that applied with greater force to white jurors who the prosecution kept on the jury. For example, the prosecutor voiced concern that Hood’s son was near the same age as the defendant. When jurors were asked whether the defendant’s age would be a factor in sentencing, Hood replied “none whatsoever,” while a white juror with teenage sons replied “probably so.” Hood was struck and the white juror was accepted.7

Smith additionally highlighted the substantial, contemporary issues with peremptory strikes. He noted that prosecutors have become adept at providing facially race-neutral justifications for strikes and that judges struggle to distinguish legitimate from pretextual strikes.8 Some prosecutors even attended trainings where racial discrimination was encouraged, going so far as giving advice on how to conceal discriminatory motivations from the court.9 Smith is not alone in his criticism of the Batson system for dealing with peremptory strikes.10

How We Got Here

Trial by jury dates back to the Greeks, Romans, Gauls, Normans, and Saxons and was well established by the writing of the Magna Carta.11 The American legal system, built on the English model, incorporated jury trials into its structure. In doing so, a lesser-known stowaway made the journey to the new world as well: peremptory strikes. These strikes allow a party to exclude a potential jury member without justification. The Supreme Court has defined peremptory strikes as “exercised without a reason stated, without inquiry and without being subject to the court’s control.”12 Though these challenges take slightly different forms, some version of the peremptory challenge has existed in almost every jury trial system throughout history.13

In the United States, juries are assembled during voir dire, the jury selection phase preceding a trial where the qualifications of prospective jury members are examined. During voir dire proceedings the parties have the opportunity to question prospective jurors and are provided two methods for removing jurors: for-cause removal and peremptory challenges.14 For-cause challenges require narrowly-specified, provable, and legally cognizable partiality often based on familial or social relationships to the parties, failure to meet statutory qualifications for jury duty, or other specific evidence of bias.15 These challenges are unlimited but apply only to those jurors demonstrating objective bias.16 In contrast, peremptory strikes require no justification,17 are limited in number,18 and are generally used to handle jurors demonstrating subjective or presumed bias.19

Though peremptory challenges are designed to require no explanation, that changed in 1986 with Batson v. Kentucky.20 Since this seminal case, peremptory challenges in their classical meaning have been effectively eliminated—no longer can a party strike a juror without providing a reason. In Batson, the defendant claimed his rights had been violated when peremptory strikes removed all four potential black jury members during voir dire, resulting in an all-white jury.21 The Court overruled precedent in finding peremptory strikes based on race unconstitutional.22 It also set up a three-part system to test future peremptory challenges for impermissible motives.23 First, a defendant must show that the circumstances surrounding the challenge in question create a prima facie case that the prosecutor impermissibly relied on race.24 Second, the burden shifts to the proponent of the challenge to provide a legitimate, race-neutral reason.25 Third, the trial court makes a determination regarding whether purposeful discrimination has been proven.26 Thus, post-Batson, traditional peremptory challenges that require no reason or explanation no longer exist. However, slightly modified peremptory challenges remain and continue to create questions about the racial composition of juries.

Where To Next?

On November 2, 2015, the Court heard argument in Foster v. Chatman to determine the fate of Timothy Foster, the black teenager convicted of murder by an all-white jury.27 While it may be somewhat surprising that the court granted certiorari for a case primarily raising factual issues, it is even more surprising that the respondent did not contend that there were race-neutral explanations for the peremptory strikes. Rather, the respondent claimed the prosecutor in the case was in fact explicitly considering race in attempting to place a single black person onto the jury.28 It seems unlikely that considering race in an effort to ensure a black jury member (and thereby, theoretically defeating a Batson challenge) is a strategy the conservative Justices would condone.29 It seems equally unlikely to win favor with the liberal members of the court.30 Thus, it appears the most likely outcome is a reversal of the Georgia Supreme Court’s ruling. But is that really the only reason the Court took this case?

In many ways, the violations in Foster’s case are egregious. Of equal concern, however, is the fact that there are likely many cases in which race was impermissibly used but in more subtle ways. The system established by Batson seems almost designed to fail:

The current framework makes it exceedingly difficult for judges to reject even the most spurious of peremptory strikes—a reality that is not lost on trial attorneys. Specifically, the Supreme Court has decreed that before a trial court can find a Batson violation it must determine that an attorney has (1) exercised a racially motivated peremptory challenge and (2) lied to the court in an effort to justify the strike. The trial court must find all of this based almost solely on the attorney's demeanor. Accordingly, trial courts rightly hesitate to make the damning findings Batson requires on such paltry evidence.31

Trial court judges are unlikely to be eager to make a formal decision that the attorney in front of him or her is a racist liar. The system is inherently flawed. Perhaps Foster v. Chatman is the case where the Supreme Court will finally put an end to this experiment, or at least come up with a new structure for peremptory challenges.

Abolishing peremptory challenges is not a new idea,32 nor are alternative approaches designed to fix some of the problems posed by peremptory challenges.33 Yet, the Batson test has been around for almost thirty years, and peremptory challenges have continued largely uninterrupted in the United States.34 Proponents of maintaining the current system contend that these challenges safeguard a criminal defendant’s Sixth Amendment right to an impartial jury,35 protect jurors and promote efficiency and integrity in voir dire proceedings,36 and allow litigants to choose their own jury in a way that fosters a belief that the jury has been fairly chosen.37 Those who argue for the abolishment of peremptory strikes would contest all three points.38

A bright line rule that would be easily administrable and would also maintain valuable aspects of peremptory challenges is a rule that eliminates only those challenges issued by prosecutors. If the main value in peremptory challenges lies with the potential to promote impartial juries,39 then it follows that peremptory challenges are most necessary for defendants.40 While legislators concerned about appearing tough on crime are unlikely to enact such reform, the Court likely does not have similar concerns. The Court’s concern is much simpler: the protection of Constitutional rights. Eliminating prosecutorial peremptory challenges is a straightforward bright-line rule that does just that by protecting the Sixth Amendment rights of the defendant and the Fourteenth Amendment rights of the potential jurors and the community at large.41

At the time of Batson, Justice Marshall called for an end to peremptory strikes altogether.42 In the intervening thirty years, not much progress has been made. Peremptory challenges are still being used to unconstitutionally manipulate juries based on race.43 The Supreme Court should not only reverse the Georgia Supreme Court in Foster,44 but should go further to eliminate racially motivated peremptory challenges altogether. At this point it is clear there is only one way to ensure that end—prosecutorial peremptory challenges should be held unconstitutional.