Foster vs. Humphries: More Supreme Mischief?

The U.S. Supreme Court has taken the case of Foster vs. Humphries, and it is one of the most important civil cases they have to decide in a long time. In 1987, a black man named Timothy Foster was convicted in Georgia of killing a white woman by an all-white jury in a jurisdiction where 40% of residents were African-American.

All four of the African-American potential jurors were excused by the prosecutors. Later investigation of the prosecutor’s notes proved that he had marked every African-American in the entire pool with a green highlighter before the selection, and showed other evidence that his intention from the start was to sit an all-white jury.  It doesn’t mean that Mr. Foster was wrongly convicted, but it does suggest that he did not get a fair trial.

In 1986, the U.S. Supreme Court decided in Batson vs. Kentucky, that the systematic exclusion of minority jurors violated the rights of minority suspects to a fair trial by denying them a representative jury of their peers. Prosecutors around the country then began to use a loophole to justify excluding minority jurors by citing any reason, however absurd, as long as it did not mention the word “race.” It leaves the decision ultimately to the judge, who may or may not care about anything.

In my experience, even in civil trials, lawyers representing insurance companies systematically exclude minority jurors because they believe that minorities are more sensitive to victims. I once had a defense attorney who used every peremptory strike on African-Americans. When challenged about his obvious tactic, he told the judge that his use of the last peremptory strike had nothing to do with race … he “didn’t like the way one juror was looking at him.” He felt the way another African-American juror was sitting suggested bias as some of the reason for striking the jurors. The judge allowed the strikes.

Batson vs. Kentucky, as toothless as it is, provided a chance for minority suspects to get a representative jury and a fair trial. Some observers of the SCOTUS believe that the radicals on the bench will use the case not to expand the guarantees of a fair trial by a jury of peers, but rather use the case to further restrict the right of lawyers to conduct voir dire. In other words, the fear is that the SCOTUS will eliminate any ability of the attorneys to question potential jurors about biases and leave the entire jury selection process to a judge, sometimes a biased judge, with no recourse. If that happens, then your expectations of a fair trial will be reduced to a slim hope.

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