A procedural issue may allow the Supreme Court to avoid confronting an egregious instance of racism in a death penalty case.<\/p>\n
Last November, the Court heard oral arguments<\/a> in Foster v. Chatman<\/a><\/em>. The question in Foster <\/em>is whether racial bias motivated prosecutors\u2019 peremptory strikes, violating Batson<\/em>. According to Foster\u2019s lawyers, their evidence constituted \u201can arsenal of smoking guns.\u201d\u00a0They revealed, for example, prosecutors\u2019 notes ranking the black potential jurors and a statement about who to seat, \u201cif it comes down to having to pick one of the black jurors.\u201d\u00a0When challenged, the prosecution offered a laundry list of inconsistent and even incorrect reasons for striking all of the potential black jurors.\u00a0Most of the press coverage agreed with this blog<\/a> that Foster\u2019s evidence was \u201cextraordinary.\u201d Many were hopeful the Court would rule for Foster, reinforcing its commitment to rooting out racism in the criminal justice system.<\/p>\n But, on the eve of oral arguments, the Court took the highly unusual<\/a> step of asking the lawyers to prepare to argue a never-before-raised procedural issue. The justices wondered which lower court decision – the Georgia Supreme Court’s or the Georgia habeas corpus court’s – to review and whether either lower court had decided the case on the merits. These unanticipated oddities could foreclose a ruling on the Batson <\/em>claim.<\/p>\n The questioning on the procedural issue was both confounding and dry. Justice Sotomayor pleaded at one point, \u201cI\u2019m sorry. I\u2019m so confused I can\u2019t even.\u201d<\/p>\n The questions by some conservative justices indicated a potential eagerness to make the procedural issue definitive, thus avoiding a ruling on the Batson <\/em>claim. Stephen B. Bright, the defendant\u2019s lawyer, was questioned for nearly half of his time about res judicata and writs of certiorari. Eventually, Justices Ginsburg and Sotomayor attempted to shut down questions by Justices Alito and Kennedy, and the late Justice Scalia. The Chief Justice then allowed Bright to discuss his evidence of racism. Roberts did not, as he often does when arguments take an unexpected turn, give the parties extra time.<\/p>\n Questions for Georgia\u2019s lawyer, Beth Burton, indicated that there might be hope for a ruling on the Batson <\/em>claim based on an argument, advanced primarily by Justices Sotomayor and Breyer, that the Georgia Supreme Court\u2019s ruling was on the merits.\u00a0There might be hope for a ruling on the merits in a later term if the Court revisits the case after certifying a question to the state court about the procedural issue.<\/p>\n Ultimately, failing to rule on Foster\u2019s Batson<\/em> claim would be a huge missed opportunity. Racism in jury selection is unacceptable yet rampant<\/a>.\u00a0Foster\u2019s evidence is blatant. The state court\u2019s failure to recognize the discrimination is disturbing. The Court should do everything it can to correct the injustice and spare Foster the death penalty now.<\/p>\n