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On May 23, 2016, in a 7-1 decision, the United States Supreme Court reversed a Georgia man’s 1987 capital murder conviction on the basis that prosecutors purposefully excluded black prospective jurors from the jury.

The Supreme Court determined in Foster v. Chatman, No. 14-8349, Georgia prosecutors violated the defendant’s, Timothy Tyrone Foster, constitutional right to equal protection by purposefully discriminating against qualified prospective jurors on the basis of race.

Foster appealed to the United States Supreme Court after he discovered, through an open records request, Georgia prosecutors’ notes from jury selection from his initial trial in 1987. The notes contained evidence of racial discrimination, including the following:

  • Identification of prospective black jurors as B#1, B#2, B#3, etc;
  • Highlighting of the names of prospective black jurors in bright green. The document containing these names also had a legend, which confirmed the green highlighting was to identify black prospective jurors;
  • Affidavit from an investigator comparing black prospective jurors (i.e. if you select this black juror then you cannot select this black juror);
  • Research on the Church of Christ with a corresponding note, No Black Churches; and
  • The letter N for “no” next to the names of all black prospective jurors.

In the Supreme Court opinion, the Court described the excessive reference to race within the prosecutors’ notes arresting and concluded the prosecutors made a concerted effort to exclude all African Americans from serving on the jury.

The Supreme Court reversed Foster’s murder conviction and remanded the case for a decision consistent with the Supreme Court’s decision. Not only does this most recent Supreme Court decision create an avenue for Foster to have a new trial, this decision further clarifies existing precedence on the role of race in jury selection in the United States.

Jury Selection in Texas

The Foster appeal hinged on the assertion that Georgia prosecutors violated his constitutional rights by using preemptory strikes to exclude black prospective jurors from the jury on the basis of race. To appropriately understand the effect of racially motivated preemptory strikes, one must understand the purpose of juries.

The right to a trial by an impartial jury is established in the United States Constitution, Texas Constitution, and Texas Rules of Criminal Procedure.  In order for a jury to be considered impartial, the following conditions must exist:

  • The selection pool or the petit jury must be from a representative cross section of the community; and
  • There must be an assurance the jurors chosen are unbiased.

The representative cross section of the community condition applies only to the larger selection pool not the actual jury selected. This means the petit jury may have African American people, Caucasian people, Indian American people, women, men, working mothers, persons age 25-30, and persons age 60 and older, but the actual jury only consist of white males age 40 to 60.

The petit jury is narrowed down to the actual jury through for cause and preemptory challenges. The prosecution and defendant are given an unlimited cause challenges. Either party may exclude a prospective juror for the following reasons:

  • The juror is not a qualified voter;
  • The juror has been convicted of misdemeanor theft or a felony;
  • The juror is insane;
  • The juror has a health, mental, or is legally blind and the juror is rendered unfit for jury service;
  • The juror is a witness in this case;
  • The juror served on the grand jury which found the indictment;
  • The juror served on a petit jury in a former trial of the same case;
  • The juror has a bias or prejudice in favor or against the defendant;
  • Through hearsay the juror has determined the guilt or innocence of the defendant;
  • The juror cannot read or write;

If either party wishes to exclude a juror for any other reason than those listed above, the party must use a preemptory challenge. Unlike cause challenges, the numbers of preemptory challenges are limited. In a capital case like Foster, the defendant is entitled to 15 preemptory challenges.

The prosecution or defendant may use a preemptory challenge to exclude a prospective juror for any reason. However, a preemptory challenge cannot be used to exclude a juror based on race.

Batson Claims and Challenging Race Discrimination

The Court in Batson v. Kentucky, 479 U.S. 79 (1986) developed a three-step process to adjudicate claims of racial discrimination in the use of preemptory challenges.

  • First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race;
  • Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and
  • Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

On appeal to the Supreme Court, Foster asserted Georgia prosecutors exercised preemptory challenges on the basis of race and the discrimination was purposeful.

By identifying the black prospective jurors, placing those jurors on “No Lists”, and excluding black prospective jurors from the jury while allowing white prospective jurors with similar circumstances to serve was sufficient evidence that prosecutors made a concerted effort to exclude black jurors from the jury and violated Foster’s constitutional rights.


The Supreme Court’s decision in Foster is important, because the Court closely scrutinized the prosecution’s race neutral justification for excluding black jurors. In addition to analyzing the prosecution’s notes, the Court also considered the historical context Foster’s original trial.

Foster was convicted of capital murder in 1987; just months after the Batson decision was ordered. At the time of Foster’s conviction, race was widely considered during jury selection. This most recent decision clearly outlines the evidence, both direct and circumstantial, which may be used to support a Batson claim.

Price & Twine, PLLC ǀ Georgetown Criminal Defense Lawyer

Michael Price of Price & Twine, PLLC is a criminal defense lawyer located in Georgetown, Texas. With over 18 years of experience defending individuals facing criminal offenses, including DWI, domestic violence, drug crimes, and violent offenses, Michael Price is dedicated to providing the strongest possible defense on behalf of each client.

Price & Twine, PLLC proudly defends clients throughout Texas, including Georgetown, Round Rock, Cedar Park, Killeen, Temple, Leander, Taylor, Hutto, and nearby communities. Contact Price & Twine, PLLC at (512) 354-1880 for a confidential consultation.

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