On Tuesday, the Court will hear Hurst v. Florida, yet another challenge to Florida’s enthusiasm for the injection gurney. Even though the Supreme Court held 13 years ago that “aggravating factors” must be found by a jury, Florida’s Supreme Court validated a state system in which the judge, not the jury, finds the “aggravating factors”—and the jury’s verdict is, in fact, “merely advisory.” The “advisory” verdict also—unlike in the majority of states—need not be unanimous.
After Hurst, the Court in November will hear Foster v. Chatman, which tests the Court’s requirement that all juries—in capital and non-capital cases—be selected without racial discrimination. That rule was announced three decades ago, in a case called Batson v. Kentucky. Under Batson, no party can use race as a basis for “peremptory strikes”—decisions by one side or other to exclude a potential juror. Ordinarily a lawyer need give no reason for a “peremptory”—it can be based on a gut feeling or a dislike of the social characteristics of a member of the pool. If the other party points to a racial pattern of “peremptories,” however, a court is supposed to hold a hearing at which the side using the strikes must explain a “neutral” reason for the strike.
The scandal of Batson is that courts tolerate the flimsiest explanations for seemingly clear use of race by prosecutors. A minority juror may be too old, too young, over- or under-educated, a former crime victim, or a former criminal defendant; almost anything will do.
Foster, however, seems to involve as smoky a gun as will ever be found. Tyrone Foster, an African American, was convicted in 1987 of capital murder for killing Queen Madge White, a white 79-year-old, as part of a burglary in Rome, Georgia. The prosecution had used its strikes to eliminate all four black potential jurors; when challenged, the state’s lawyers offered neutral explanations, and a Georgia trial court accepted them. In closing, the prosecution argued that the jury should order Foster put to death in order to “deter other people out there in the projects.”
Seventeen years later, Foster’s lawyers won the right to inspect the prosecution’s notes—and what they found indicated that the “neutral” explanations were a sham. The word BLACK on each black juror’s form was circled; they were coded “B1,” “B2,” etc., and highlighted in green. One investigator wrote on the forms that “[i]f it comes down to having to pick one of the black jurors, Ms. Garrett, might be okay.”
In 2013, a Georgia trial court rejected the Batson claim. “[T]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination,” wrote the (elected) judge. That result shocks the conscience; true, the prosecution did not write on the forms “MAKE SURE TO EXCLUDE THESE JURORS BECAUSE THEY ARE B-L-A-C-K AND LET’S NOT WORRY ABOUT VIOLATING B-A-T-S-O-N,” but the notes show everything short of that.
Whatever the justices decide, the “neutral” explanations in Foster seem a bit like assurances from Oklahoma; desperate attempts to shore up an institution that is in collision with what Chief Justice Earl Warren once called “the evolving standards of decency that mark the progress of a maturing society.” Any criminal penalty that can’t be administered without the lies and incompetence that mark capital punishment today seems to me, well, cruel and unusual.