Jenner & Block

Firm Team Files Amicus Brief in US Supreme Court Death Penalty Case

A Jenner & Block team has filed an amicus brief on behalf of eight former federal , state and local prosecutors in an appeal of a capital case that will be heard by the US Supreme Court during its October 2015 term.  At issue in Foster v. Chatman is whether Georgia courts erred in failing to recognize race discrimination in the use of strikes during jury selection in the 1987 trial of an 18-year-old black man accused of murdering a white woman. 

At Timothy Foster’s trial, there were 42 qualified prospective jurors, five of whom were black.  After one of the black prospective jurors was excused for cause, the prosecution removed all four remaining black prospective jurors by peremptory strikes.  When the strikes were challenged by defense attorneys as violating the Supreme Court’s 1986 ruling in Batson v. Kentucky, which prohibited the purposeful exclusion of prospective jurors on the basis of race, the prosecution offered purportedly “race-neutral” reasons.

The trial court overruled the defense’s Batson objections and the all-white jury that was impaneled convicted Mr. Foster of the crime and sentenced him to death.  For almost 20 years after the trial, the prosecutors refused to turn over their jury selection notes, despite repeated requests from Mr. Foster’s attorneys.  Finally, in 2006, through a request pursuant to Georgia’s Open Records Act, Mr. Foster gained access to the notes. 

The notes revealed that the prosecution had (1) marked with green highlighter the name of each black prospective juror; (2) marked their names with a “B” on four jury lists; (3) circled the word “BLACK” on the questionnaires of five black prospective jurors; (4) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; and (5) ranked the black prospective jurors against each other if “it comes down to having to pick one of the black jurors.” 

Arguing that these notes demonstrate overwhelming evidence of purposeful racial discrimination; that many of the “race-neutral” reasons given by the prosecution for each strike were inaccurate, inconsistent with other reasons, or applied with equal or greater force to white jurors who were not struck; and that the prosecutor’s reasons had no “basis in accepted trial strategy,” the amicus brief urges the Court to determine that “[t]he evidence in [Timothy Foster’s] case conclusively shows a Batson violation” and reverse the Georgia Supreme Court’s denial of his appeal for habeas relief.  In support of this argument, the brief presents substantial evidence that race discrimination continues to be a problem in jury selection and goes against prosecutorial best practices. 

The firm’s team on the amicus brief is led by Partner Paul M. Smith and includes Partner Michael B. DeSanctis and Associates Emily A. Bruemmer and Manuel C. Possolo.  Summer Associate Kathryn L. Wynbrandt also contributed to the brief.