Marilyn Garrett fully understood why two white prosecutors in Georgia excluded her from the jury being empaneled to try a black teenager in 1987 for capital murder in the home-invasion killing of an elderly white widow. But it took almost 30 years for the judicial system to acknowledge the racial discrimination that was obvious to her at the time.
The prosecutors were blocking Garrett (now Whitehead) and other African Americans from serving on the jury, in blatant violation of a then-recent Supreme Court decision to limit racial discrimination in jury selection. The lawyers representing Timothy Foster cited the new decision, Batson v. Kentucky (1986), to the trial judge, but prosecutors Stephen Lanier and Douglas Pullen insisted they had legitimate reasons for using peremptory challenges to get rid of all the black jurors who survived initial screening in the jury selection process.
The judge accepted the prosecutors’ claims, and so too did every court to consider the issue until Foster had served on Georgia’s death row for nearly 30 years. Last week, however, the U.S. Supreme Court finally saw through what Chief Justice John G. Roberts Jr. bluntly called the prosecutors’ “shifting explanations” and “misrepresentations” about the reasons for striking blacks from the jury.
“I felt like they discriminated against me,” Whitehead remarked last year on the day the Supreme Court heard arguments in Foster’s case. “After that,” Whitehead told a reporter for the Atlanta Journal Constitution, “I felt like I never wanted to be on a jury again because of the way I was treated.”
Like so many Supreme Court decisions, Batson promises more than it delivers in actual practice as Foster’s case vividly illustrates. Prosecutors circumvent the decision by proffering ostensibly race-neutral reasons for keeping people of the wrong race off the jury most typically, African Americans summoned for the trial of a black defendant. Judges typically accept the explanations unless the prosecutor simply stretches credulity beyond the breaking point. Tellingly, the judge at Foster’s trial rejected the Batson claim at first without hearing from Lanier, who then asked to “perfect the record” by giving his supposed reasons.
Lanier, now a private attorney in Rome, Ga., and Pullen, who resigned from a judgeship in the midst of an investigation for misconduct, passed the credibility test back in Foster’s trial and again in regular appeals and post-conviction challenges. Two decades later, however, Foster’s new lawyers used Georgia’s freedom-of-information law in 2006 to obtain documents from the case file with damning and irrefutable evidence of what Roberts called the prosecutors’ “persistent focus” on race in the jury selection process.
The jury selection notes prepared by the DA office’s investigator Clayton Lundy identified African Americans in the jury pool by the initial “B” and listed Garrett, Eddie Hood, three other African Americans and one white prospective juror as “definite NO’s.” One of the African Americans was excused for cause, but the prosecutors used their peremptory challenges to get rid of Garrett, Hood, and the other two the only blacks in the pool of 42 qualified jurors.
Lanier offered a bunch of race-neutral reasons for excluding Garrett and Hood. At length, Roberts shows in the Supreme Court’s nearly unanimous opinion that Lanier’s justifications were simply false flatly contradicted by the record. Lanier said he excluded Garrett because she was divorced and, at age 34, too young. Yet Lanier accepted three white jurors who were divorced and two white jurors were younger, one of them age 21. Roberts stops just short of saying that Lanier lied. “Much” of Lanier’s reasoning, Roberts writes, had “no grounding in fact.”
Lanier objected to Hood because he had a son around the same age as Foster, but white jurors with sons the same age were accepted. Lanier also viewed Hood, a member of the Church of Christ, as likely to share that church’s supposed reservations about the death penalty. But the church actually had no formal position, and Hood had repeatedly said he could consider imposing the death penalty. Again, Roberts concludes that Lanier’s “true motivation” for excluding Hood was Hood’s race.
When the jury selection notes surfaced, Lanier and Pullen did their best to dismiss their significance: not our handwriting, they said. Whatever, Roberts said. The notes were written by someone in the prosecutor’s office, he concluded, and clearly used to guide Lanier’s use of peremptory challenges.
Court decisions about prosecutorial misconduct often omit the names of the errant prosecutors. Given the disputed factual circumstances, Roberts perhaps had no choice but to name names in this instance. Even so, the roles that the much younger Lanier and Pullen played in tainting a criminal trial appear to have drawn less attention in Georgia than they deserve. In an alternate legal system, bar disciplinary authorities would now take the Supreme Court decision as the basis for opening ethics investigations, even if belatedly.
Foster had confessed to the killing; his main defense was what is now called intellectual disability. It is open to question whether one or two black jurors would have changed either the verdict or sentence. But, as Roberts bluntly concluded, “Two peremptory strikes on the basis of race are two more than the Constitution allows.” The case now goes back to a Georgia court system that failed in its constitutional duty before, now with a chance to show a higher regard for racial justice than shown in the past.