Racial discrimination in jury selection is a longstanding and iniquitous aspect of our so-called criminal justice system. An unfair process that happens daily in America behind courtroom doors is now in the spotlight as the Supreme Court prepares to hear a case that goes back to 1987.
Thirty years ago, Timothy Foster, a Black man, was charged with the murder of an elderly white woman, Queen Madge White, in her home in Rome, Ga. He was convicted and sentenced to death. In 2006, Foster’s lawyers obtained the prosecution’s open records indicating that African-Americans had been improperly excluded from being jurors.
If the court rules in his favor, Foster could win a new trial. Foster was convicted by an all-white jury and his case is typical of thousands that have occurred in this country. And this discrimination has continued despite the ruling in 1986 by the Supreme Court in which prosecutors are not allowed to dismiss jurors because of their race.
In the conviction of Foster, prosecutors reportedly used a failure to maintain eye contact and an age too close to the defendant’s as reasons to exclude Blacks from the jury.
A few of us are old enough to recall photos of the trial of the two white men charged with the murder of Emmett Till, the 14-year-old Black boy from Chicago, in 1955. The jury comprised 12 white men, which, in effect, meant the two white men were judged by their peers and in accordance with their constitutional rights. Foster was not given the same consideration.
Diversity is another condition that is often lacking in trials pertaining to Black Americans. This past summer in Charlotte, N.C., the local NAACP chapter was outraged when the jury was selected in the shooting death of Jonathan Ferrell, an unarmed Black man killed by a white police officer. The jury consisted of eight women and four men. Two women and three men were white, two women were Hispanic and two women and one man were Black. Corine Mack, president of the NAACP Charlotte branch, charged that the jury selection did not reflect the demographic of Mecklenburg County.
In this case, the prosecution is invoking a federal law that a juror cannot be selected because of his or her ethnicity. Thus you can see the complexity of the jury system and how the pendulum of justice swings in a relative way, though Foster’s case is far clearer because jurors were apparently removed because of their race.
Even the composition of the Supreme Court raises the issue of diversity, a court containing privileged white men—and to expect Justice Clarence Thomas to address this problem is a fruitless proposition.
Several months ago, we voiced our concern about the absence of Black judges. Amending that situation is only relatively easier than getting parity on juries. Clearly, we have to fight for fairness across the juridical board. We thought that the Bateson v. Kentucky ruling in 1986 had settled the issue of blocking jurors because of their race. But once again, with the Foster v. Chatman case, the problem of jury selection awaits a decision. There is no indication on the Supreme Court’s docket when the oral arguments will begin on the case.
No matter what happens in this hearing, we are naive to expect that unfair jury selection will end overnight. Each day we are confronted with another fissure in our criminal justice system and it seems Black Americans are always caught in that crack.