Timothy Foster, who is black, was convicted of murder and sentenced to death by an all-white jury. Long after his conviction, his attorneys obtained documents from the prosecutors’ files showing their heavy reliance on race in deciding which jurors to strike. Seven of the eight justices now side with Foster and reverse the state courts’ rejection of his habeas claim under Batson v. Kentucky, 476 U.S. 79 (1986).
Before getting to the merits, the court decides whether it may consider them. At issue is the rule that even where a state court’s judgment implicates a federal claim, the Court lacks jurisdiction if the judgment also rests on an “independent” state law ground that is “adequate” to uphold it. Harris v. Reed, 489 U. S. 255, 260 (1989). The last state court to provide a reasoned decision denying Foster’s claim had said that it was doing so on the basis of res judicata–that he had already litigated and lost his Batson claim in his direct appeal. However, that court’s discussion suggests it would not have applied res judicata had it concluded that Foster’s newly presented prosecution documents made out a valid Batson claim, so the Court concludes that the federal issue underlies the state res judicata ground, rather than being independent of it. (Slip op. at 8-9). So, to the documents it turns.
And those documents are something! From the Court’s syllabus:
Among other documents, the file contained (1) copies of the jury venire list on which the names of each black prospective juror were highlighted in bright green, with a legend indicating that the highlighting “represents Blacks”; (2) a draft affidavit from an investigator comparing black prospective jurors and concluding, “If it comes down to having to pick one of the black jurors, [this one] might be okay”; (3) notes identifying black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) notes with “N” (for “no”) appearing next to the names of all black prospective jurors; (5) a list titled “[D]efinite NO’s” containing six names, including the names of all of the qualified black prospective jurors; (6) a document with notes on the Church of Christ that was annotated “NO. No Black Church”; and (7) the questionnaires filled out by five prospective black jurors, on which each juror’s response indicating his or her race had been circled.
(Slip op. at 1). In the face of these papers, we have the prosecutors’ testimony in the habeas proceedings, distancing themselves from the items in their files and offering various purported race-neutral reasons for their strikes. The Court is not impressed. It notes “the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file,” and concludes that two of the state’s strikes were racially motivated. (Slip op. at 23).
Justice Alito concurs, agreeing that a Batson violation has been established but arguing that Georgia’s res judicata doctrine is still in play and may ultimately deny Foster relief. Justice Thomas dissents, arguing both that the state court’s decision rests on independent and adequate state-law grounds and that the high Court should be more deferential to the state court’s evaluation of the prosecutors’ credibility.
The fact-bound nature of the Court’s reasoning may not add much to the preexisting Batson legal analysis. Perhaps from a defense perspective it serves as a salutary example of a court refusing to accept a prosecutor’s ludicrous “race-neutral” account of a plainly race-based jury selection process. Then again, it’s hard to imagine that many prosecutors, after 30 years of Batson, are going to turn over such a beautifully gift-wrapped evidentiary bonanza. Or is it?