Foster v. Chatman

Foster v. Chatman

578 U.S. ___ (2016)

Vote:   7 (Alito, Breyer, Ginsburg, Kagan, Kennedy, Roberts, Sotomayor)

            1 (Thomas)

Opinion of the Court: Roberts

Opinion Concurring in the Judgment: Alito

Dissenting Opinion: Thomas



Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the district attorney, Stephen Lanier, used the state’s peremptory challenges to strike all four black prospective jurors qualified to serve on the jury. Foster argued that Lanier’s use of those strikes was racially motivated, in violation of Batson v. Kentucky (1986). The trial court rejected that claim, and the Georgia Supreme Court affirmed.

Foster then renewed his Batson claim in a state habeas proceeding. While that proceeding was pending, Foster, through the Georgia Open Records Act, obtained from the state copies of the file the prosecution used during his trial. 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.

The state habeas court denied relief. It noted that Foster’s Batson claim had been adjudicated on direct appeal and now, in this renewed claim, Foster “fail[ed] to demonstrate purposeful discrimination.” After the Georgia Supreme Court declined to issue Foster the Certificate of Probable Cause necessary to file an appeal, he asked the Supreme Court to hear his case.


Chief Justice Roberts delivered the opinion of the Court.

The “Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Snyder v. Louisiana (2008). Our decision in Batson v. Kentucky provides a three-step process for determining when a strike is discriminatory:


“First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.”


Both parties agree that Foster has demonstrated a prima facie case, and that the prosecutors have offered race-neutral reasons for their strikes. We therefore address only Batson’s third step. That step turns on factual determinations, and, “in the absence of exceptional circumstances,” we defer to state court factual findings unless we conclude that they are clearly erroneous.

Before reviewing the factual record in this case, a brief word is in order regarding the contents of the prosecution’s file that Foster obtained through his Georgia Open Records Act requests. Pursuant to those requests, Foster received a “certif[ied] … true and correct copy of 103 pages of the State’s case file” from his 1987 trial …

The State concedes that the prosecutors themselves authored some documents … There are, however, genuine questions that remain about the provenance of other documents. Nothing in the record, for example, identifies the author of the notes that listed three black prospective jurors as “B#1,” “B#2,” and “B#3.” Such notes, then, are not necessarily attributable directly to the prosecutors themselves. The state habeas court was cognizant of those limitations, but nevertheless admitted the file into evidence, reserving “a determination as to what weight the Court is going to put on any of [them]” in light of the objections urged by the State.

We agree with that approach. Despite questions about the background of particular notes, we cannot accept the State’s invitation to blind ourselves to their existence. … At a minimum, we are comfortable that all documents in the file were authored by someone in the district attorney’s office. Any uncertainties concerning the documents are pertinent only as potential limits on their probative value.

Foster centers his Batson claim on the strikes of two black prospective jurors, Marilyn Garrett and Eddie Hood. We turn first to Marilyn Garrett. According to Lanier, on the morning that the State was to use its strikes he had not yet made up his mind to remove Garrett ….

Ultimately, Lanier did strike Garrett. In justifying that strike to the trial court, he articulated a laundry list of reasons. …

The trial court accepted Lanier’s justifications, concluding that “[i]n the totality of circumstances,” there was “no discriminatory intent, and that there existed reasonably clear, specific, and legitimate reasons” for the strike. On their face, Lanier’s justifications for the strike seem reasonable enough. Our independent examination of the record, however, reveals that much of the reasoning provided by Lanier has no grounding in fact ….

Lanier told the court, for example, that he struck Garrett because “the defense did not ask her questions about” pertinent trial issues such as her thoughts on “insanity” or “alcohol,” or “much questions on publicity.” But the trial transcripts reveal that the defense asked her several questions on all three topics. …

Still other explanations given by the prosecution, while not explicitly contradicted by the record, are difficult to credit because the State willingly accepted white jurors with the same traits that supposedly rendered Garrett an unattractive juror. Lanier told the trial court that he struck Garrett because she was divorced. But he declined to strike three out of the four prospective white jurors who were also divorced. Additionally, Lanier claimed that he struck Garrett because she was too young, and the “State was looking for older jurors that would not easily identify with the defendant.” Yet Garrett was 34, and the State declined to strike eight white prospective jurors under the age of 36 ….

In sum, in evaluating the strike of Garrett, we are not faced with a single isolated misrepresentation.

We turn next to the strike of Hood. According to Lanier, Hood “was exactly what [the State] was looking for in terms of age, between forty and fifty, good employment and married.” The prosecution nonetheless struck Hood, giving eight reasons for doing so [including that Hood … had a son who was the same age as the defendant and who had previously been convicted of a crime … An examination of the record, however, convinces us that many of these justifications cannot be credited …

Take Hood’s son. If Darrell Hood’s age was the issue, why did the State accept (white) juror Billy Graves, who had a 17-year-old son? And why did the State accept (white) juror Martha Duncan, even though she had a 20-year-old son?

The comparison between Hood and Graves is particularly salient. When the prosecution asked Hood if Foster’s age would be a factor for him in sentencing, he answered “None whatsoever.” Trial Transcript 280. Graves, on the other hand, answered the same question “probably so.” Yet the State struck Hood and accepted Graves.

The State responds that Duncan and Graves were not similar to Hood because Hood’s son had been convicted of theft, while Graves’s and Duncan’s sons had not. … Lanier had described Darrell Hood’s conviction to the trial court as being for “basically the same thing that this defendant is charged with… Nonsense.” Hood’s son had received a 12-month suspended sentence for stealing hubcaps from a car in a mall parking lot five years earlier. Foster was charged with capital murder of a 79-year-old widow after a brutal sexual assault. The “implausible” and “fantastic” assertion that the two had been charged with “basically the same thing” supports our conclusion that the focus on Hood’s son can only be regarded as pretextual.

As we explained in Miller-El v. Dretke, “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination.” With respect to both Garrett and Hood, such evidence is compelling. But that is not all. Considering all of the circumstantial evidence that “bear[s] upon the issue of racial animosity,” we are left with the firm conviction that the strikes of Garrett and Hood were “motivated in substantial part by discriminatory intent.” …

[We conclude that the] prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.

The order of the Georgia Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


Justice Thomas, dissenting.

The Court … errs by deciding that Foster’s Batson claim has arguable merit. Because the adjudication of his Batson claim is, at bottom, a credibility determination, we owe “great deference” to the state court’s initial finding that the prosecution’s race-neutral reasons for striking veniremen Eddie Hood and Marilyn Garrett were credible. …

Foster [now] has access to the prosecution’s file. By allowing Foster to relitigate his Batson claim by bringing this newly discovered evidence to the fore, the Court upends Batson’s deferential framework. Foster’s new evidence does not justify this Court’s reassessment of who was telling the truth nearly three decades removed from voir dire.

The new evidence sets the tone for the Court’s analysis, but a closer look reveals that it has limited probative value. For this reason, the Court’s conclusion that the prosecution violated Batson rests mostly on arguments at Foster’s disposal decades ago. The new evidence is no excuse for the Court’s reversal of the state court’s credibility determinations.

As even the Court admits, we do not know who wrote most of the notes that Foster now relies upon as proof of the prosecutors’ race-based motivations. We do know, however, that both prosecutors averred that they “did not make any of the highlighted marks on the jury venire list” and “did not instruct anyone to make the green highlighted marks.” In particular, prosecutor Stephen Lanier reaffirmed his earlier testimony, given during Foster’s hearing for a new trial, that he relied only on race-neutral factors in striking the jury ….

The notion that this “newly discovered evidence” could warrant relitigation of a Batson claim is flabbergasting. In Batson cases, the “decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” And because “[t]here will seldom be much evidence bearing on that issue,” “the best evidence often will be the demeanor of the attorney who exercises the challenge.” Time and again, we have said that the credibility of the attorney is best judged by the trial court and can be overturned only if it is clearly erroneous.

But the Court today invites state prisoners to go searching for new “evidence” by demanding the files of the prosecutors who long ago convicted them. If those prisoners succeed, then apparently this Court’s doors are open to conduct the credibility determination anew. Alas, “every end is instead a new beginning” for a majority of this Court. New evidence should not justify the relitigation of Batson claims.