Why Justice Is So Rare

James Kwak
4 min readMay 23, 2016

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Today was a victory for justice. In Foster v. Chatman — a case brought by the Southern Center for Human Rights and argued by death penalty super-lawyer Stephen Bright — the Supreme Court overturned the death sentence imposed on Timothy Foster by an all-white jury in 1987. In that case, the prosecution made sure it had an all-white jury by eliminating (striking) all black candidates from the jury pool. In Batson v. Kentucky (1986), the Supreme Court ruled that it is unconstitutional to strike potential jurors on the basis of race, but the prosecutors’ own notes made clear that they knew what they were doing. Here are just a few examples, from the appendix. They pretty much speak for themselves.

It’s hard to read, but next to the green blotch in the picture above are the words “represents Blacks.”

In order to “avoid Batson claims,” the prosecutors came up with a long list of “race-neutral” reasons for striking black jurors, several of which contradicted each other. But the trial judge bought them, and Foster was sentenced to death. Only twenty-seven years later did the Supreme Court overturn that judgment, with Chief Justice Roberts not only concluding that at least two jurors were rejected because of race, but also calling out the prosecution for “the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file.”

But even if today is a victory for justice, the story of Tim Foster also explains why those victories are so rare.As Steve Bright said after the verdict was announced, “The practice of discriminating in striking juries continues in courtrooms across the country. Usually courts ignore patterns of race discrimination and accept false reasons for the strikes.” There are many reasons why this successful outcome is the exception, not the rule:

  1. Tim Foster was sentenced to death. People convicted by all-white juries in non-capital cases — and sentenced only to life in prison — are less likely to find good lawyers or have their cases heard by the Supreme Court.
  2. Because this was a post-conviction appeal, Tim Foster had no constitutional right to a lawyer. But he got not only a lawyer, but the best: the Southern Center for Human Rights and Steve Bright, who has argued and won multiple death penalty cases in the Supreme Court. (I am on the board of the Southern Center, which is a truly fantastic organization.)
  3. Foster’s attorneys got the prosecution’s notes, which is where they found what Bright called “an arsenal of smoking guns.” As he said today, in a classic understatement, “Usually that does not happen.”
  4. Foster’s trial was in 1987, only one year after Batson. Since then, prosecutors have gotten much better at coming up with plausible race-neutral reasons for striking jurors, which is why relatively few cases are overturned for Batson violations.
  5. The prosecutors were pretty ham-handed, both in their handling of the juror selection process and in their attempted rationalizations for their strikes. As Justice Kagan said in oral argument, “Isn’t this as clear a Batson violation as a court is ever going to see?” More sophisticated prosecutors, and Foster loses his case.
  6. The Supreme Court agreed to hear Foster’s case. You may think that the evidence of racial discrimination is obvious. I do. So does John Roberts. But a Georgia trial court rejected Foster’s appeal, even after his attorneys presented the evidence from the prosecutor’s notes. And the Georgia Supreme Court refused to hear the appeal. That’s two courts, staffed by eminent judges, who looked at the evidence and said, “Whatever.”
  7. The Supreme Court agreed to decide the case on the merits. Just three days before the oral argument, the court asked both sides to address a complicated procedural question involving which ruling Foster was appealing — the trial court’s or the state supreme court’s — and whether the case dealt with state law or federal law issues. In his dissent, Justice Thomas argued that Foster had lost in the state courts because his claims were procedurally barred. In that case, there is no federal issue and nothing for the Supreme Court to review, so he loses — despite the overwhelming evidence of racial discrimination.

If any of those seven things didn’t happen, Tim Foster would still be on death row. The stars aligned for Tim Foster. They don’t for most people. For many people in America, justice is the exception, not the rule. That’s not right.

James Kwak is an associate professor at the University of Connecticut School of Law, the vice chair of the Southern Center for Human Rights, a co-author of 13 Bankers and White House Burning, and a co-founder of Guidewire Software. Find more at Twitter, Facebook, Medium, The Baseline Scenario, The Atlantic, or jameskwak.net.

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James Kwak

Books: The Fear of Too Much Justice, Take Back Our Party, Economism, White House Burning, 13 Bankers. Former professor. Co-founder, Guidewire Software. Cellist.