Foster v. Chatman, 578 U.S. ___ (2016)




NOTE:?Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U.?S. 321 .



certiorari to the supreme court of georgia

No. 14?8349.?Argued November 2, 2015?Decided May 23, 2016


Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury. Foster argued that the State?s use of those strikes was racially motivated, in violation of Batson v. Kentucky, 476 U.?S. 79 . 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 used by the prosecution 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. Because Foster?s renewed Batson claim ?fail[ed] to demonstrate purposeful discrimination,? the court concluded that he had failed to show ?any change in the facts sufficient to overcome? the state law doctrine of res judicata. The Georgia Supreme Court denied Foster the Certificate of Probable Cause necessary to file an appeal.


1.?This Court has jurisdiction to review the judgment of the Georgia Supreme Court denying Foster a Certificate of Probable Cause on his Batson claim. Although this Court cannot ascertain the grounds for that unelaborated judgment, there is no indication that it rested on a state law ground that is both ?independent of the merits? of Foster?s Batson claim and an ?adequate basis? for that decision, so as to preclude jurisdiction. Harris v. Reed, 489 U.?S. 255 . The state habeas court held that the state law doctrine of res judicata barred Foster?s claim only by examining the entire record and determining that Foster had not alleged a change in facts sufficient to overcome the bar. Based on this lengthy ?Batson analysis,? the state habeas court concluded that Foster?s renewed Batson claim was ?without merit.? Because the state court?s application of res judicata thus ?depend[ed] on a federal constitutional ruling, [that] prong of the court?s holding is not independent of federal law, and [this Court?s] jurisdiction is not precluded.? Ake v. Oklahoma, 470 U.?S. 68 ; see alsoThree Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.?C., 467 U.?S. 138 . Pp.?6?9.

2.?The decision that Foster failed to show purposeful discrimination was clearly erroneous. Pp.?9?25.

(a)?Batson provides a three-step process for adjudicating claims such as Foster?s. ?First, a defendant must make a prima facie showing that a preemptory 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.? Snyder v. Louisiana, 552 U.?S. 472 (internal quotation marks and brackets omitted). Only Batson?s third step is at issue here. That step turns on factual findings made by the lower courts, and this Court will defer to those findings unless they are clearly erroneous. See ibid. Pp.?9?10.

(b)?Foster established purposeful discrimination in the State?s strikes of two black prospective jurors: Marilyn Garrett and Eddie Hood. Though the trial court accepted the prosecution?s justifications for both strikes, the record belies much of the prosecution?s reasoning. Pp.?10?22.

(i)?The prosecution explained to the trial court that it made a last-minute decision to strike Garrett only after another juror, Shirley Powell, was excused for cause on the morning that the strikes were exercised. That explanation is flatly contradicted by evidence showing that Garrett?s name appeared on the prosecution?s list of ?[D]efinite NO?s??the six prospective jurors whom the prosecution was intent on striking from the outset. The record also refutes several of the reasons the prosecution gave for striking Garrett instead of Arlene Blackmon, a white prospective juror. For example, while the State told the trial court that it struck Garrett because the defense did not ask her for her thoughts about such pertinent trial issues as insanity, alcohol, or pre-trial publicity, the record reveals that the defense asked Garrett multiple questions on each topic. And though the State gave other facially reasonable justifications for striking Garrett, those are difficult to credit because of the State?s willingness to accept white jurors with the same characteristics. For example,the prosecution claims that it struck Garrett because she was divorced and, at age 34, too young, but three out of four divorced white prospective jurors and eight white prospective jurors under age 36 were allowed to serve. Pp.?11?17.

(ii)?With regard to prospective juror Hood, the record similarly undermines the justifications proffered by the State to the trial court for the strike. For example, the prosecution alleged in response to Foster?s pretrial Batson challenge that its only concern with Hood was the fact that his son was the same age as the defendant. But then, at a subsequent hearing, the State told the court that its chief concern was with Hood?s membership in the Church of Christ. In the end, neither of those reasons for striking Hood withstands scrutiny. As to the age of Hood?s son, the prosecution allowed white prospective jurors with sons of similar age to serve, including one who, in contrast to Hood, equivocated when asked whether Foster?s age would be a factor at sentencing. And as to Hood?s religion, the prosecution erroneously claimed that three white Church of Christ members were excused for cause because of their opposition to the death penalty, when in fact the record shows that those jurors were excused for reasons unrelated to their views on the death penalty. Moreover, a document acquired from the State?s file contains a handwritten note stating, ?NO. NO Black Church,? while asserting that the Church of Christ does not take a stand on the death penalty. Other justifications for striking Hood fail to withstand scrutiny because no concerns were expressed with regard to similar white prospective jurors. Pp.?17?23.

(c)?Evidence that a prosecutor?s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination. Miller-El v. Dretke, 545 U.?S. 231 . Such evidence is compelling with respect to Garrett and Hood and, along with the prosecution?s shifting explanations, misrepresentations of the record, and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was ?motivated in substantial part by discriminatory intent.? Snyder, 552 U.?S., at 485. P.?23.

(d)?Because Batson was decided only months before Foster?s trial, the State asserts that the focus on black prospective jurors in the prosecution?s file was an effort to develop and maintain a detailed account should the prosecution need a defense against any suggestion that its reasons were pretextual. That argument, having never before been raised in the 30 years since Foster?s trial, ?reeks of afterthought.? Miller-El, 545 U.?S., at 246. And the focus on race in the prosecution?s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. Pp.?23?25.

Reversed and remanded.

Roberts, C.?J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment. Thomas, J., filed a dissenting opinion.