Justice Thomas needs to retire. He has truly shown his derriere in his latest dissent in Foster v. Chatham. The basic facts of the case are as follows:
- In 1987 a black man was convicted of raping and murdering a woman.
- In every trial the prosecution and defense have a small number of peremptory challenges; those challenges have the ability to block a potential juror from hearing the case for no particular reason.
- A prior US Supreme Court decision, Batson, held that you cannot make your peremptory challenges based just on race.
- Stephen Bright, Foster’s lawyer before the Supreme Court, was finally able to unearth the handwritten notes from the prosecution from the trial back in the 80’s showing what they were actually thinking.
- Each potential black juror was marked with a B and highlighted in Green. They were then ranked B1 and so on.
- The prosecutor’s investigator noted “If it comes down to having to pick one of the black jurors, this one might be ok.”
The law states that once the defense has made an initial showing that jurors are being struck just because they are black and may sympathize with a black defendant, the prosecution must show that there were other legitimate reasons.
The trial Court and the Georgia Supreme Court bought the prosecution’s false explanations about age and other benign reasons. Bright’s unearthing of the actual notes brought the truth to light.
This was a 7-1 decision with the opinion written by the Chief Justice and moderate conservative, John Roberts. It wasn’t even a close call. “The focus on race in the prosecutions file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”
Yet, Justice Thomas dissented. He stood alone in complaining that the Federal Courts should not preserve the Constitution when the State has plainly failed to do so. This is tantamount to allowing the father who beats his child to decide whether the punishment was excessive. Yes, there cannot be endless appeals for convicted criminals, but as the majority points out, Bright unearthed substantial new evidence that makes it obvious black jurors were struck for being black. It is that simple. If there is no new evidence, then there is no habeas appeal.
Justice Thomas is a black man from south Georgia. He better than most should know that there are degrees of prejudice and few will admit what is in their soul. Some of it is inherent in man and impossible to stamp out or govern. But when a man’s life is on the line in a death penalty murder case and there is plain evidence in writing that the prosecution kicked all black jurors off, he must end his stubborn insistence that justice can only be administered state by state.
It may well be that Foster murdered the victim. He does not go free, he gets a new trial with new, fairly-selected jurors. Had the conviction by a racially cleansed jury stood, it would have been a crime against the Constitution and all of us as Georgians. If he is guilty, he will be convicted again by an unbiased jury and justice will be served but the Constitution will remain as a bulwark against unfairness.
Read the decision and tell us what you think: http://www.supremecourt.gov/opinions/15pdf/14-8349_6k47.pdf