[Deathpenalty] death penalty news----USA

[Rick Halperin]

Nov. 1



USA:

Racism Is Rampant In Jury Selection. The Supreme Court Can't Fix It.----The 
Constitution prohibits excluding jurors on the basis of race, but there isn't 
much the justices can do to remedy that.


Timothy Foster has spent almost 30 years on Georgia's death row. On Monday, his 
lawyer will appear before the Supreme Court to fight for his life.

That's because Foster v. Chatman, a high-profile case about racism in jury 
selection, is really not a case about racism in jury selection. It's a case 
about racism in the application of the death penalty.

Consider what Stephen Lanier, the prosecutor who tried Foster in 1987, told the 
all-white jury who heard the case. During the penalty phase of the trial, he 
said a death sentence was appropriate for Foster to send a message "to other 
people out there in the projects." Foster lived in government housing, and 
about 90 percent of his neighbors were black.

Or ponder a psychiatrist's testimony on Foster's behalf, who found he "was in 
the borderline range for intellectual disability" -- with an IQ range between 
58 and 80 his entire life. The jury rejected it and voted for death anyway.

Or the very length of time Foster has spent on death row, or the reality he is 
only one of the 56 % of those awaiting execution who are people of color, 
according to a recent NAACP Legal Defense Fund report.

There's a lot of things inherently suspect with the Foster case -- and the 
capital system in general -- and yet the Supreme Court on Monday will only be 
confronting the very limited issue of whether prosecutors improperly excluded 
on the basis of race all blacks who were perfectly capable of sitting in 
Foster's trial. This is a real problem that's still very much alive today.

Foster v. Chatman has been styled that way because that's how advocates chip 
away at the death penalty these days -- by showing how it's unconstitutionally 
stacked against some defendants and not others.

So far, the justices have heard or will hear a number of cases that attack the 
procedures states use in doling out death sentences, but none challenging the 
capital system itself. That case hasn't yet arrived, even though there's an 
open invitation to bring one to the table.

The Foster case presumably drew the court's attention because blatant examples 
of racial discrimination -- especially if a person's life is on the line -- 
tend to draw more scrutiny than subtler forms of bias in the administration of 
justice.

This one is the blatant kind. In 2006, Foster's lawyers got lucky when -- 
through an open-records request -- they got hold of the notes prosecutors made 
during jury selection in the case. To their surprise, they discovered that all 
the names of the potential jurors who were black were highlighted and marked 
with the letter B.

At the top of each juror list, a key indicated that green highlight meant the 
potential juror was black. Separate juror questionnaires had the word "black" 
circled. No black jurors sat in Foster's trial.

His lawyer before the Supreme Court, Stephen Bright, said in a brief filed with 
the court that this "evidence clearly establishes purposeful discrimination by 
the prosecution" -- particularly troubling if indeed the goal was to get the 
all-white jury to issue a death sentence and thus teach people "in the 
projects" a lesson.

If the justices side with Foster and rule that his trial violated the 
Constitution's promise of equal protection, then he'll likely get a new one and 
potentially skirt death that way. But can the Supreme Court do more and fix the 
law in order to keep this from happening ever again?

In court papers filed ahead of Monday's hearing, a group of former prosecutors 
urged the court to rule for Foster because "race discrimination persists in 
jury selection," and insisted that the court's prior ruling in Batson v. 
Kentucky remains "an important safeguard against" abuses in the jury system.

That case, decided one year before Foster was convicted, established that the 
Constitution prohibits lawyers from using so-called "peremptory strikes" to 
shut out potential jurors on account of their race -- the rationale being that 
no citizen can be denied an opportunity to serve on a jury.

The thing with peremptory strikes is that lawyers can use them to challenge 
potential jurors for almost any conceivable reason -- except a discriminatory 
reason, like race or gender. Since every lawyer wants to win a case, the only 
thing they have to do if the other side accuses them of discriminating against 
a juror is provide a "race-neutral" justification. And coming up with those 
justifications, it turns out, isn't really hard.

Over the years, both prosecutors and defense lawyers have gotten really good at 
excluding jurors by coming up with non-racial reasons on the fly: That juror 
looked funny. That lady in the back didn't seem really invested in the case. 
The gentleman with the glasses is too old.

In the Foster case, the prosecutor offered a litany of reasons to explain away 
his singling out of black members of the jury pool: The person's age. Their 
occupation. Church affiliation. Someone's appearance as "hostile." Whether they 
agreed with the death penalty. All of those, if believed by a judge, are 
perfectly permissible -- even if in the prosecutor's heart of hearts they're no 
more than bullshit.

But the other side is also prone to bullshit. Just like prosecutors have an 
interest in securing convictions by drawing a jury panel that's sympathetic to 
their case, defense lawyers too want jurors who will view their client 
favorably. And they may very well seek to exclude a white woman for the sheer 
reason that she's white, or fight to keep a black person on the panel because 
the accused is also black. Isn't that unconstitutional, too.

Though it's possible the Supreme Court will grasp the egregiousness of the 
Foster case and rule in his favor, it is far from clear if the justices will 
use his circumstances to fashion a practicable rule that would soften the edges 
of the problem nationwide.

Much like the death penalty, the use of race in jury selection seems like 
something the court can only chip away at -- not fully eradicate.

(source: Cristian Farias, Legal Affairs Reporter, Huffington Post)

********************

Presidential candidate Bush 'conflicted' about death penalty


Republican presidential candidate Jeb Bush said he is conflicted about the 
death penalty and wants to see reforms in how it is implemented.

Bush, in an interview taped for broadcast on Sunday on NBC's "Meet the Press," 
said executions can provide closure for families of murder victims but that 
other issues are involved.

"It's hard for me, as a human being, to sign the death warrant, to be honest 
with you," he said. "I'm informed by my faith in many things, and this is one 
of them. So I have to admit that I'm conflicted about this."

"But we should reform it. If it's to be used as a deterrent, it has to be 
reformed. It can't take 25 years (of legal appeals before an execution). That 
does no one any good. Neither the victims nor the state is solving this problem 
with that kind of tangled judicial process."

Florida executed 20 murderers while Bush was the state's governor from 1999 to 
January 2007, according to the database of the Death Penalty Information 
Center.

Republican candidates generally have supported the death penalty while 
Democratic presidential candidate Hillary Clinton has said it should be 
re-examined and her main challenger, Vermont Senator Bernie Sanders, has called 
for its abolition.

Bush's campaign has been troubled by lackluster debate performances, sagging 
poll numbers and recent cutbacks in staff and salaries of his campaign 
organization. He also has faced criticism from Republican rival candidate 
Donald Trump for being "low energy" and critics have questioned if he has the 
personality and resolve to carry a campaign through to the November 2016 
election.

Bush said on "Meet the Press" he did not know why pundits questioned his drive 
to be president but said he needed to improve his performance.

"Look, I know that I've got to get better at doing the debate," he said. "I'm a 
grinder. I mean, when I see that I'm not doing something well then I reset and 
I get better. And I'm going to be better."

(source: Reuters)