Why Justice Is So Rare

By James Kwak

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.

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

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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.


24 thoughts on “Why Justice Is So Rare

  1. Alright, who’s next to step up to the plate? No hitter, bottom of the ninth, two outs. Take ur pick, i’ll tie one hand behind my back, stand on one foot, even blindfolded.

  2. Well Ball, lives may seem to be held in the balance, but once amusement turns to citizen tragedy, citizens turn about is fair play. This gvt has had it’s citizens on the path to suicide for far too long, so should the citizens bring a case against their gvt on these grounds, their would be quite a few gvt employees headed for a jail cell now having been repeat offenders. Now I have yet to examine the patient closely, but it looks good as of this moment. And what is good for skunk, will be bad for the prosecutors office, and the probation officers office, and the head doctors office, and just about anyone who doesn’t like someone failing a drug test for all the right reasons.
    You’ve heard of Reaganomics trickle down economics, this would be called skunks trickle up justice, starting at the local court house, and anyone having a problem there(and i’m certain we can come up with quite a few above them), included in their sentencing. Plus while we are at it we can include a case against the probate court and prejudicial administration of it, and the head doctors needing to medicate anyone who comes through his door just for being there (cruel and unusual punishment being the charge here).
    And why not throw in some drug tests for Bill and Hillary while we are at it, before you know it, most anyone involved in gvt could fall under some charge and now be repeat offenders after having already lost one major case and simply falling back on denial to continue the crime. Should the case look good, I would personally be about 2 seconds from prosecuting the case myself, and happy to do it I might add. So once the lives of citizens are at stake, this under the covers surveillance state will be blue in the face with envy. I might even have to talk to the Donald about an earlier than scheduled gvt default, cause not until the debt hangover is cured, can the healing begin for the middle class.
    Are we having fun yet??

  3. SCOTUS vote was 7-1. The lone dissenter was none other than Clarence Thomas. Self-loathing fool that he is.

  4. “Today was a victory for justice.” REALLY?! My understanding is still with the silly notion that used to prevail,…that justice delayed was justice denied. This is pure politics. It takes a safely secured Yale mentality to size this up as a career benchmark precedent establishing a peer reviewed contest of juristic reasoning as a new institutional correction from a context of constitutional perversion. Social justice is not just corrupted by adversarial blindness, prosecutors enact vengeance for popular affect and to advance their political status. Manipulating the system “is” the system. This is no victory for justice, it is merely a symptom of a generation covering its tracks. It should be an indictment of the justice system and the practice of marketing reputations.

  5. If we keep going at this rate we may catch up to black voting denials by the year 2020. What a wonder 20/20 hindsight really creates!

  6. Recommended: 4th edition
    African Americans and the American Political System.
    Lucius J. Barker
    Mack H. Jones
    Katherine Tate
    Prentice Hall 1976
    ( a great start)

  7. In Your previous post evaluating “The Moral Narratives of Economists”
    by Anthony Randazzo and Jonathan Haidt the ambiguous standards of morals was tested and correlated for influencing and supporting bias in policy outcome among economists.
    One can only wonder how the same survey would turn out for the justice system? Ultimately the test would not be a correlation but the very nature of hypocritical social activity and the intrinsic soul-searching for a true definition of morality and its ethical derivatives in active duty and the pretext of service.

  8. African-American Social Workers and Social Policy Jul 10, 2003
    by Tricia B. Bent-Goodley
    (from the editorial review; Amazon):
    “Critical analyses of policies that significantly affect African-American families and communities!
    African-American Social Workers and Social Policy is the first book of its kind to combine the voices of African-American social work professionals on social policy in one volume. You’ll learn about the impact of health, child welfare, and aging, the implications of welfare reform, and the harsh statistics about race and imprisonment from respected practitioners in the field. Each chapter ends with recommendations for policy advocacy, giving you the tools you need to help reform the system.”

  9. Why Justice is so Rare:
    “The students at Yale came from all different backgrounds and all parts of the country. Within months, I knew many of them.”
    — From A Charge To Keep, by George W. Bush, published November 1999.

  10. Rights Advocates Raise Alarm Over Voter Suppression
    Written by Andrew Kreig

    “The nation faces an unprecedented threat to voter turnout in this fall’s elections according to civil rights advocates speaking at a National Press Club News Conference May 13 in Washington, DC.

    “This is the first presidential election cycle to be conducted without the full protection of the Voting Rights Act of 1965,” said Kristen Clarke, president of the Lawyers Committee for Civil Rights Under Law. “The heart of it [the law] is preclearance for voting rights changes in states with a long history of voter suppression.”

    Rights Advocates Raise Alarm Over Voter Suppression
    Written by Andrew Kreig

    [At issue is not just representation on a jury of peers, but the very capacity ot participate in our democracy}
    “The stakes are high said Leadership Conference on Civil Rights President/CEO Wade Henderson. “In the United States, voting is the language of democracy,” he said. “If you don’t vote you don’t count.”

    ““Here we are today in the era of the new ‘Jim Crow’ aimed at minorities, the disabled and the elderly,” said Dimondstein of the postal workers union. Such laws blocked voting and other civil rights of blacks primarily in the South until the 1960s civil rights era.”
    read all: http://www.justice-integrity.org/faq/1036-rights-advocates-raise-alarm-at-press-club-over-voter-suppression
    “Injustice denials ” (to twist a phrase):
    posted at the Justice and Integrity Project by Andrew Kreig;
    “Please ask President Obama to pardon Abraham Bolden, the first African American to serve on the White House detail guarding a president. Now 80, he was framed on corruption charges as he tried to warn the Warren Commission about security threats to President Kennedy, who had invited him to break the color barrier on the White House staff. Details of the injustice are in many places, including well-regarded historical books, his own 2008 memoir, The Echo from Dealey Plaza, and JIP coverage, which includes an update on his exemplary life since serving his harsh, unjustified five-year sentence under horrible conditions.

    Emails on his behalf addressed to President Obama can be brief, and can be coordinated for delivery via the University Justice Coalition.”

  11. Supreme Court Decision: Shelby County v. Holder
    133 S.Ct. 2612 (2013)
    Eric H. HOLDER, Jr., Attorney General, et al.
    No. 12-96.
    Supreme Court of United States.
    Argued February 27, 2013.
    Decided June 25, 2013.
    {From Andrew Kreig: Justice Integrity Project}
    “The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting John Roberts— a drastic departure from basic principles of federalism. And § 4 of the Act applied that requirement only to some States — an equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years. See Voting Rights Act of 1965.”

    “Over Voter Suppression
    Written by Andrew Kreig
    Published on May 13, 2016

    Supreme Court Decision: Shelby County v. Holder

    133 S.Ct. 2612 (2013)
    Eric H. HOLDER, Jr., Attorney General, et al.
    No. 12-96.

    Supreme Court of United States.
    Argued February 27, 2013.
    Decided June 25, 2013.

    Chief Justice ROBERTS delivered the opinion of the Court

    At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs.”

    Wikipedia, Shelby County v. Holder, 570 U.S. ___ (2013), is a landmark United States Supreme Court case regarding the constitutionality of two provisions of the Voting Rights Act of 1965: Section 5, which requires certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices; and Section 4(b), which contains the coverage formula that determines which jurisdictions are subjected to preclearance based on their histories of discrimination in voting.

    On June 25, 2013, the Court ruled by a 5-to-4 vote that Section 4(b) is unconstitutional because the coverage formula is based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states. The Court did not strike down Section 5, but without Section 4(b), no jurisdiction will be subject to Section 5 preclearance unless Congress enacts a new coverage formula.”
    (See the entire posting)
    Written by Andrew Kreig
    Published on May 13, 2016
    Clearly we do not have to go back to 1987 to find fault with the systemic exclusion of American people on the basis of racial bias and to rig the system for continuous class supremacy interests.

  12. Bruce quoted,

    “The stakes are high said Leadership Conference on Civil Rights President/CEO Wade Henderson. “In the United States, voting is the language of democracy,” he said. “If you don’t vote you don’t count.”

    I take the opposite view, if I don’t vote, I don’t have to agree with the legislation passed by lawmakers, if I do vote, I do have to agree with the legislation passed by lawmakers, I mean I voted for them.

    Now we could chase our tails like dogs on the run and play bait and switch all day long, or do it like they show in the movies. I prefer the latter. Either way the clock is a ticking and the options are a slimmin, the result is always the same at the end, I prefer to be nearly alone at the end, nearly, not completely. A creek, and a paddle might do towards the end.

  13. The Republicans made a “no vote” sound plausible in the Southwest area under the strategic consideration that it would potentially cut Democratic votes and not Republican votes since they were addressing largely the to Mexican voters to demoralize them. The notion was that by not voting it was a default equivalent to a parliamentary no-confidence motion. There is some indication that a similar scheme could be ripening in this election (convincing people that neither candidate deserves a vote). I not a political scientist, but I have heard time and again that the lack of voter turn out almost always favors the Republicans. There is a NTNC (not Trump / Not Clinton) counter-campaign going on, and no third party candidates from either side as yet. It would be quite interesting if we ended up with 4 candidates all running on different party lines (one from Democrats and one from Republicans). But if you are interested in keeping Casino Trump from gambling with our Nation, hold your nose and vote for Hillary just to keep things until we get through another 4 years of Hickery Dickery Dok!
    There is NO SUCH THING as a NO Vote in the USA> period!

  14. So how did passing Citizens United help the racial bias situation (if there is one today, it appears to be politically correct to be against the “white”)…?

    Obambi made a deal with the puppet masters that he would NOT allow any legal action to be taken against the previous administration for crimes against humanity – that is how he secured the Oval Office for himself. My how quickly is profane history re-written these days on an internet that does NOT provide a search based on date/time…!!

    Agree with Woych – justice delayed is justice denied….

    Meanwhile, the “privatization” of justice is today’s reality:


    The current “government” exists ONLY to put the hurt on people, supporting their lords and masters – the Cannibal Capitalists….

    It’s the way they laugh out in their public spaces – elite clubs and restaurants – at how their blood soaked loot bought them the “justice” they sought – that the ONLY group of people not allowed to lobby or have collective bargaining power is “LABOR”.

    ahahaha – good one….money can’t buy love….

    Indeed, their tragic mistake is that they fancy themselves to be deep thinkers and leaders of morality and ethics….

    That’s when the “working class” pub erupts into belly-laughter….

  15. Yes Bruce, yet another flaw in the constitution is the 1% rule, which states that if the voting public were so dismayed at the choice of candidates and only the 1% voted, they could still vote themselves in and legislate their common crony points of view. Now this is strictly theoretical because there are always plenty of sheep willing to believe that voting still counts with this country. But none the less there is no SET limit as to the percentage which MUST vote in order to retain a reasonable means to an end, of the constitution. Which by the way has already been raped six ways to Sunday with little regards to a competent citizenry or electorate.

  16. The LEGAL document establishing the USA is the Declaration of Independence.

    The Constitution is HOW they went about, in their day and time, establishing a government OTHER than the one they were free-ing themselves from which was a psychotic Monarch.

    Having a bunch of Nihilists, Hedonists and Anarchists – who just took out any security anywhere on the planet for any individual to any rights of possession of homes, factories, “government” functions in the commons – interpret the “Constitution” as a FLAWED document is within their “rights” to do. Fortunately, no one is listening.to them.

    The LEGAL document is the Declaration of Independence, you nimrods.

    The Eternal Truth holds – the self-evident TRUTH.

  17. You left out one key aspect of Foster’s case. He raped and killed a 79 year old woman. Its great that 27 years of legal wrangling produced “justice” but Queen Madge May is still dead.

  18. The D of I is equally flawed on a universal basis, on a planetary one, not as much. People are simply NOT created equal, it’s not true. So false premise always leads to a false conclusion, go figure.

  19. “….that all men are CREATED equal….”

    Skunk gets an “F” for reading comprehension…

    Scientifically and philosophically, the TRUTH of being “created equal” was settled in the 1970s in USA – every human being is unique. Unique in all CREATION and unique into eternity and beyond.

    Heck, it is the internet, throwing pearls to swine is not a total waste – a pearl catcher can breeze through….

  20. Not only are “that all men/women (or people for that matter) not created equal”, Even if there was a test tube baby factory which could make similar kids, unless they all lived underground like animals and did nothing, they would STILL not follow the EXACT same path through life and so a subtle difference could be notice by the trained eye, making them very unequal soon after birth and continuing more so through life.

    Gets `A’ for originality.

  21. CREATED equal – you still do not get it.

    The Creator *VALUES* us equally BECAUSE WE ARE ALL UNIQUE.

  22. True that, but just who is this creator you speak of, Satan! Remember now, there is NO god, just take a look around for proof of that.

  23. Justice is so rare for 2 or 3 primary reasons. The first and foremost
    being a lack of understanding of the laws of nature. Couple that with
    the fact that it only takes one judge to turn the table on a particular
    case, then throw in a bunch of democrats who think with their little
    peckers and it’s not to difficult to figure out what the HELL went wrong here.

    The further away you get from the laws of nature, and the more corrupt
    the individuals involved get, you now are creating the recipe of
    disaster for humans. The is what the western world has done and now
    wants to export it’s so called “greatness” to the rest of the world.
    It’s complete and utter insanity of the unimaginable kind, yet
    momentary trust the likes of which you wont regret in your entire life time, HA.

    Now we know that it’s all unsustainable and soon shall come to a swift,
    violent, and sudden end. Yet until then prepare yourselves to live in
    hell on earth, there are no other options.

    A thousand new world years of hell to give two people the chance of
    everlasting life only needing one to succeed to accomplish extincting
    Satan, and it has yet occur in the whole history of the universe, it’s unreal folks, simply unreal.

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