Foster v. Chatman

May 23, 2016 7:34 AM

The Supreme Court today overruled the Superior Court of Georgia. In 1987, Timothy Foster – a low-income, intellectually disabled, black teenager was charged with the murder of a white woman and was tried by an all-white jury after Georgia prosecutors used their peremptory strikes to exclude all black prospective jurors from jury service. He was sentenced to death, and has been appealing this sentence for almost thirty years.

Racism Highlighted in a Green Marker

The Supreme Court’s Gap on Race and Juries

posted by roomthreeseventeen (25 comments total)

The arc of the moral universe is long, but it bends towards justice.
posted by y2karl at 7:45 AM on May 23, 2016 [3 favorites]

And how about the thirty years it took for that arc to bend? Is there gonna be justice for that?
posted by J.K. Seazer at 7:50 AM on May 23, 2016 [16 favorites]

It is a long line in which to stand.
posted by y2karl at 7:54 AM on May 23, 2016 [1 favorite]

The no doubt heroically massive civil rights lawsuit and possible false imprisonment suit might go some way towards that. Justice sometimes has to be sought in civil court.
posted by Punkey at 7:54 AM on May 23, 2016 [4 favorites]

Does this mean he will get a new trial, or just that the death penalty won't be imposed?
posted by corb at 8:01 AM on May 23, 2016

Here we go.

"Because the adjudication of his Batson claim is, at bottom, a credibility determination, we owe “great deference” to the state court’s initial finding that the prosecution’s race-neutral reasons for striking veniremen Eddie Hood and Marilyn Garrett were credible"

"As even the Court admits, ante, at 9–10, we do not know who wrote most of the notes that Foster now relies upon as proof of the prosecutors’ race-based motivations. "

So even though these documents shows someone in the prosecutor's office targeting race and these documents come literally from the prosecution's file, we can't be sure that the prosecution wrote them because the prosecution doesn't want to/can't say/remember who did that to the documents in question.

Holy fucking shit. This takes McCleskey v. Kemp to reductio ad absurdum levels. Do we need to have the prosecutor on tape saying "we're gonna lynch the n-r" before Thomas stops being a fucking apologist for racist southerners?
posted by Talez at 8:02 AM on May 23, 2016 [39 favorites]

The arc of the moral universe is long, but it bends towards justice.

Only when a bunch of people pull on it really fucking hard.
posted by emjaybee at 8:10 AM on May 23, 2016 [70 favorites]

> The Supreme Court today overruled the Superior Court of Georgia. In 1987, Timothy Foster – a low-income, intellectually disabled, black teenager was charged with the murder of a white woman and was tried by an all-white jury after Georgia prosecutors used their peremptory strikes to exclude all black prospective jurors from jury service. He was sentenced to death, and has been appealing this sentence for almost thirty years.

Would it be too much to ask that posts about legal cases provide a summary of what the fuck has actually been decided?
posted by languagehat at 8:10 AM on May 23, 2016 [32 favorites]

This probably deserves an FPP of its own, but holy shit:

Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks.

We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm.

The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.

When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.

We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.

• The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.
• White defendants were mislabeled as low risk more often than black defendants.

Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind.

The algorithm used to create the Florida risk scores is a product of a for-profit company, Northpointe. The company disputes our analysis.

posted by zombieflanders at 8:13 AM on May 23, 2016 [28 favorites]

Would it be too much to ask that posts about legal cases provide a summary of what the fuck has actually been decided?


Reading through the opinion, it looks like a pretty narrow ruling? Basically the Supreme Court said, yes, they were in fact using race as the primary factor to strike people from the jury in this case.
posted by damayanti at 8:16 AM on May 23, 2016

Would it be too much to ask that posts about legal cases provide a summary of what the fuck has actually been decided?

This is the key "brass tacks" part of the opinion, as it directly affects Foster's case:

Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. [Racist prosecutors did racist stuff during jury selection.] The trial court and the Georgia Supreme Court rejected Foster’s Batson claim.

Foster then sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, renewing his Batson objection. That court denied relief, and the Georgia Supreme Court declined to issue the Certificate of Probable Cause necessary under Georgia law for Foster to pursue an appeal. We granted certiorari and now reverse.

Foster's case was fucked up by a racist prosecutor. Foster immediately appealed his conviction on that basis, but the trial court and the Georgia Supreme Court said no.

Foster then made a different kind of appeal called a habeas corpus petition, which is made after someone has been imprisoned. A low level Georgia court denied the habeas petition. Foster attempted to appeal to the Georgia Supreme Court, which refused to hear the appeal. Foster then appealed that denial of an appeal to the US Supreme Court.

The US Supreme Court said "No, actually Foster should be able to appeal the low level court's decision because there was pretty obviously racist malfeasance during jury selection."

Basically the US Supreme Court ordered the Georgia Supreme Court to hear Foster's appeal. That appeal still has to be heard, and it could still result in the Georgia Supreme Court affirming the low level court's decision. Even if it reverses the low level court's decision, the result could just be a new trial, which might still result in conviction.
posted by jedicus at 8:40 AM on May 23, 2016 [32 favorites]

The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.

When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.

It's hard to say how bad those prediction rates are without looking at the baselines. For example, if only .01% of the studied population commits violent crime in that same time span, then a prediction that gets you to 20% is pretty good and could be very useful in allocating police, probation, and social worker resources. In some cases (e.g. intimate partner violence) it could be very useful in allocating resources to the protection of specific people who are at increased risk of future violence.

That said, even if the predictive power is quite good, it's questionable if it's used to apply disproportionate police pressure to minorities.
posted by jedicus at 8:52 AM on May 23, 2016 [1 favorite]

> "Do we need to have the prosecutor on tape saying "we're gonna lynch the n-r" before Thomas stops being a fucking apologist for racist southerners?"

Is anyone even the *least* bit surprised that Thomas was the lone dissenter? If tomorrow Aliens met in a council to decide whether to allow humanity to continue to exist, Thomas would be Exhibit A by those arguing to turn the planet into an asteroid field and then vaporize the field just to be sure.

I said a few years ago that you can often cleanly tell the appropriate side in SC cases by Thomas's vote alone: If he sides with 2 or less other Justices, you can be guaranteed that his position is utterly abhorrent. If he sides with 6 or more Justices, you can be guaranteed that the issue is so settled that even he couldn't screw it up. In between he occasionally has periods of lucidity that allow him to rule the correct way, but even then you're usually on better ground if you bet against...
posted by mystyk at 8:55 AM on May 23, 2016 [10 favorites]

"then a prediction that gets you to 20% is pretty good and could be very useful in allocating police, probation, and social worker resources."

So long as you're not using it to target individuals, sure. But that sort of nuance isn't something I would expect from a cop given a single number about an individual.
posted by kaibutsu at 9:37 AM on May 23, 2016 [1 favorite]

Here's what this very welcome decision means: In the past, that a prosecutor strikes jurors of color from a jury could be challenged but if the prosecutor provided a "race neutral" explanation the challenge would be overruled. But in this case, the US Supreme Court drew a road map for trial judges to scrutinize those strikes. The trial judge now can and should compare the jurors who were struck to the jurors who were retained, to assess whether the reasons given for a strike are credible. If the prosecutor isn't applying the same reasoning to jurors of color as those who aren't, the prosecutor's effort to weed the jury of people of color will be disallowed.

This case could have been decided on the overt racism revealed in the prosecutor's notes, which is an unusual smoking gun we probably won't see again, but instead the court educated judges on how to look searchingly at the actual record before them to disallow racist challenges.

Also, this decision may have opened the door a bit more for habeas challenges of death penalty cases based on racism. That's what Alito's concurrence and Thomas' dissent suggest.
posted by bearwife at 9:51 AM on May 23, 2016 [10 favorites]

Holy fucking shit. This takes McCleskey v. Kemp to reductio ad absurdum levels. Do we need to have the prosecutor on tape saying "we're gonna lynch the n-r" before Thomas stops being a fucking apologist for racist southerners?

But you can't prove that it wasn't someone in a disguise imitating the prosecutor's voice.
posted by ArgentCorvid at 9:57 AM on May 23, 2016 [7 favorites]

Also, since the Supreme Court ruled categorically that at least two of Foster's prospective jurors were stricken based on race -- "two more than the Constitution allows " -- I don't see any way Georgia can avoid granting him a new trial, on both guilt and the death penalty.
posted by bearwife at 9:58 AM on May 23, 2016 [1 favorite]

Procedurally, this case is interesting. Ordinarily, a convicted defendant has to appeal his conviction as high as it will go ("direct appeal"), then start over with a constitutional claim in state habeas, lose there, and then start over again with federal habeas (the latter two are called "collateral appeal"). So the U.S. Supreme Court usually hears a habeas case on the merits only after it's proceeded through state court twice and then gone through the appropriate federal district and circuit courts. But SCOTUS is entitled to review final decisions made by the state supreme courts, within certain parameters, so the defendant here appealed the final decision made by the Georgia Supreme Court terminating the state habeas proceeding. (Looking through the opinion again, I see that Alito recognizes the unusual nature of the appeal.) The great difficulty with bringing federal habeas cases post-AEDPA is that federal courts can't merely overturn state court decisions on the grounds that they incorrectly interpreted federal law--it has to be a clearly erroneous decision. ("Clearly erroneous" appears in the opinion, but in connection to overturning fact-findings, not the legal standard applied by the state court.) By appealing the Georgia Supreme Court's decision directly rather than bringing a separate federal habeas action, the defendant seems to have allowed SCOTUS to at least avoid facing AEDPA head-on. Maybe I'm wrong--it was only a quick read--but if so, it's interesting.

Tactically, because you can bring a federal habeas case as of right and SCOTUS has discretion to deny (and usually does) cert., this maneuver could only work in a case where there was some really blatant miscarriage of justice, preferably withheld evidence that was unearthed. It would have to be a very extreme case in which legal interpretation was the key issue to prompt SCOTUS to take such a case rather than have the lower federal courts chew on it first.
posted by praemunire at 10:11 AM on May 23, 2016 [3 favorites]

The trial judge now can and should compare the jurors who were struck to the jurors who were retained, to assess whether the reasons given for a strike are credible.

That's great! We do this in banking compliance and regulation all the time. We call it a "matched pairs" audit. We sort through our data to come up with sets of test cases where there are two loan applications that are as close to identical as we can find, the only difference being that one application includes an applicant from a protected class and the other does not (the protected class is pretty much always based on race IIRC) and the application that includes the protected class applicant had some kind of adverse action (turn down or counter-offer).

The idea is that, from the easily quantifiable stuff that we can measure, these look like two identical loans and we should want both on our books so the only reason for denying one is racism. Someone like me then looks at each application and make notes that boil down to, "Nope, it's not that we're [the bank] racist, it's that this other applicant didn't actually have the full two-year work history in the same line of work." or some other, less quantifiable but otherwise good justification for treating two seemingly similar applications differently.

In banking, my opinion is that every customer's money is the same color so we don't ever discriminate on purpose. But sometimes we can accidentally do things that have racist outcomes and routine matched pair audits are one of the more effective tools we have to check.

With jury selection, there is a lot less data, a lot less can be done to find two similar potential jurors, and there can be a lot of variation from what one judge thinks is a valid non-racist reason to another. It's a step in the right direction but time will tell if it actually makes a difference.
posted by VTX at 10:35 AM on May 23, 2016 [9 favorites]

In banking, my opinion is that every customer's money is the same color so we don't ever discriminate on purpose.

That turns out not to be the case.
posted by praemunire at 11:02 AM on May 23, 2016 [2 favorites]

Well, that's actually an example that supports my assertion. It's tricky because I know that MY bank isn't racist on purpose and it's reasonable to think that it's generally applicable to banking as a whole. It simply doesn't make business sense to be racist.

Right there in headline they tell you "Countrywide's Racist Lending Practices Were Fueled by Greed". Racist? Sure, but not really because Countrywide, as an institution, wants to keep POC's in their place, they are greedy, they found a business practice that would increase profits and ignored the fact that the outcomes were racist. It's not like a product team got together to figure out the terms from some new product and someone said, "Hey, I think we could really fuck-over Blacks and Hispanics if we structure things like so."

They just paid higher commissions on a more profitable product. The problem then is "steering" where you've got commissioned sales people pushing people towards a more profitable product rather than the one that best fits their needs. I'm pretty sure we have a routine audit that targets this specifically (customer's who look like they qualify for prime products but have a sub-prime loan). Either Countrywide's compliance department failed to catch it or their warnings were ignored. But the idea of paying a higher commission on a more profitable product is an innocent enough idea, you just have to be VERY careful about how it's structured. Countrywide failed to structure it in a way that would mitigate against racist salespeople or just salespeople with unconscious biases that go unchecked and then they failed to make changes if/when their compliance apparatus identified the issue.
posted by VTX at 12:50 PM on May 23, 2016 [1 favorite]

They just paid higher commissions on a more profitable product. The problem then is "steering" where you've got commissioned sales people pushing people towards a more profitable product rather than the one that best fits their needs.

Boy, I wonder how they chose the people they would steer into the worst products!

Countrywide failed to structure it in a way that would mitigate against racist salespeople or just salespeople with unconscious biases that go unchecked

If you think the actions of your company's salesforce shouldn't be attributed to your company ("Oh, the company's not racist, our salesforce just is!")...well, I was going to say that surprises me, but, no, it's actually pretty much what I expect from financial institution compliance.

There is such a thing as disparate impact, and sometimes it's even unintentional, but, oh, boy, that does not cover the universe of wrongdoing.
posted by praemunire at 1:51 PM on May 23, 2016 [4 favorites]

Right but it's not like they're members of the KKK or anything. We're talking about customers who might be close the prime/sub-prime line for whatever reason and it's taken a long time to get through the process because English is their second language so the salesperson takes a short-cut and recommends the product they KNOW they can get approved and besides, it pays them a better commission.

Or it's an unconscious bias (and everyone has them) and the sales person just isn't realizing that it's affecting their decision-making. It could even be a financial education gap that aligns with race so the sales people are trying to screw over everyone and whites catch it more often.

But that's why disparate impact exists. Regulators don't give a shit WHY you ended up with racist outcomes, only that you did and that you fix it.

I mean, it's not like the bank DOESN'T want to charge white people higher rates, it wants to charge everyone higher rates.
posted by VTX at 3:58 PM on May 23, 2016 [1 favorite]

Right but it's not like they're members of the KKK or anything.

If that's your bar for racism, you'll never find it anywhere.
posted by praemunire at 4:40 PM on May 23, 2016 [1 favorite]

My point is that they aren't necessarily overtly racist, just average people.

In the same way that the lawyer don't have to be bigots to realize that having fewer black people on the jury increases their chance of winning.

That's why matched pair audits are important (to try and bring this back on topic), motives don't matter, only the outcomes.
posted by VTX at 5:03 PM on May 23, 2016