Supreme Court Orders New Trial For Black Death Row Inmate Convicted By All-White Jury : The Two-Way It has been nearly 30 years since the high court set new rules to counter race discrimination in the seating of juries. But in some jurisdictions, the propensity to bar black jurors persisted.

Supreme Court Orders New Trial For Black Death Row Inmate Convicted By All-White Jury

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The U.S. Supreme Court ruled today that a Georgia man sentenced to death should get a new trial. The court found prosecutors deliberately excluded African-Americans from the jury based on their race. The vote was 7 to 1 Justice Clarence Thomas was the lone dissenter. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In announcing the decision, Chief Justice John Roberts used unusually harsh words to describe the prosecutor's conduct. He labeled their proffered nonracial justifications for excluding all the black prospective jurors nonsense and not true.

The decision came in the case of Timothy Foster, a black man sentenced to death for murdering an elderly white woman. That was nearly 30 years ago and just a year after the Supreme Court had dealt for the first time with one of the key elements of the American jury system, the practice of allowing each side to eliminate a set number of prospective jurors without giving any reason. These are called peremptory strikes.

And in 1986, the court faced up to the fact that they can sometimes mask racial discrimination. The justices ruled that if minorities are disproportionately excluded from a jury panel, the prosecution has to justify its peremptory strikes with nonracial explanations. In Foster's case, the trial judge and every appellate court thereafter accepted those explanations.

But the Supreme Court said today they were, in effect, a charade. The prosecution's jury file, which the defense finally obtained in 2006, showed that the name of every black prospective juror was labeled with a B and highlighted in green. The black jurors were rated against each other, quote, "in case it comes down to having to pick one."

As to their reasons prosecutors gave for striking black jurors, the court said they cannot be credited because white jurors with the same characteristics were accepted for the jury. For example, the prosecution claimed that it struck Marilyn Garrett because she was divorced, and at age 34 was too young to serve in a case involving an 18-year-old defendant. But three of the four divorced white prospective jurors were allowed to serve, as were eight white jurors under the age of 36.

Similarly, the prosecution struck prospective juror Eddie Hood because his son was the same age as the defendant. But the prosecution allowed white jurors with teenage sons to serve. When called on that, the prosecution shifted its focus to Hood's son, claiming he'd been convicted of a, quote, "similar crime," a claim the chief justice scoffed at noting that Hood's son had been convicted five years earlier of stealing four hubcaps.

In the end, the court concluded that the shifting explanations, misrepresentations of the record and the persistent focus on race in the prosecution's file demonstrated an unconstitutional and concerted effort to keep black prospective jurors off the jury. The decision was a relief to defense lawyers and some prosecutors, among them Larry Thompson, who served as deputy attorney general in the George W. Bush administration and before that as the chief federal prosecutor in Atlanta.

LARRY THOMPSON: What makes this case so important is that the Supreme Court clearly decided not to weaken the standard. And I think it will make it more difficult for prosecutors to engage in the kind of blatant and purposeful racial discrimination as the prosecutors did in this case.

TOTENBERG: But others believe that until we get rid of peremptory strikes, racial discrimination in jury selection will only become more covert. Harvard law professor Charles Nesson, an expert on jury selection, says it invites discrimination when you eliminate a potential juror for no stated reason.

CHARLES NESSON: Sorry, you're gone. It's like an insult, and yet it's perfectly tolerated.

TOTENBERG: Justice Clarence Thomas, the court's only African-American justice, was the sole dissenter today. He said that in his view, the reasons given for the peremptory strikes were credible. Nina Totenberg, NPR News, Washington.

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