On November 2nd the Supreme Court is going to hear an appeal in the 1987 case of Timothy Tyrone Foster. Foster, who is black, was convicted in the murder of an elderly white woman in Georgia and sentenced to death for the crime. It may seem odd to hear that the justices will be considering a case that old, but the challenge is based on some personal notes from the prosecutor which turned up later. In them, he comments on the jury selection process and identifies some black members of the potential jury pool as definite “NO” selections, giving us a look inside the process which is probably fairly obvious to any attorney but not generally discussed in polite company. But as Robert Barnes points out at the Washington Post, it’s pretty hard to point fingers at the rationale used by attorneys when selecting jury members.

The rare discovery of the prosecutors’ racially coded notes is at the center of a coming Supreme Court case requesting a new trial for Foster. But the bigger issue for the justices, when they hear the case Nov. 2, is whether allowing lawyers to peremptorily dismiss potential jurors has simply become a way to discriminate.

It has been almost three decades since the Supreme Court in a case called Batson v. Kentucky ruled that it was unconstitutional to strike jurors because of their race.

But almost no one thinks the problem has been eliminated. Prosecutors and defense attorneys need only find a benign reason for dismissal: a failure to maintain eye contact and an age too close to the defendant’s were among those accepted in the Georgia case.

Studies and experience have concluded that only the most incompetent lawyer will fail to come up with a justification that a judge can accept.

The Voir Dire process may seem sketchy at first glance but when questions about it have come up in the past I’ve always been completely unable to think of a single thing you could do to change the system. Attorneys get to question the potential jurors to determine their suitability and are given a certain number of automatic rejections they can demand. Beyond that, both they and the judge can eliminate people from the jury pool if they are obviously compromised in terms of deciding the case.

How are we to put limits on this process or, as some are suggesting, eliminate it entirely? What if a person shows up who is obviously mentally incompetent and unable to form complete sentences? Even if they are competent, relatively intelligent people, anyone who pipes up and says they’ve been following the case closely in the media and already has some preconceived notions about it couldn’t be seated. Other lines of questioning include finding out if the potential juror is in the same profession as a defendant or victim as well as determining if they have any personal relationship with either of them. There are too many factors to list here which would immediately disqualify someone.

Perhaps they could take away the “automatic” rejections with no basis, but that will hinder the defense just as much as it will the prosecutor. Sometimes you just get “a feeling” about somebody when you get to speak with them and you just know that they aren’t going to lend an unbiased ear to the evidence. Others who simply don’t want to be there can give off a vibe that you just don’t want in the jurors’ box.

But as Barnes points out (or at least implies) in his article, you can eliminate anyone based on their obvious race, gender or age simply by coming up with some other rationale. This applies in cases of job applications, housing and all manner of business activities. Nobody is going to say, oh, I don’t rent to Asians, sorry. But when the time comes to make a decision and they rent to someone else they can simply say that the next person’s credit looked better or they seemed more tidy in their appearance and would be less likely to mess up the property.

The same goes for juries. To be clear, the justices aren’t being asked to rule on the jury selection process in general here… just whether or not it poisoned this one trial. But if the Supreme Court tosses this case based on the perceived bias of the prosecutor during Voir Dire then they open up the flood gates for challenges to almost every conviction on the books. I’m not saying there isn’t an underlying question as to how attorneys select jurors… some of this just seems to be human nature and a “win at all costs” attitude among successful lawyers. But the cure may be worse than the illness in this situation.