November 2, 2015
OF CERTIORARI TO THE SUPREME COURT OF GEORGIA
Timothy Foster was convicted of capital murder and
sentenced to death in a Georgia court. During jury
selection at his trial, the State used peremptory
challenges to strike all four black prospective jurors
qualified to serve on the jury. Foster argued that the
State's use of those strikes was racially motivated, in
violation of Batson v. Kentucky, 476 U.S. 79. The
trial court rejected that claim, and the Georgia Supreme
Court affirmed. Foster then renewed his Batson
claim in a state habeas proceeding. While that proceeding
was pending, Foster, through the Georgia Open Records Act,
obtained from the State copies of the file used by the
prosecution during his trial. Among other documents, the
file contained (1) copies of the jury venire list on which
the names of each black prospective juror were highlighted
in bright green, with a legend indicating that the
highlighting "represents Blacks"; (2) a draft
affidavit from an investigator comparing black prospective
jurors and concluding, "If it comes down to having to
pick one of the black jurors, [this one] might be
okay"; (3) notes identifying black prospective jurors
as "B#1, " "B#2, " and "B#3";
(4) notes with "N" (for "no") appearing
next to the names of all black prospective jurors; (5) a
list titled "[D]efinite NO's" containing six
names, including the names of all of the qualified black
prospective jurors; (6) a document with notes on the Church
of Christ that was annotated "NO. No
Black Church"; and (7) the questionnaires
filled out by five prospective black jurors, on which each
juror's response indicating his or her race had been
state habeas court denied relief. It noted that
Foster's Batson claim had been adjudicated on
direct appeal. Because Foster's renewed Batson
claim "fail[ed] to demonstrate purposeful
discrimination, " the court concluded that he had
failed to show "any change in the facts sufficient to
overcome" the state law doctrine of res judicata.
Georgia Supreme Court denied Foster the Certificate of
Probable Cause necessary to file an appeal.
Court has jurisdiction to review the judgment of the
Georgia Supreme Court denying Foster a Certificate of
Probable Cause on his Batson claim. Although this
Court cannot ascertain the grounds for that unelaborated
judgment, there is no indication that it rested on a state
law ground that is both "independent of the
merits" of Foster's Batson claim and an
"adequate basis" for that decision, so as to
preclude jurisdiction. Harris v. Reed, 489 U.S.
255, 260. The state habeas court held that the state law
doctrine of res judicata barred Foster's claim only by
examining the entire record and determining that Foster had
not alleged a change in facts sufficient to overcome the
bar. Based on this lengthy "Batson analysis,
" the state habeas court concluded that Foster's
renewed Batson claim was "without
merit." Because the state court's application of
res judicata thus "depend[ed] on a federal
constitutional ruling, [that] prong of the court's
holding is not independent of federal law, and [this
Court's] jurisdiction is not precluded." Ake
v. Oklahoma, 470 U.S. 68, 75; see also Three
Affiliated Tribes of Fort Berthold Reservation v. Wold
Engineering, P. C., 467 U.S. 138, 152. Pp. 6–9.
decision that Foster failed to show purposeful
discrimination was clearly erroneous. Pp. 9–25.
provides a three-step process for adjudicating claims such
as Foster's. "First, a defendant must make a prima
facie showing that a preemptory challenge has been
exercised on the basis of race; second, if that showing has
been made, the prosecution must offer a race-neutral basis
for striking the juror in question; and third, in light of
the parties' submissions, the trial court must
determine whether the defendant has shown purposeful
discrimination." Snyder v. Louisiana, 552
U.S. 472, 477 (internal quotation marks and brackets
omitted). Only Batson's third step is at issue
here. That step turns on factual findings made by the lower
courts, and this Court will defer to those findings unless
they are clearly erroneous. See ibid. Pp.
established purposeful discrimination in the State's
strikes of two black prospective jurors: Marilyn Garrett
and Eddie Hood. Though the trial court accepted the
prosecution's justifications for both strikes, the
record belies much of the prosecution's reasoning. Pp.
The prosecution explained to the trial court that it made a
last-minute decision to strike Garrett only after another
juror, Shirley Powell, was excused for cause on the morning
that the strikes were exercised. That explanation is flatly
contradicted by evidence showing that Garrett's name
appeared on the prosecution's list of "[D]efinite
NO's"-the six prospective jurors whom the
prosecution was intent on striking from the outset. The
record also refutes several of the reasons the prosecution
gave for striking Garrett instead of Arlene Blackmon, a
white prospective juror. For example, while the State told
the trial court that it struck Garrett because the defense
did not ask her for her thoughts about such pertinent trial
issues as insanity, alcohol, or pretrial publicity, the
record reveals that the defense asked Garrett multiple
questions on each topic. And though the State gave other
facially reasonable justifications for striking Garrett,
those are difficult to credit because of the State's
willingness to accept white jurors with the same
characteristics. For example, the prosecution
claims that it struck Garrett because she was divorced and,
at age 34, too young, but three out of four divorced white
prospective jurors and eight white prospective jurors under
age 36 were allowed to serve. Pp. 11–17.
With regard to prospective juror Hood, the record similarly
undermines the justifications proffered by the State to the
trial court for the strike. For example, the prosecution
alleged in response to Foster's pretrial
Batson challenge that its only concern with Hood
was the fact that his son was the same age as the
defendant. But then, at a subsequent hearing, the State
told the court that its chief concern was with Hood's
membership in the Church of Christ. In the end, neither of
those reasons for striking Hood withstands scrutiny. As to
the age of Hood's son, the prosecution allowed white
prospective jurors with sons of similar age to serve,
including one who, in contrast to Hood, equivocated when
asked whether Foster's age would be a factor at
sentencing. And as to Hood's religion, the prosecution
erroneously claimed that three white Church of Christ
members were excused for cause because of their opposition
to the death penalty, when in fact the record shows that
those jurors were excused for reasons unrelated to their
views on the death penalty. Moreover, a document acquired
from the State's file contains a handwritten note
stating, "NO. NO Black Church,
" while asserting that the Church of Christ does not
take a stand on the death penalty. Other justifications for
striking Hood fail to withstand scrutiny because no
concerns were expressed with regard to similar white
prospective jurors. Pp. 17–23.
Evidence that a prosecutor's reasons for striking a
black prospective juror apply equally to an otherwise
similar nonblack prospective juror who is allowed to serve
tends to suggest purposeful discrimination. Miller-El
v. Dretke, 545 U.S. 231, 241. Such evidence is
compelling with respect to Garrett and Hood and, along with
the prosecution's shifting explanations,
misrepresentations of the record, and persistent focus on
race, leads to the conclusion that the striking of those
prospective jurors was "motivated in substantial part
by discriminatory intent." Snyder, 552 U.S.,
at 485. P. 23.
Because Batson was decided only months before
Foster's trial, the State asserts that the focus on
black prospective jurors in the prosecution's file was
an effort to develop and maintain a detailed account should
the prosecution need a defense against any suggestion that
its reasons were pretextual. That argument, having never
before been raised in the 30 years since Foster's
trial, "reeks of afterthought."
Miller-El, 545 U.S., at 246. And the focus on race
in the prosecution's file plainly demonstrates a
concerted effort to keep black prospective jurors off the
jury. Pp. 23–25.
Roberts, C. J., delivered the opinion of the Court, in which
Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined.
Alito, J., filed an opinion concurring in the judgment.
Thomas, J., filed a dissenting opinion.
Roberts Chief Justice
Timothy Foster was convicted of capital murder and sentenced
to death in a Georgia court. During jury selection at his
trial, the State exercised peremptory strikes against all
four black prospective jurors qualified to serve. Foster
argued that the State's use of those strikes was racially
motivated, in violation of our decision in Batson v.
Kentucky, 476 U.S. 79 (1986). The trial court and the
Georgia Supreme Court rejected Foster's Batson
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.
morning of August 28, 1986, police found Queen Madge White
dead on the floor of her home in Rome, Georgia. White, a
79-year-old widow, had been beaten, sexually assaulted, and
strangled to death. Her home had been burglarized. Timothy
Foster subsequently confessed to killing White, and
White's possessions were recovered from Foster's home
and from Foster's two sisters. The State indicted Foster
on charges of malice murder and burglary. He faced the death
penalty. Foster v. State, 258 Ga. 736, 374 S.E.2d
Attorney Stephen Lanier and Assistant District Attorney
Douglas Pullen represented the State at trial. Jury selection
proceeded in two phases: removals for cause and peremptory
strikes. In the first phase, each prospective juror completed
a detailed questionnaire, which the prosecution and defense
reviewed. The trial court then conducted a juror-by-juror
voir dire of approximately 90 prospective jurors.
Throughout this process, both parties had the opportunity to
question the prospective jurors and lodge challenges for
cause. This first phase whittled the list down to 42
"qualified" prospective jurors. Five were black.
second phase, known as the "striking of the jury, "
both parties had the opportunity to exercise peremptory
strikes against the array of qualified jurors. Pursuant to
state law, the prosecution had ten such strikes; Foster
twenty. See Ga. Code Ann. §15–12–165 (1985).
The process worked as follows: The clerk of the court called
the qualified prospective jurors one by one, and the State
had the option to exercise one of its peremptory strikes. If
the State declined to strike a particular prospective juror,
Foster then had the opportunity to do so. If neither party
exercised a peremptory strike, the prospective juror was
selected for service. This second phase continued until 12
jurors had been accepted.
morning the second phase began, Shirley Powell, one of the
five qualified black prospective jurors, notified the court
that she had just learned that one of her close friends was
related to Foster. The court removed Powell for cause. That
left four black prospective jurors: Eddie Hood, Evelyn
Hardge, Mary Turner, and Marilyn Garrett.
striking of the jury then commenced. The State exercised nine
of its ten allotted peremptory strikes, removing all four of
the remaining black prospective jurors. Foster immediately
lodged a Batson challenge. The trial court rejected
the objection and empaneled the jury. The jury convicted
Foster and sentenced him to death.
sentencing, Foster renewed his Batson claim in a
motion for a new trial. After an evidentiary hearing, the
trial court denied the motion. The Georgia Supreme Court
affirmed, 258 Ga., at 747, 374 S.E.2d, at 197, and we denied
certiorari, Foster v. Georgia, 490 U.S. 1085 (1989).
subsequently sought a writ of habeas corpus from the Superior
Court of Butts County, Georgia, again pressing his
Batson claim. While the state habeas proceeding was
pending, Foster filed a series of requests under the Georgia
Open Records Act, see Ga. Code Ann.
§§50–18–70 to 50–18–77
(2002), seeking access to the State's file from his 1987
trial. In response, the State disclosed documents related to
the jury selection at that trial. Over the State's
objections, the state habeas court admitted those documents
into evidence. They included the following:
Four copies of the jury venire list. On each copy, the names
of the black prospective jurors were highlighted in bright
green. A legend in the upper right corner of the lists
indicated that the green highlighting "represents
Blacks." See, e.g., App. 253. The letter
"B" also appeared next to each black prospective
juror's name. See, e.g., ibid. According to the
testimony of Clayton Lundy, an investigator who assisted the
prosecution during jury selection, these highlighted venire
lists were circulated in the district attorney's office
during jury selection. That allowed "everybody in the
office"-approximately "10 to 12 people, "
including "[s]ecretaries, investigators, [and] district
attorneys"-to look at them, share information, and
contribute thoughts on whether the prosecution should strike
a particular juror. Pl. Exh. 1, 2 Record 190, 219 (Lundy
deposition) (hereinafter Tr.). The documents, Lundy
testified, were returned to Lanier before jury selection.
Id., at 220.
draft of an affidavit that had been prepared by Lundy
"at Lanier's request" for submission to the
state trial court in response to Foster's motion for a
new trial. Id., at 203. The typed draft detailed
Lundy's views on ten black prospective jurors, stating
"[m]y evaluation of the jurors are a[s] follows."
App. 343. Under the name of one of those jurors, Lundy had
"If it comes down to having to pick one of the black
jurors, [this one] might be okay. This is solely my opinion.
. . . Upon picking of the jury after listening to all of the
jurors we had to pick, if we had to pick a black juror I
recommend that [this juror] be one of the jurors."
Id., at 345 (paragraph break omitted).
text had been crossed out by hand; the version of the
affidavit filed with the trial court did not contain the
crossed-out language. See id., at 127–129.
Lundy testified that he "guess[ed]" the redactions
had been done by Lanier. Tr. 203.
Three handwritten notes on black prospective jurors Eddie
Hood, Louise Wilson, and Corrie Hinds. Annotations denoted
those individuals as "B#1, " "B#2, " and
"B#3, " respectively. App. 295–297. Lundy
testified that these were examples of the type of "notes
that the team- the State would take down during voir dire to
help select the jury in Mr. Foster's case." Tr.
typed list of the qualified jurors remaining after voir
dire. App. 287–290. It included "Ns"
next to ten jurors' names, which Lundy told the state
habeas court "signif[ied] the ten jurors that the State
had strikes for during jury selection." Tr. 211. Such an
"N" appeared alongside the names of all five
qualified black prospective jurors. See App. 287–290.
The file also included a handwritten version of the same
list, with the same markings. Id., at 299–300;
see Tr. 212. Lundy testified that he was unsure who had
prepared or marked the two lists.
handwritten document titled "definite NO's, "
listing six names. The first five were those of the five
qualified black prospective jurors. App. 301. The State
concedes that either Lanier or Pullen compiled the list,
which Lundy testified was "used for preparation in jury
selection." Tr. 215; Tr. of Oral Arg. 45.
handwritten document titled "Church of Christ." A
notation on the document read: "NO. No
Black Church." App. 302.
questionnaires that had been completed by several of the
black prospective jurors. On each one, the juror's
response indicating his or her race had been circled.
Id., at 311, 317, 323, 329, 334.
response to the admission of this evidence, the State
introduced short affidavits from Lanier and Pullen.
Lanier's affidavit stated:
"I did not make any of the highlighted marks on the jury
venire list. It was common practice in the office to
highlight in yellow those jurors who had prior case
experience. I did not instruct anyone to make the green
highlighted marks. I reaffirm my testimony made during the
motion for new trial hearing as to how I used my peremptory
jury strikes and the basis and reasons for those
strikes." Id., at 169 (paragraph numeral
"I did not make any of the highlighted marks on the jury
venire list, and I did not instruct anyone else to make the
highlighted marks. I did not rely on the highlighted jury
venire list in making my decision on how to use my peremptory
strikes." Id., at 170–171 (paragraph
affidavit provided further explanation of the documents, and
neither Lanier nor Pullen testified in the habeas proceeding.
considering the evidence, the state habeas court denied
relief. The court first stated that, "[a]s a preliminary
matter, " Foster's Batson claim was
"not reviewable based on the doctrine of res
judicata" because it had been "raised and litigated
adversely to [Foster] on his direct appeal to the Georgia
Supreme Court." App. 175. The court nonetheless
announced that it would "mak[e] findings of fact and
conclusions of law" on that claim. Id., at 191.
Based on what it referred to as a "Batson . . .
analysis, " the court concluded that Foster's
"renewed Batson claim is without merit, "
because he had "fail[ed] to demonstrate purposeful
discrimination." Id., at 192, 195, 196.
Georgia Supreme Court denied Foster the "Certificate of
Probable Cause" necessary under state law for him to
pursue an appeal, determining that his claim had no
"arguable merit." Id., at 246; see Ga.
Code Ann. §9–14–52 (2014); Ga. Sup. Ct. Rule
36 (2014). We granted certiorari. 575 U.S. __(2015).
turning to the merits of Foster's Batson claim,
we address a threshold issue. Neither party contests our
jurisdiction to review Foster's claims, but we "have
an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from
any party." Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006).
Court lacks jurisdiction to entertain a federal claim on
review of a state court judgment "if that judgment rests
on a state law ground that is both 'independent' of
the merits of the federal claim and an 'adequate'
basis for the court's decision." Harris v.
Reed, 489 U.S. 255, 260 (1989).
state habeas court noted that Foster's Batson
claim was "not reviewable based on the doctrine of res
judicata" under Georgia law. App. 175. The Georgia
Supreme Court's unelaborated order on review provides no
reasoning for its decision. That raises the question whether
the Georgia Supreme Court's order-the judgment from which
Foster sought certiorari-rests on an adequate and independent
state law ground so as to preclude our jurisdiction over
Foster's federal claim.
conclude that it does not. When application of a state law
bar "depends on a federal constitutional ruling, the
state-law prong of the court's holding is not independent
of federal law, and our jurisdiction is not precluded."
Ake v. Oklahoma, 470 U.S. 68, 75 (1985); see also
Three Affiliated Tribes of Fort Berthold Reservation v.
Wold Engineering, P. C., 467 U.S. 138, 152 (1984).
case, the Georgia habeas court's analysis in the section
of its opinion labeled "Batson claim"
proceeded as follows:
"The [State] argues that this claim is not reviewable
due to the doctrine of res judicata. However, because
[Foster] claims that additional evidence allegedly supporting
this ground was discovered subsequent to the Georgia Supreme
Court's ruling [on direct appeal], this court will review
the Batson claim as to whether [Foster] has shown
any change in the facts sufficient to overcome the res
judicata bar." App. 192.
determine whether Foster had alleged a sufficient
"change in the facts, " the habeas court engaged in
four pages of what it termed a "Batson . . .
analysis, " in which it evaluated the original trial
record and habeas record, including the newly uncovered
prosecution file. Id., at 192–196. Ultimately,
that court concluded that Foster's "renewed
Batson claim is without merit."
Id., at 196 (emphasis added).
light of the foregoing, it is apparent that the state habeas
court's application of res judicata to Foster's
Batson claim was not independent of the merits of
his federal constitutional challenge. That court's invocation
of res judicata therefore poses no impediment to our review
of Foster's Batson claim. See Ake, 470
U.S., at 75.
"Constitution forbids striking even a single prospective
juror for a discriminatory purpose." Snyder v.
Louisiana, 552 U.S. 472, 478 (2008) (internal quotation
marks omitted). Our decision in Batson v. Kentucky,
476 U.S. 79, provides a three-step process for determining
when a strike is discriminatory:
"First, a defendant must make a prima facie showing that
a peremptory challenge has been exercised on the basis of
race; second, if that showing has been made, the prosecution
must offer a race-neutral basis for striking the juror in
question; and third, in light of the parties'
submissions, the trial court must determine whether the
defendant has shown purposeful discrimination."
Snyder, 552 U.S., at 476-477 (internal quotation
marks and brackets omitted).
parties agree that Foster has demonstrated a prima facie
case, and that the prosecutors have offered race-neutral
reasons for their strikes. We therefore address only
Batson's third step. That step turns on factual
determinations, and, "in the absence of exceptional
circumstances, " we defer to state court factual
findings unless we conclude that they are clearly erroneous.
Synder, 552 U.S., at 477.
reviewing the factual record in this case, a brief word is in
order regarding the contents of the prosecution's file
that Foster obtained through his Georgia Open Records Act
requests. Pursuant to those requests, Foster received a
"certif[ied] . . . true and correct copy of 103 pages of
the State's case file" from his 1987 trial. App.
247. The State argues that "because [Foster] did not
call either of the prosecutors to the stand" to testify
in his state habeas proceedings, "he can only speculate
as to the meaning of various markings and writings" on
those pages, "the author of many of them, and whether
the two prosecutors at trial (District Attorney Lanier and
Assistant District Attorney Pullen) even saw many of
them." Brief for Respondent 20. For these reasons, the
State argues, "none of the specific pieces of new
evidence [found in the file] shows an intent to
discriminate." Ibid. (capitalization omitted).
For his part, Foster argues that "[t]here is no question
that the prosecutors used the lists and notes, which came
from the prosecution's file and were certified as such,
" and therefore the "source of the lists and notes,
their timing, and their purpose is hardly 'unknown'
or based on 'conjecture.'" Reply Brief 4–5
(quoting Brief for Respondent 27–28).
State concedes that the prosecutors themselves authored some
documents, see, e.g., Tr. of Oral Arg. 45 (admitting
that one of the two prosecutors must have written the list
titled "definite NO's"), and Lundy's
testimony strongly suggests that the prosecutors viewed
others, see, e.g., Tr. 220 (noting that the
highlighted jury venire lists were returned to Lanier prior
to jury selection). There are, however, genuine questions
that remain about the provenance of other documents. Nothing
in the record, for example, identifies the author of the
notes that listed three black prospective jurors as
"B#1, " "B#2, " and "B#3." Such
notes, then, are not necessarily attributable directly to the
prosecutors themselves. The state habeas court was cognizant
of those limitations, but nevertheless admitted the file into
evidence, reserving "a determination as to what weight
the Court is going to put on any of [them]" in light of
the objections urged by the State. 1 Record 20.
agree with that approach. Despite questions about the
background of particular notes, we cannot accept the
State's invitation to blind ourselves to their existence.
We have "made it clear that in considering a
Batson objection, or in reviewing a ruling claimed
to be Batson error, all of the circumstances that
bear upon the issue of racial animosity must be
consulted." Snyder, 552 U.S., at 478. As we
have said in a related context, "[d]etermining whether
invidious discriminatory purpose was a motivating factor
demands a sensitive inquiry into such circumstantial . . .
evidence of intent as may be available." Arlington
Heights v. Metropolitan Housing Development Corp., 429
U.S. 252, 266 (1977). At a minimum, we are comfortable that
all documents in the file were authored by someone
in the district attorney's office. Any uncertainties
concerning the documents are pertinent only as potential
limits on their probative value.
centers his Batson claim on the strikes of two black
prospective jurors, Marilyn Garrett and Eddie Hood. We turn
first to Marilyn Garrett. According to Lanier, on the morning
that the State was to use its strikes he had not yet made up
his mind to remove Garrett. Rather, he decided to strike her
only after learning that he would not need to use a strike on
another black prospective juror, Shirley Powell, who was
excused for cause that morning.
Lanier did strike Garrett. In justifying that strike to the
trial court, he articulated a laundry list of reasons.
Specifically, Lanier objected to Garrett because she: (1)
worked with disadvantaged youth in her job as a teacher's
aide; (2) kept looking at the ground during voir
dire; (3) gave short and curt answers during voir
dire; (4) appeared nervous; (5) was too young; (6)
misrepresented her familiarity with the location of the
crime; (7) failed to disclose that her cousin had been
arrested on a drug charge; (8) was divorced; (9) had two
children and two jobs; (10) was asked few questions by the
defense; and (11) did not ask to be excused from jury
service. See App. 55– 57 (pretrial hearing);
id., at 93–98, 105, 108, 110–112 (new
trial hearing); Record in No. 45609 (Ga. 1988), pp.
439– 440 (hereinafter Trial Record) (brief in
opposition to new trial).
trial court accepted Lanier's justifications, concluding
that "[i]n the totality of circumstances, " there
was "no discriminatory intent, and that there existed
reasonably clear, specific, and legitimate reasons" for
the strike. App. 143. On their face, Lanier's
justifications for the strike seem reasonable enough. Our
independent examination of the record, however, reveals that
much of the reasoning provided by Lanier has no grounding in
misrepresentations to the trial court began with an elaborate
explanation of how he ultimately came to strike Garrett:
"[T]he prosecution considered this juror [to have] the
most potential to choose from out of the four remaining
blacks in the 42 [member] panel venire. However, a system of
events took place on the morning of jury selection that
caused the excusal of this juror. The [S]tate had, in his
jury notes, listed this juror as questionable. The
four negative challenges were allocated for Hardge, Hood,
Turner and Powell. . . . But on the morning of jury
selection, Juror Powell was excused for cause with no
objections by [d]efense counsel. She was replaced by Juror
Cadle [who] was acceptable to the State. This left the State
with an additional strike it had not anticipated or
allocated. Consequently, the State had to choose between
[white] Juror Blackmon or Juror Garrett, the only two
questionable jurors the State had left on the
list." Trial Record 438–440 (brief in opposition
to new trial) (emphasis added and citations omitted).
then offered an extensive list of reasons for striking
Garrett and explained that "[t]hese factors, with no
reference to race, were considered by the prosecutor in this
particular case to result in a juror less desirable from the