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  • Writer's pictureMario Nicolais

Race and justice

Updated: Jun 3, 2020

The 7-1 Supreme Court decision in Foster v. Chatman shed light on underlying and pervasive racial tensions that plague our justice system. Nearly 20 years after Timothy Foster’s conviction and death sentence, prosecutors’ recently released notes reveal race played a part in his jury selection. Foster is African-American, and prosecutors systematically challenged potential voters who were black, leading to an all-white jury.

While the Supreme Court ruled three decades ago that such racial motivation in jury selection is impermissible, the practice nonetheless persists. Whether driven by overt racism or the subtler form of racism driving by a prosecutor seeking any advantage in court, the end result is the same. The jury system designed to put defendants before a panel of their peers is undermined. In turn, the entire criminal justice system based on juries cracks.

Foster will not go free based on this opinion. But he will have a new day in court. The decision allows Foster to request a new trial with a new jury, one unblemished by racial undertones. While he does not have a right to a jury of his own race, he has a right to one where jurors are not automatically challenged and dismissed only because they share his skin color.

On a broader scale, this case highlights a serious problem often swept under the carpet: subtle, systematic racial division. Failure to deal with this problem, or even to identify it, leads to headline flashpoints after incidents such as the death of Trayvon Martin or riots in Ferguson, Missouri. The angst and suspicion engendered by slow-fuse racial division eventually boils over into blind rage.

Much of the problem arises due to a failure to differentiate between systematic racial division and overt racism. The former is hard to explain and must be put in terms of statistical analysis and study. It is meant to view large-scale patterns across whole systems. The latter is more immediate and visceral. It focuses on individual people, actions and anecdotes. It also makes for easier, sexier media coverage that appeals directly to emotions. That’s why a story about a white supremacist on Donald Trump’s delegate list or the presumptive Republican nominee’s failure to immediately condemn David Duke gets so much more coverage than the divisive housing policies his companies adopted.

Several years ago I tried to emphasize this very difference to a reporter who asked about a political mail piece sent by a client of mine. The reporter quoted me as saying “we’re beyond the time when there are out-and-out racists” — but omitted the rest of the sentence or contextual analysis. I actually said that we were beyond out-and-out racists sending racist political mailers. This is true for many reasons, including the near certainty that such mailers are more likely to coalesce far more opposition than support. As I told the reporter, in addition to being morally repugnant, it would be just plain stupid.

More concerning and far, far more pervasive is systemic racial division. It can be spurred on unwittingly by any side and helps to keep all sides from finding common ground and understanding. Generally, it is a secondary effect as opposed to the primary driver. Consequently, while the motive of a prosecutor could be winning a conviction, and consequently he or she picks a jury that will make that most likely, the effect is to divide jurors by race and exclude whole categories. The prosecutor doesn’t need to be racist to foment such racial division.

Let’s hope the little light shone on a big problem by the Supreme Court will encourage a much-needed public inspection of racial division in the criminal justice system sooner than later.

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