The U.S. Supreme Court on Monday heard oral arguments in the case of Foster v. Chatman, which defense lawyers say lays bare the racism that can pervade the jury selection process as they argued on behalf of Timothy Foster, who was sentenced to death in 1987 by an all-white Georgia jury.

Attorneys from the Southern Center for Human Rights charged that the prosecutors in Foster’s case engaged in racial discrimination, saying that they had “extensive and undeniable” evidence that the prosecutors used their “peremptory strikes” to purge all four potential black jurors from the pool during the selection process.

In Georgia, each legal team is given ten such strikes, which allow a potential juror to be excused for any reason except race or gender, but attorneys say that this is often impossible to determine.

Notes from the trial obtained by Foster’s attorneys through a state open records law showed what they called “racially-coded” notes, including black jurors referred to as “B#1,” “B#2,” and “B#3.”

What’s more, Foster’s attorneys say the prosecutors then used racially charged language in the closing argument before his sentencing, telling the all-white panel that Foster should be sentenced to death for the murder of a white victim to “deter other people out there in the projects,” referring to the public housing projects in Rome, Georgia where Foster lived. More than 90 percent of the units in this neighborhood were occupied by black families. 

According to reporting on Monday’s Supreme Court hearing (pdf), the justices expressed skepticism over the prosecutor’s claims that the reasons given for excluding the black jurors were legitimate.

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McClatchy reports:

The Foster case revisits the Supreme Court’s 1986 ruling in the case of Batson v. Kentucky, which established a three-step process for testing complaints about race-based use of peremptory strikes. Consequently, much of the debate Monday centered on procedural issues, namely “whether the Georgia Supreme Court’s decision to reject Foster’s discrimination claim was a decision on the merits of that claim, or whether it was a discretionary decision not to hear it,” BuzzFeed reports.

A decision is expected by the end of the Court’s term next spring.

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