Supreme Court weighs racial discrimination in jury selection

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• JUDY WOODRUFF:

  And now we turn to the Supreme Court, where justices heard arguments in a death penalty case out of Georgia that deals with race discrimination in the selection of jurors.

  We begin our coverage of that case with a version of a report that originally aired on the PBS program Religion & Ethics Newsweekly.

  Correspondent Tim O'Brien has the story.

• TIM O’BRIEN:

  It was in 1986 in Rome, Georgia. Seventy-nine-year-old Queen White had just returned home from choir practice to confront a burglar who would take her life.

  Prosecutors said it was this man — Timothy Foster — 18 years old at the time.

  Down at the Floyd County Courthouse, over the vehement objections of defense lawyers, prosecutors excused all African-Americans from the jury pool. Foster would be tried, convicted, and sentenced to die by an all-white jury.

  The U.S. Supreme Court had ruled only four months before this crime was committed that while lawyers have wide latitude in selecting juries and may even excuse some prospective jurors without having to explain why, race can never be a factor. Should it appear that race is the motive, the attorney must be able to provide race-neutral reasons.

  STEPHEN BRIGHT, Southern Center for Human Rights: The reasons given here — some were false. They just simply weren't true. Some were contradictory. In fact, on their lists of people who they were definitely going to strike, the five African-Americans were the first five listed. And there was only one other person on the list, and it was a white woman.

• TIM O’BRIEN:

  Stephen Bright runs the Southern Center for Human Rights in Atlanta and will argue Foster's case before the Supreme Court. Proving jurors were removed because of their race can be difficult, but lawyers at the Center say they have come up with some persuasive new evidence.

• STEPHEN BRIGHT:

  In the prosecutor's files, they had listed — they race-coded and color-coded all the black people in the lists of the jurors.

  They had compared the black jurors against each other in the notes, saying, "If we have to accept a black, maybe this one would be OK," which suggests the goal was to get rid of all the blacks. And so it all points pretty much in one direction, which is race.

• TIM O’BRIEN:

  A 10-year study of 332 criminal cases in Louisiana found that when there were at least three blacks on the jury, 12 percent of the defendants were acquitted; the acquittal rate rose to 19 percent with five or more black jurors, and no one was acquitted in the study when there were two or fewer black jurors. In all three groups, the defendants were overwhelmingly black.

  Kent Scheidegger is legal director of the Criminal Justice Legal Foundation, victims' rights group that supports capital punishment, and Scheidegger says the fact that prosecutors kept notes on the race of the jurors doesn't prove racial discrimination, but rather may help to refute it.

• KENT SCHEIDEGGER, Criminal Justice Legal Foundation:

  The fact that you keep track of the race of the jurors as you go through the process is not at all suspicious. In order to defend yourself against the charges of discrimination, you have to keep track. That's why every time we apply for a loan, or a job, or school admission, we're asked to specify our race, and that's all they were doing in this case.

• STEPHEN BRIGHT:

  If all you wanted was to know information about the black jurors, you wouldn't write things like, "If we have to accept a black, maybe this one will be OK."

• TIM O’BRIEN:

  You want his conviction set aside.

• KENT SCHEIDEGGER:

  Right.

• TIM O’BRIEN:

  But what more than that? What do you want the court to say?

• STEPHEN BRIGHT:

  One of the things that I hope at the very least will come out of this case is that the court will require the reasons given be scrutinized much more carefully than they were in this case.

• TIM O’BRIEN:

  Significantly, last June, two justices formally urged the court to reconsider whether the United States is even capable of administering capital punishment in a constitutional manner.

  The justices, Stephen Breyer, joined by Ruth Bader Ginsburg, noted that the risk of executing an innocent person remains great, that factors such as race, gender, and geography make the death penalty arbitrary, that the decades-long delays between sentence and execution defeat the goals of deterrence and retribution, and that both death sentences and actual executions are becoming increasingly unusual — down almost 70 percent in the last 15 years.

• STEPHEN BREYER, Associate Justice, U.S. Supreme Court:

  I recognize that we are a court, not a legislature, but the matters that I have discussed are judicial matters. They concern the infliction of an unfair, cruel, and unusual punishment upon individuals at odds with a specific constraint that the Constitution imposes on the democratic process."

• TIM O’BRIEN:

  The country appears to be slowly, but inexorably, moving away from capital punishment. If so, the U.S. Supreme Court may not be too far behind.

• JUDY WOODRUFF:

  The justices also heard a case looking at the issue of online privacy.

  For more on both cases, we turn to Marcia Coyle of "The National Law Journal," who was at the Supreme Court today.

  So, welcome back, Marcia.

• MARCIA COYLE, The National Law Journal:

  Thank you.

• JUDY WOODRUFF:

  Let's talk first about the all-white jury case. How important is it that the lawyers of this accused man, Timothy Foster, were able to get ahold of those original notes made by the prosecutor back in 1987?

• MARCIA COYLE:

  Well, Judy, I think how the justices view the notes is really crucial to Mr. Foster's chance of getting a new trial.

  If the justices see race discrimination in those notes, that is a violation of the 14th Amendment, and he will get a new trial.

• JUDY WOODRUFF:

  So tell us about the arguments before the court today.

• MARCIA COYLE:

  Sure.

  During the arguments, Mr. Foster's attorney, Steve Bright, argued that the notes represented an arsenal of smoking guns that were designed clearly to separate the African-American prospective jurors and to treat them differently.

  Justice Kagan asked Georgia's attorney why this wasn't as clear violation of the court's 1986 decision as the court was ever likely to see. And Georgia's attorney said, well, really, the notes can be viewed in two ways. They could be viewed as the prosecutors' preparation to defend against the claim of racial discrimination.

  Justice Breyer said that was hard to believe because that reason, he said, was never given by the prosecutor until the case actually came to the Supreme Court. So it appeared that there were a number of justices sympathetic to Mr. Foster's claim.

• JUDY WOODRUFF:

  So, the justices would push back when the lawyers for the state of Georgia made that argument?

• MARCIA COYLE:

  That's right.

  I should mention, Judy, that there is a possibility that the court will not reach the merits here. There is a procedural problem with the case that came up very late, and the case may have to go back to the Georgia Supreme Court for some clarification.

• JUDY WOODRUFF:

  So, what we said earlier in the program about there being wider implications for this case, that really does on what the — how the justices choose to look at this.

• MARCIA COYLE:

  It does absolutely. It could be narrow, focused solely on Mr. Foster's case.

  But even if he wins, and it is narrow, it sends a message, I think, to other courts to look at these kinds of claims very carefully. In 1986, Justice Thurgood Marshall wrote separately in the case to say that the Batson rule here that was announced by the court in '86 wasn't likely to end race discrimination in jury selection. The only way to end it was to eliminate discretionary jury strikes.

  There doesn't seem to be much sympathy for that.

• JUDY WOODRUFF:

  Well, let's talk now about this other case the justices heard today. This had to do with incorrect information on a search engine about somebody on the Internet and whether this constituted real harm done to this person. Tell us about the core of this case.

• MARCIA COYLE:

  OK.

  Well, Spokeo is a — calls itself a people search engine. It collects information on individuals, and that information is used in credit reports and for other purposes. Tom Robins, he searched for his name on Spokeo, and, frankly, the information there was a mess. They got wrong his age, his marital status, his education, his employment, whether he had children.

• JUDY WOODRUFF:

  Just about everything.

• MARCIA COYLE:

  Just about everything.

  So, the Fair Credit Reporting Act imposes a series of regulatory requirements on credit reporting agencies. Congress passed it to ensure maximum accuracy in the reporting of this information. And it provides limited damages if the act is violated, either negligently or willfully.

  Mr. Robins went to court. He wanted to prove violation. He wanted to form a class action of other people who had suffered similarly. He didn't get very far because the trial court, at least, dismissed his case saying you have to show, under the Constitution's Article 3, actual harm, actual injury, concrete injury, and you didn't.

  The Ninth Circuit Court of Appeals reversed, said that just the violation of the statute alone is enough for you to have standing, the right to go into federal court. That's the issue before the court. Is it enough to just find a violation of the statute, or do you have to show something more?

• JUDY WOODRUFF:

  So, just quickly, what were the justices saying today? What could you tell from their conversation?

• MARCIA COYLE:

  It appears they are divided.

  You had justices like Justices Kagan and Sotomayor saying, look, if somebody disseminates false information about me, I would feel harmed, and if you took a survey of people, they would probably feel harmed as well. That should be enough, isn't it?

  Well, Spokeo's attorney counters, no, you do — Congress has to clearly state that it's supplanting the Constitution's rule of a concrete injury. Chief Justice Roberts seemed to agree with that, saying, we have legions of cases that require a concrete injury, not just a violation of the statute.

  So they appeared divided, Judy. It's a very important case. It's being closely watched by the business community, the tech companies, Internet service, right.

• MARCIA COYLE:

  And on the other side, it's being closely watched by privacy organizations, civil rights groups, consumer groups.

  It may affect not only this statute, the Fair Credit Reporting Act, but similar laws that have an outright violation of a statute allowing an action for damages.

• JUDY WOODRUFF:

  Marcia Coyle, spending much of this day with the Supreme Court.

• MARCIA COYLE:

  And more to come.

• JUDY WOODRUFF:

  And much more to come. Thank you, Marcia.

• MARCIA COYLE:

  My pleasure, Judy.