Supreme Court Relies on Attorney Notes in Considering a Claim of Racial Profiling in Juror Selection

Supreme Court Relies on Attorney Notes in Considering a Claim of Racial Profiling in Juror Selection

On May 23, 2016, in Foster v. Chatman, No. 14-8349, the U.S. Supreme Court clarified how courts should address Batson claims of unlawful discrimination during juror selection and highlighted the role that notes in an attorney's files may play in these inquiries.


A Georgia jury convicted Timothy Foster of murder and sentenced him to death. During jury selection, the prosecution used peremptory challenges to strike the black jurors remaining in the jury pool. After his conviction, Foster used Georgia's Open Record Act to obtain the prosecution's file, which contained, among other things, a copy of the jury venire list, in which each black prospective juror's name was highlighted and had a "B" next to it, and handwritten notes referring to black prospective jurors as "B#1," "B#2," and "B#3." Foster raised a Batson claim, which the state habeas court denied. The Georgia Supreme Court denied review.

The Opinion

After reviewing the record, the Supreme Court was "left with the firm conviction" that the peremptory challenges were motivated by discriminatory intent, requiring reversal of the Georgia Supreme Court's denial of relief. For example, the proffered bases for challenging black panelists were not applied to white panelists seated on the jury, the prosecutor had shifting explanations for his challenges, and the prosecutor's notes showed a persistent focus on race.

Implications and Takeaways

As Batson applies to both civil and criminal litigation, all attorneys must be aware that their notes, and the notes of non-attorneys on their trial team, can play a significant role in a Batson inquiry. While work-product protections generally shield such notes from disclosure, there are limitations to this rule. Additionally, attorneys should be cognizant that Batson has been extended to challenges based solely upon gender and by at least one federal appellate court to challenges based on sexual orientation.

Lawyer Contacts

For further information, please contact your principal Firm representative or one of the lawyers listed below. General email messages may be sent using our "Contact Us" form, which can be found at

Bradley W. Harrison

José A. Isasi II

C. Kevin Marshall

Charles R.A. Morse
New York

Neil Vakharia, an associate in the Cleveland Office, assisted in the preparation of this Alert. 

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