The Champion

January-February 2017 , Page 40 

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How Foster Can Be Useful to Defense Attorneys

By Nina W. Chernoff

Anticlimactic might be the best way to describe the Supreme Court’s May 2016 decision in Foster v. Chatman.1 After all, Foster reaffirmed that the government may not exclude black people from the jury because they are black — as has been true since 1880.2 And Foster stands for the unremarkable principle that, under Batsonv. Kentucky,3 a prosecutor’s purported race-neutral reasons for strikes will not be credited when the prosecutor’s own file notes demonstrate “a concerted effort to keep black prospective jurors off the jury.”4 

But Foster has the potential to do more than remind us that Batsonv. Kentucky is still good law. The opinion can be useful to criminal defense attorneys and those working for justice system reform because it (1) models the intense scrutiny courts must apply to a prosecutor’s race-neutral explanations for peremptory strikes; (2) acknowledges the influence of race on decision-making in the justice system; (3) highlights the ongoing threat of prosec

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