Timothy Foster was convicted and sentenced to death in Georgia in 1987 for the murder of Queen Madge White. Foster is African American; White was caucasian. The jury the convicted Foster and sent him to die was all white. 

That was apparently by design. Georgia prosecutors used their peremptory challenge to strike each and every person of color from the jury. But for notes they kept during trial, notes recovered long after Foster's conviction, we'd never have proof that prosecutors deliberately sought to keep black folk off the jury.

The use of race in exercising peremptory challenges is unlawful. In 1986, the U.S. Supreme Court said so explicitly, in the case of Batson v. Kentucky. Race cannot be the reason to strike a juror from service.

But how to enforce that lofty rule?

A party that suspects his adversary of racial bias in the use of peremptories must first persuade a judge that there has been a prima facie pattern of discrimination. Thus, the first juror or two struck for suspicious reasons is virtually unreviewable—you can't make a pattern out of one instance.

Once a pattern has been established, the court is supposed to require the challenged party to offer a racially neutral explanation for the use of challenges. The reasons offered can be threadbare, even ridiculous, so long as they are racially neutral. Thus, the cases have supported striking jurors for failing to make eye contact, because they wore beards, or other seemingly small things.

I've raised Batson challenges in several cases. Uniformly, the prosecutors challenged express something akin to outrage. How dare I suggest that they might be engaged in racial gerrymandering?

The reaction of most judges is not much better. There is a resigned reluctance to hold a Batson hearing. Some judges adopt pained "do-we-have-to-do-this-counsel?" looks on their faces. As though the task of scrutinizing a prosecutor was somehow beyond their ken.

I have difficulty recalling a case in which a judge found the reasons offered by a prosecutor for striking a juror on account of race or gender, which is also prohibited, to be pretextual. Batson challenges are empty challenges.

In the Foster case, prosecutors offered the usual drivel for striking black folk: some were incoherent, some hostile; several didn't look prosecutors in the eye. The trial court blithely accepted the reasons offered.

Try as it might, the U.S. Supreme Court will not be able to create a foolproof method of putting teeth into Batson challenges. Our system of justice depends on the integrity of the participants. Lawyers are not just advocates, they are officers of the court.

Some have called for the elimination of peremptory challenges. I won't go that far, although I can see the temptation when a case like Foster comes along. It's obvious from the prosecutor's notes that black folk weren't welcome on that jury. Each black juror was identified by race, and a fallback strategy concocted to identify the least objectionable person of color, just in case a black person had to be accepted.

The Foster case teaches that we still don't get it right on matters of race in the courts. It also teaches that we may never get it right. We're a long way from being a color-blind society. Indeed, the emergence of identity politics and claims of racial privilege and counter-privilege suggest we don't really want colorblindness. •