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Supreme Court Questions How To Handle Jury Selection Discrimination Case

Questions of procedure bogged down nearly half of the hour-long arguments.

Posted on November 2, 2015, at 1:25 p.m. ET

Carolyn Kaster / AP

WASHINGTON — While hearing a case about whether prosecutors discriminated against a black defendant by impermissibly rejecting black jurors from his death penalty trial, Supreme Court justices spent nearly half of the hour-long argument debating procedural questions that could lead the court to avoid a decision on the discrimination question.

The court heard the case of Timothy Tyrone Foster on Monday morning, and spent much of their time not on debating whether prospective black jurors were wrongly kept off Foster's jury (in violation of an earlier court decision), but rather on winding discussions of what could seem like insignificant procedural minutiae.

The procedural question ultimately boils down to which lower court the U.S. Supreme Court will address when (or if) it issues a decision in the case — the Georgia Supreme Court or the trial court. To answer that question, the justices must determine 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. If it was a merits decision, cert goes to them. If it was discretionary, cert goes to trial court.

The possibility was raised that the question should be sent to the Georgia Supreme Court to issue a definitive interpretation of its state law on the matter.

If it is directed to the trial court, a further procedural issue was raised about whether the trial court's rejection of Foster's claim was made on an independent state law ground that the question of the race discrimination claim had already been heard. If it was an independent state law ground, that would mean the U.S. Supreme Court had no basis for taking up the case at all.

Lawyers had prepared for arguments on the merits of the claim relating to notes made public years after Foster's trial -- notes that provided several examples of the prosecutor's office focusing on potential black jurors within the jury pool — all of whom were rejected for Foster's jury. The notes were released under a public records request. One note, for example, listed the jurors the prosecutors would definitely want off the jury: The first five were the potential black jurors, the final name was a non-black person who had expressed an unwillingness to vote for a death sentence.

Under a 1986 U.S. Supreme Court decision, Batson v. Kentucky, jurors of the defendant's race cannot be rejected from his or her jury because of their race.

In asking the state's lawyer, Deputy Attorney General Beth Burton, about the merits of the case, Justice Elena Kagan bluntly said at one point: "I'm just going to ask, isn't this as clear a Batson violation as the court is going to see?"

Burton, unsurprisingly, said it was not.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.