By Habib Olapade
Habib Olapade is a junior at Stanford University studying political science.
On November 22, 2014, at 3:26 pm Timothy Loehmann and Frank Garmback, two Cleveland police officers, responded to a 911 call about an African-American male brandishing what appeared to be a pistol in Cudell Commons Park.  In that same 911 call, the caller commented that the gun was “probably fake” because there was a plastic orange ring on the weapon’s exterior and that the male appeared “to be a juvenile.”  The woman working the dispatch, however, did not relay these pieces of important qualifying information to Lohemann and Garmback, and both officers proceeded to drive towards the Commons.  Four minutes later, the patrol car approached Tamir Rice. Rice reached for his ‘gun,’ and Loehmann fired two shots into Rice’s torso four seconds before the patrol car had even stopped, killing him. 
In the aftermath of the shooting, it was revealed that Rice was actually a twelve-year-old boy playing with a toy gun in a park, and every major news outlet not owned by Rupert Murdoch expressed outrage over the incident.  A Cleveland grand jury, however, deviated from the public’s overwhelming consensus on Loehmann’s criminal culpability, and decided that the evidence against the police officer did not even warrant a trial. 
Putting aside the question as to why the United States still uses grand juries when every other English speaking common law country has deemed them antiquated, the most depressing part about the Tamir Rice incident is not the grand jury return, but the fact that Rice’s family members were not the slightest bit surprised by the grand jury’s decision.  Given the outcomes of similar situations in the United States, however, their reaction is hardly illogical.
Every once in awhile, though, a rare case implicating an individual who is blatant about his or her racist motivations pops up. Foster v. Chatman, a case currently pending before the Supreme Court, fits this description.  As every first year law student who was taken a criminal procedure or constitutional law course knows, the first thing law professors teach about the Fourteenth Amendment, which prohibits intentional race discrimination, is that repeatedly using overt racial identifiers like ‘MAX-BLACK’ or just ‘BLACK’ when drawing a district map or picking a jury is a sure-fire way to get a lawyer’s action overturned in court.  Apparently, Stephen Lanier, a Georgia District Attorney, missed that lesson (and all of legal ethics) when he was earning his Juris Doctor. 
In August 1986, Timothy Foster, an African-American man, was charged with killing Queen White (no, this is not a typo), an elderly white woman, in Rome, Georgia.  At Foster’s capital trial the following year, Georgia prosecutors were presented with ninety-five jurors and were given the choice to strike nine individuals.  Lanier used five strikes to get rid of all the potential black jurors. The resulting trial was held in front of an all-white jury, and in his closing statement, Lanier urged the jury to impose the death sentence to “deter other people out there in the projects.” Lanier’s action is, surprisingly, perfectly legal, so long as he can prove that he did not strike the jurors solely because of their race. 
The available documents from the trial however, clearly indicate that race was the predominant motive behind the strikes. First, the prosecution identified all five black jurors by placing a large ‘B’ on top of their names, assigning a number between one and five to each black juror’s name on all its court records, and highlighting them in green. The prosecutor then wrote a memo during the voir dire proceedings that included this unambiguous suggestion: “If it comes down to having to pick one of the black jurors, [Marilyn] Garrett, might be okay.”  When he ultimately decided to strike Garrett, Lanier explained that it was because she was close to Foster in age and had a cousin who was arrested for a similar capital offense. However, it was later revealed that Lanier only learned about Garrett’s cousin after he took her off the list, that Garrett was close to ten years older than Foster, and that Garrett’s cousin only committed a minor drug offense that was not in any way comparable to first degree murder. 
More than thirty years after Foster’s death penalty case, the Supreme Court is finally getting ready to decide whether Georgia courts failed to recognize Lanier’s flagrant display of racial discrimination as such. If the lesson from the Tamir Rice scandal is that African-American families should not expect the police to protect them on most occasions, Foster v. Chatman at least provides and glimmer of hope and tells us that charges of racism will not be denied when perpetrators exercise a level of care that we would expect to see in a five-year-old.
 WEWS News Channel, "Tamir Rice Shooting - Cleveland Police Dispatch Radio." YouTube accessed February 26, 2016 https://www.youtube.com/watch?v=kqBqg43WN34. Elahe Izadi and Peter Holley, "Video shows Cleveland officer shooting 12-year-old Tamir Rice within seconds," THE WASHINGTON POST accessed February 26, 2016 https://www.washingtonpost.com/news/post-nation/wp/2014/11/26/officials-release-video-names-in-fatal-police-shooting-of-12-year-old-cleveland-boy/.
 Tamir Rice Shooting – Cleveland Police Dispatch Radio supra note 1.
 Associated Press, “Cleveland cop who killed 12-year-old Tamir Rice not told boy’s age, that gun might be fake,” DAILY NEWS (December 13, 2014). Nikki Ferrell, “Tamir Rice shooting: Officers were not told gun could be fake or that suspect was juvenile,” NEWS NET FIVE ABC CLEVELAND (November 24, 2014).
 Shaun King, “New lie in the shooting death of Tamir Rice discovered: Police never saw the tip of the gun at all,” DAILY KOS (December 4, 2014).
 Michele Richinick, “Video shows police shooting 12-year-old Tamir Rice upon arriving on scene,” MSNBC (November 26, 2014). Laura Ly and Jason Hanna, “Cleveland police's fatal shooting of Tamir Rice ruled a homicide,” CNN (December 12, 2014). Tony Dejak, “Tamir Rice's mom: "I'm looking for a conviction," CBSNEWS (December 8, 2014). ABC NEWS, “Officer Who Shot Tamir Rice, 12, Had 'Dismal' Handgun Record,” (December 4, 2014).
 Leah Donnella, “Must Read Reactions to Grand Jury Decision in Tamir Rice Case,” NPR (December 28, 2015).
 Paula Mejia, “Samaria Rice ‘Mad as Hell’ About Grand Jury Decision in Death of Son Tamir,” NEWSWEEK (January 2, 2016).
 “Foster v. Chatman,” SCOTUSblog, accessed March 8, 2016, http://www.scotusblog.com/case-files/cases/foster-v-humphrey/.
 Strauder v. West Virginia, 100 U.S. 303 (1880) available at https://www.oyez.org/cases/1850-1900/100us303. Miller v. Johnson, 515 U.S. 900 (1995) available at https://www.oyez.org/cases/1994/94-631.
 Alan Riquelmy, “Alabama Jury Awards Two Million Dollars To Convicted Murder,” ROME NEWS-TRIBUNE (April 5, 2014).
 Stephen Bright, Brief of Petitioner Timothy Tyrone Foster, avaialble at http://www.scotusblog.com/wp-content/uploads/2015/08/14-8349-ts.pdf.
 Ibid.  Washington v. Davis, 426 U.S. 229 (1976) available at https://www.oyez.org/cases/1975/74-1492.
 Supra note 20.
Photo Credit: Flickr User Joe Brusky
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