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When the Supreme Court delivered its ruling in Foster v Chatman, the court described the actions of the prosecutors as being “motivated in substantial part by race” when they struck two potential jurors from hearing the capital murder case against Timothy Foster. This phenomenon of open and explicit racial intolerance is unfortunately still in existence thirty years after Foster first went to trial. What the Court failed to acknowledge was how new attitudes of exclusion are less intentional today and more nuanced, implicit, and rationalized. Black defendant’s in 2016 face prosecutors who are less engaged in open discrimination but more likely impacted by their own implicit beliefs and comforted by false rationalizations of racial tolerance. The Foster ruling disregarded the new face of exclusion while it engaged in the relatively simple task (aided by a cache of records) of combating a detectable case of intentional racism in jury selection. A new standard to replace Batson is suggested in this essay.

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Iowa Law Review Online