Supreme Court takes up racial bias in jury selection case

Timothy Foster has spent nearly 30 years on Georgia's death row. On Monday his lawyer will speak before the Supreme Court to fight for his life, pointing to endemic racism in U.S. jury selection and application of the death penalty.

Foster, who is black, was charged with the 1986 murder of a white woman, Queen White.

The prosecutor in the case removed all black potential jurors and called for a death sentence to "deter other people out there in the projects," referring to public housing.

During court proceedings, Foster obtained previously withheld notes from the prosecution showing prosecutors had highlighted the names of potential jurors who were black and marked them with a B.

On separate juror questionnaires, the word "black" was circled next to the "race" question.

"It was clear that the priority of the prosecutor was to strike the blacks," said Foster's lawyer Stephen Bright.

In a brief filed to the court, Bright said "the evidence clearly establishes purposeful discrimination by the prosecution in securing an all-white jury" in order to obtain a death sentence and thus teach a lesson to "people out there in the projects."

A psychiatrist also testified at trial that Foster was "in the borderline range for intellectual disability," with IQ scores ranging from 58 to 80 throughout his life. (An IQ score of 100 is considered average; having a score below 70 is considered an indication of mental disability.)

And he is one of about 42 percent of death row inmates who are black, according to the NAACP. African-Americans make up 12 percent of the U.S. population of 319 million.

In the end, Foster was unanimously found guilty by a jury of 12 whites.

The Supreme Court has strictly prohibited jury selection decisions on the basis of race, in various decisions.

"This is not a problem that has gone away. This is not a problem that is limited to the Deep South," said Christina Swarns, an expert on issues of race and criminal justice at the NAACP. "This problem really persists throughout the country.”

"In most instances, there are no consequences whatsoever to a prosecutor who engages in jury discrimination in jury selection," she added.

A study recently conducted in Caddo Parish, Louisiana, showed that black people are three times as likely as whites to be struck from jury selection.

Swarns pointed to several studies showing that "diverse juries are far more thorough and effective than all-white juries" and make fewer factual errors.

The ability to strike a juror has its roots in British law to protect the accused from the monarchy. This right has since been extended to prosecutors, who are well aware that white juries are more severe than multiethnic juries and that minorities are less inclined to back the death penalty.

An initial stage of jury selection is a long written questionnaire that is supposed to disqualify biased individuals.

"In many jurisdictions, you get more peremptory challenges in capital cases than in other cases, so the combination of disqualification and peremptory challenges disproportionately affects jurors of color," said Robert Dunham, the executive director of the Death Penalty Information Center.

As a result, defendants facing trial in cities with large black minorities often face all-white juries.

And Foster's case comes before the highest jurisdiction in the land amid major soul searching in the United States about racism and police brutality after a string of deadly incidents involving law enforcement and black Americans.

"Given that we have these very high-profile, racially charged cases going into courtrooms and possibly to juries, it's critically important that we have a process that incorporates all qualified citizens," said Swarns.

Agence France-Presse