Supreme Court shows concern over alleged race bias in jury selection case

High court is considering whether black jurors were improperly excluded from trial of death row inmate Timothy Foster

Death row inmate Timothy Foster.
Georgia Department of Corrections / AP

Supreme Court justices signaled concern Monday over the actions of a Georgia prosecutor who disqualified all the black prospective jurors from the death penalty trial of a black teenager accused of killing an elderly white woman.

During opening arguments, at least six of the nine justices indicated that they believed black people were improperly singled out and kept off the jury.

Twelve white jurors eventually sentenced defendant Timothy Tyrone Foster to death in 1987 in the case, which the Supreme Court reviewed Monday.

Justice Elena Kagan said Foster's case seemed as clear a violation "as a court is ever going to see" of rules the Supreme Court laid out in 1986 to prevent racial discrimination in the selection of juries.

Foster could win a new trial if the Supreme Court rules his way. He has spent nearly 30 years on Georgia's death row for the 1986 murder of 79-year-old Queen Madge White in Rome, Georgia.

The justices' discussion Monday also suggested that a technical issue might prevent them from deciding the substance of Foster's case.

Georgia Deputy Attorney General Beth Burton had little support on the court for the proposition that prosecutor Stephen Lanier advanced plausible "race-neutral" reasons that resulted in an all-white jury for Foster's trial. 

Several justices noted that Lanier's reasons for excusing people from the jury changed over time, including the arrest of the cousin of one black juror. The record in the case indicates that Lanier learned of the arrest only after the jury had been seated. "That seems an out-and-out false statement," Justice Ruth Bader Ginsburg said.

Justice Samuel Alito, who typically sides with prosecutors in criminal cases, was bothered by Lanier's explanation that the same juror also was not chosen because she was close in age to Foster. "She was in her 30s. He was 18 or 19," Alito dryly said.

Georgia courts have consistently rejected Foster's claims of discrimination, even after his lawyers obtained the prosecution's notes that revealed prosecutors' focus on the black people in the jury pool. In one example, a handwritten note headed "Definite No's" listed six people, of whom five were the remaining black prospective jurors.

The sixth person on the list was a white woman who made clear she would never impose the death penalty, Foster's lawyer, Stephen Bright, said Monday. "Even she ranked behind the black jurors," Bright said.

Burton tried to persuade the justices that the notes focused on black people in the jury pool because prosecutors were preparing to defend against claims that they were improperly trying to avoid having black jurors. Burton said the Supreme Court's ruling about race discrimination in jury selection was about a year old when Foster's case went to trial. The 1986 decision set up a system by which trial judges could evaluate claims of discrimination and the race-neutral explanations by prosecutors.

Foster's trial lawyers did not so much contest his guilt as try to explain it as a product of a troubled childhood, drug abuse and mental illness. They also raised their objections about the exclusion of blacks from the jury. On that point, the judge accepted Lanier's explanations that factors other than race drove his decisions. The jury convicted Foster and sentenced him to death.

The jury issue was revived 19 years later, in 2006, when the state turned over the prosecution's notes in response to a request under Georgia's Open Records Act.

The name of each potential black juror was highlighted on four different copies of the jury list and the word "black" was circled next to the race question on questionnaires for the black prospective jurors. Three of the prospective black jurors were identified in notes as "B#1," "B#2," and "B#3."

An investigator working for the prosecutors also ranked the black prospective jurors against each other in case "it comes down to having to pick one of the black jurors."

Still, Georgia courts were not persuaded.

A decision in the case, Foster v. Chatman, is expected by late spring.

In addition to removing all black potential jurors, the prosecutor had also called for a death sentence to "deter other people out there in the projects," referring to public housing.

In a brief filed to the court, Foster's lawyer 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 had testified at trial that Foster was "in the borderline range for intellectual disability," his IQ scores ranging from just 58 to 80 throughout his life.

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

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

The Supreme Court has strictly prohibited jury selection decisions based on 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 more likely than whites to be struck out of jury selection.

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

Paradoxically, the ability to strike a juror has its roots in British law to protect the accused from the Crown.

This right has since been extended to prosecutors, who in turn are well aware that white juries are more severe than multi-ethnic juries, and that minorities are less inclined to back the death penalty.

An initial stage of jury selection is represented by a lengthy 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, executive director of the Death Penalty Information Center.

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

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 in to courtrooms and possibly to juries, it's critically important that we have a process that incorporates all qualified citizens," said Swarns.

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