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.