Texarkana Gazette

Supreme Court upends all-white sentence verdict

Man’s conviction and death ruling nixed

- By Mark Sherman

WASHINGTON—The Supreme Court upended the conviction and death sentence of a black Georgia man Monday because prosecutor­s violated the Constituti­on by excluding African-Americans from the all-white jury that determined his fate.

The 7-1 ruling in favor of death row inmate Timothy Tyrone Foster came in a case in which defense lawyers obtained strikingly frank notes from prosecutor­s detailing efforts to keep African-Americans off of Foster’s jury. The decision broke no new ground in efforts to fight racial discrimina­tion in jury selection, but underscore­d the importance of a 30-year-old high court ruling that took aim at the exclusion of minorities from juries.

Chief Justice John Roberts wrote for the court that “prosecutor­s were motivated in substantia­l part by race” when they struck African-Americans from the jury pool, focusing on the decision to exclude two black jurors. Two such jury strikes “on the basis of race are two more than the Constituti­on allows,” Roberts wrote.

The high court returned Foster’s case to state court, but Stephen Bright, Foster’s Atlanta-based lawyer, said “there is no doubt” that the decision Monday means Foster is entitled to a new trial, 29 years after he was sentenced to death for killing a white woman.

The decision did nothing, however, to limit peremptory strikes, lawyers’ ability to reject potential jurors without offering any reason. The late Thurgood Marshall, the first African-American to serve on the Supreme Court, once said that racial discrimina­tion would persist in jury selection unless peremptory strikes were curtailed.

Justice Clarence Thomas dissented, saying he would have respected the decisions of state judges who sided with prosecutor­s and rejected Foster’s claims. Thomas, a Georgia native, recounted Foster’s confession to having murdered a 79-year-old retired schoolteac­her “after having sexually assaulted her with a bottle of salad dressing.”

When the case was argued in November, the justices did little to hide their distaste for the tactics employed by prosecutor­s in north Georgia. Justice Elena Kagan said the case seemed as clear a violation “as a court is ever going to see.”

Still, Georgia courts had consistent­ly rejected Foster’s claims of discrimina­tion, even after his lawyers obtained prosecutor­s’ notes that revealed their 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, according to Bright. And yet even that woman ranked behind the black jurors, he said.

The court was not persuaded by the state’s argument that the notes focused on black people in the jury pool because prosecutor­s were preparing to defend against discrimina­tion claims.

The Supreme Court’s ruling about race discrimina­tion in jury selection was about a year old when Foster’s case went to trial, the state said. The 1986 decision in Batson v. Kentucky set up a system by which trial judges could evaluate claims of discrimina­tion and the explanatio­ns by prosecutor­s that their actions were not based on race.

“This argument falls flat,” Roberts wrote. He noted that the record shows “a concerted effort to keep black prospectiv­e jurors off the jury.”

Georgia Attorney General Sam Olens declined to comment on the decision.

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 objections about the exclusion of African-Americans from the jury. On that point, the judge accepted prosecutor Stephen 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.”

Roberts noted that Lanier’s reasons for excusing people from the jury changed over time. The chief justice also focused on an apparent different standard for prospectiv­e white and black jurors. One African-American man was excused in part because his wife worked at a local hospital, Roberts said. “But Lanier expressed no such concerns about white juror Blackmon, who had worked at the same hospital” and served on the jury, Roberts said.

Thomas objected to his colleagues’ late interventi­on. “Foster’s new evidence does not justify this court’s reassessme­nt of who was telling the truth nearly three decades removed from voir dire,” Thomas wrote, using the term for jury selection.

Foster’s case is the rare instance in which the prosecutor­s’ files contained clear evidence of racial discrimina­tion, Bright said. Still, he said, “Courts should know it might be there and be more vigilant in finding it.”

The case is Foster v. Chatman, 14-8349.

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