In recent years, the Supreme Court has declined to look at the cases of Duane Buck (whose Texas jury was told by an expert witness that he was more likely to commit future crimes because of his race – Swarns is his lawyer) and Kenneth Fults (whose Georgia jury had one member who later said of the death sentence, “that’s what the nigger deserved”). Under Supreme Court rulings, only one reason need be valid.
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Mr. Foster’s case is of course more egregious and as Mr. Thompson puts it, it “offers a rare instance of extraordinary and well-documented misconduct”. It also arrives at a time of extreme distrust of the criminal justice system by minorities and increasing concern about the fairness of the death penalty.
“He broke her jaw, coated her face with talcum powder, sexually molested her with a salad dressing bottle, and strangled her to death, all before taking items from her home”, the Georgia brief states, deploying the kind of graphic detail often used by states defending a death sentence.
“The evidence of racial motive by the prosecution in this racially charged capital case is extensive and undeniable”, said Stephen Bright of the Southern Center for Human Rights in Atlanta.
Or ponder a psychiatrist’s testimony on Foster’s behalf, who found he “was in the borderline range for intellectual disability” – with an IQ range between 58 and 80 his entire life. The jury rejected it and voted for death anyway. Garret was 34, while Foster was 19 at the time. “Foster’s new evidence”, they write in their brief, “is perfectly consistent with conscientious, non-discriminatory prosecutors preparing to rebut a defense challenge to the array of the jury and a pretrial Batson challenge to any black prospective juror that may be peremptorily struck”.
“This problem really persists throughout the country”.
Foster v. Chatman has been styled that way because that’s how advocates chip away at the death penalty these days – by showing how it’s unconstitutionally stacked against a few defendants and not others.
On Monday, the U.S. Supreme Court will consider whether those are signs that Georgia prosecutors impermissibly based their jury selection choices on race, ending up with an all-white jury in the murder trial of a black man. Foster’s case highlights several issues in the wider debate over capital punishment, including questions about his mental capabilities and the length of time he has lived under a death sentence. That case hasn’t yet arrived, even though there’s an open invitation to bring one to the table.
If the Supreme Court decides that the reasons for dismissing black jurors were not justified or credible, the case could have a huge impact on the US judicial system, including a legal procedure referred to as the “Batson test”, which requires prosecutors to show nonracial reasons for eliminating a juror if a racial pattern can be found in the pre-emptory strikes. The courts continued to accept these non-racial justifications even after the defense in 2006 obtained the prosecutor’s jury selection notes.
Eddie Hood Hood was a potential juror in the murder trial of…
On Monday, the case arrives at the United States Supreme Court. The 7-2 decision in 1986 written by Justice Lewis Powell overruled the previous standard in Swainn v. Alabama where the court had recognized that a “State’s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause”, but left it to the defendant to prove a systematic striking of black jurors (a standard that the Foster case would seem to have met anyway).
ASSOCIATED PRESS Timothy T. Foster has been on Georgia’s death row for nearly three decades.
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.
Breyer claimed “any reasonable person looking at this” would agree that prosecutors were looking to “discriminate on the basis of race” when they removed all the black candidates from the jury. “… So it’s hard to believe that’s his real reason”.
He goes on to recommend avoiding older black women, too, as well as young black men, and all smart and well-educated prospective jurors. The prosecutor struck all four black citizens who were in the (group) from which the jury was selected. Whether they agreed with the death penalty.
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But the other side is also prone to bullshit. The record in the case indicates that Lanier learned of the arrest only after the jury had been seated. She argued they were tracking blacks in the jury pool because they knew their actions would be scrutinized later. Isn’t that unconstitutional, too?
