Timothy Tyrone Foster is a black defendant, who was charged with killing an elderly white woman, Queen Madge White. The U.S. Supreme Court will consider whether prosecutors improperly excluded potential black jurors.
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Jury selection is done according to a set of rules. Prospective jurors are usually questioned by both prosecution and defense lawyers and then winnowed down in two different ways. First, the judge removes, “for cause”, those jurors deemed incapable of being impartial.
In 1986, the Supreme Court added a third step in a case called Batson v. Kentucky.
Striking jurors based on race or gender is illegal, explained WABE legal analyst Page Pate, but he said lawyers often say they’re eliminating a juror for one reason, while the real reason is probably race.
A year before Foster’s trial, the Supreme Court had decided that excluding potential jurors due to their race would violate the equal protection clause of the Fourteenth Amendment.
Prosecutor Stephen Lanier’s meaning was unmistakable when he urged jurors in north Georgia to sentence the defendant to death in part to deter other people “out there in the projects”.
A 2012 study of jury selection in 173 capital trials in North Carolina found that prosecutors struck almost 53 percent of potential jurors who were black, but only 26 percent of all other potential jurors. However, it is not uncommon for a lawyer to reserve issuing a challenge under Batson because in addition to the motivations behind a pre-emptory strike being hard to establish, there is also the apprehension of the unknown. But years later, as Foster’s lawyers examined notes made by prosecutors during jury selection, they made a discovery: names of black members of the jury pool had been highlighted in green and labeled “B#1”, “B#2”, and “B#3”. The defense cried foul, but the trial judge and every appellate court after that, including the Georgia Supreme Court, accepted the non-racial reasons. There is a list of six “definite no’s” -the top five are black. These justifications included things like “failure to make eye contact”, looking “bored”, being “divorced”, or “a social worker”, and so on. He went through the prosecution team’s notes, and he said he found blatant discrimination in them. They also marked those names with a letter “B”, and circled the world “BLACK” on jurors’ completed questionnaires. Foster lived in government housing, and about 90 percent of his neighbors were black. “They could say a member of that juror’s family was convicted of a crime. They didn’t, of course, take either one of those”.
Bright contends the State of Georgia continues to change its story about the justifications.
Eddie Hood was “B(hash)1” in the prosecutors’ notes.
Since then, “prosecutors have become pretty adept at paying attention to the reasons they can give that are not race-related”, says Tim Cole, the former district attorney of Montague County, Texas, (and now an opponent of the death penalty).
In fact, the Church of Christ took no position on the death penalty; the prosecution notes reflect that, and Hood testified that he could vote for the death penalty.
Then there was prospective juror Marilyn Garrett. For example, the prosecution said one reason it struck a 34-year-old black woman was that she was near the age of Foster. Foster’s lawyers are seeking a new trial.
Because Foster’s trial occurred just months after the Court’s decision in Batson, mandating an entirely new regime for judging peremptory strikes, prosecutors have sought to show that their team at the trial had little opportunity to prepare for handling the new system.
The state of Georgia refused to provide anyone to be interviewed for this story. Prosecutors can say they struck a juror because the juror had a son about the same age as the defendant or because the juror was uncommunicative and never cracked a smile, he said. The Georgia Supreme Court later agreed that prosecutors fully investigated all of the prospective jurors and that these reasons were sufficiently “race-neutral”.
No briefs have been filed in support of the state’s position in the case. On Monday, his lawyer will appear before the Supreme Court to fight for his life.
They point to study after study showing that when it comes to getting rid of racial discrimination, the current system doesn’t work. He said the notes “are not evidence of the state’s intention to engage in purposeful discrimination as alleged by Foster”.
“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. It showed that African Americans were more than twice as likely than whites to be removed by prosecutors during jury selection.
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In Alabama’s Houston County, 8 of 10 African Americans eligible to serve on a jury in death penalty cases were excluded by prosecutors, researchers found. That meant that half of the capital cases in that county were heard by all-white juries, and the rest had only a single African American on the panel – in a county that is 27 percent African-American, according to the study.
