But despite a sympathetic reception when the case finally reached the United States supreme court after 29 years, Foster’s appeal risked immediate collapse when chief justice John Roberts surprised court-watchers by questioning whether he had the power to order a retrial in the case.
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“I think that the fact that there is such a laundry list suggests in and of itself that the court should…be suspect of the reasons”, Bright answered.
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”. Foster, a black man, was sentenced to death by an all-white jury.
“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. Foster lived in government housing, and about 90 percent of his neighbors were black.
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.
At the time of the trial, Garrett was 34. In this case, he contended, as the notes would subsequently show, the black prospective jurors were singled out, intensely investigated, and compared to each other, instead of to the whole jury pool.
“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.
While myriad sharp questions suggested a split court, the most persistent hammering came from liberal-leaning justices who suggested prosecutors systematically and improperly excluded African-American jurors from the panel that convicted Timothy Tyrone Foster of murder in 1987. That case hasn’t yet arrived, even though there’s an open invitation to bring one to the table. On Monday, his lawyer will speak before the Supreme Court to fight for his life, pointing to endemic racism in US jury selection and the death penalty.
In the notes, the name of each potential black juror was highlighted.
The names of the four African-American potential jurors were marked with the letter “B” and highlighted in green. The video features then-Assistant District Attorney Jack McMahon advising trainees that “young black women are very bad, maybe because they’re downtrodden on two respects… they’re women and they’re blacks”. No black jurors sat in Foster’s trial.
Ninety-five potential jurors were initially called for Foster’s trial.
“The evidence of racial motive by the prosecution in this racially charged capital case is extensive and undeniable”, Bright told the justices in court papers.
In asking the state’s lawyer, Deputy Attorney General Beth Burton, about the merits of the case, Justice Elena Kagan bluntly said at one point: “I’m just going to ask, isn’t this as clear a Batson violation as the court is going to see?”
If it is directed to the trial court, a further procedural issue was raised about whether the trial court’s rejection of Foster’s claim was made on an independent state law ground that the question of the race discrimination claim had already been heard.
ASSOCIATED PRESS Timothy T. Foster has been on Georgia’s death row for nearly three decades.
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. In another case, Purkett v. Elem, the Court’s majority declared in 1995 that a prosecutor’s reason for removing a potential juror of color need not be “a reason that makes sense” so long as that reason “does not deny equal protection”. “The documentary and testimonial evidence of former Cumberland County prosecutors showed that race was a critical part of their jury selection strategy”, Weeks said. Their occupation. Church affiliation. All of those, if believed by a judge, are perfectly permissible – even if in the prosecutor’s heart of hearts they’re no more than bullshit.
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But the other side is also prone to bullshit. She argued in the aftermath of Batson, prosecutors did not know what the new legal landscape would be so prosecutors wrote down everything they could to justify their strikes because they knew a Batson challenge would be coming.
