Skeptical Supreme Court justices on Monday raised serious doubts about how Georgia prosecutors secured an all-white jury in a decades-old death penalty case.
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.
Foster, who was 18 at the time of the crime, is African-American. The victim, a 79-year-old retired elementary school teacher from Rome, Ga., was white. The prosecutors used challenges to eliminate African-Americans from the jury pool.
“All of the evidence seems to suggest a kind of singling-out,” Justice Elena Kagan told Georgia’s Deputy Attorney General Beth A. Burton. “Isn’t this as clear a...violation as we’re ever going to see?”
Justice Stephen Breyer added that “many” of the trial prosecutor’s stated reasons for challenging African-American jurors were “self-contradictory, obviously not applicable.” Justice Anthony Kennedy, a frequent swing vote, added flatly that the prosecutors were “wrong” and had “made a mistake.”
If this court, as it said so many times, is engaged in unceasing efforts to end race discrimination in the criminal courts, then (jury) strikes motivated by race cannot be tolerable.
Defense attorney Stephen B. Bright.
Foster ‘s IQ test scores, according to defense attorneys, put him “in the borderline range for intellectual disability.” In August 1986, while intoxicated on alcohol, marijuana and cocaine, he broke into the home of Queen Madge White, a widow who had just returned from choir practice.
Foster broke White’s jaw, sexually molested her and strangled her to death, prior to stealing items from her home. Foster’s live-in girlfriend reported him to the police, and he subsequently confessed to law enforcement.
Ninety-five potential jurors were initially called for Foster’s trial. Ten were African-American. Defense attorneys and prosecutors led by Floyd County District Attorney Stephen Lanier each could eliminate potential jurors for “cause,” such as a known bias. Each also had a limited number of “peremptory” challenges, for which no reason had to be initially given.
“The prosecutors in this case came to court on the morning of jury selection determined to strike all the black prospective jurors,” Foster’s attorney Stephen B. Bright, president of the Atlanta-based Southern Center for Human Rights, told justices Monday.
The Supreme Court, in an earlier decision involving a Kentucky burglary case, prohibited using peremptory challenges to eliminate jurors on the basis of race. Proving a racial motive can be complicated, as attorneys manage to concoct other reasons for their peremptory challenge.
Eventually, the jury pool in Foster’s case was narrowed to include four African-Americans. Prosecutors used their peremptory challenges to eliminate them all, while insisting that they had numerous tactical reasons other than race.
“There was a laundry list,” Burton said Monday, adding the trial prosecutor was “just espousing every reason he had.”
Several justices Monday, though, all-but declared they distrusted the trial prosecutor’s stated reasons for striking the African-American jurors. Prosecutors, for instance, failed to ask the potential jurors about areas of supposed concern.
“Doesn’t that show pretext?” Justice Sonia Sotomayor asked Burton.
Most significantly, prosecutors’ trial notes eventually obtained in 2006 through an open records request showed that the names of the African-American jury pool members were marked with a “B,” highlighted in green and included on a list titled “Definite NOs.”
“I think any reasonable person would look at this, and say his reason was a purpose to discriminate on the basis of race,” Breyer said.
Justice Clarence Thomas, following his customary practice, was the only one of the nine justices not to ask a question during the hour-long argument. A decision is expected by the time the court’s term ends next June.