Courts & Crime

Georgia death row inmate’s case reaches Supreme Court

Georgia death-row inmate Timothy Tyrone Foster’s jury selection challenge comes before the U.S. Supreme Court on Monday, Nov. 2.
Georgia death-row inmate Timothy Tyrone Foster’s jury selection challenge comes before the U.S. Supreme Court on Monday, Nov. 2. Georgia Department of Corrections

A Georgia death-row inmate convicted of murder when he was a teenager is about to get a potentially life-saving chance to challenge how his jury was formed.

Timothy Tyrone Foster is African-American. The 12 Floyd County jurors who convicted him in 1987 were all white. On Monday, the Supreme Court will weigh whether prosecutors unfairly used race to tilt the jury selection.

The court’s ultimate decision may reach well beyond Foster, one of 85 Georgia inmates on death row. It could also shape how attorneys choose jurors, while giving a sharply divided court another chance to debate capital punishment.

“It’s going to be decided on the backdrop of the whole new disagreement at the court on the death penalty . . . and whether or not the death penalty has this inherent problem of racial discrimination, both in terms of who’s charged and how they’re tried,” noted attorney Paul Smith, a frequent Supreme Court advocate.

Underscoring the broader stakes, Foster will be represented at the hour-long oral argument Monday by noted attorney Stephen B. Bright, president of the Atlanta-based Southern Center for Human Rights and a longtime instructor at Yale Law School.

The evidence of racial motive by the prosecution in this racially charged capital case is extensive and undeniable. The prosecutor struck all four black citizens who were in the (group) from which the jury was selected.

Brief filed on behalf of Timothy Tyrone Foster

Foster’s other high-profile allies range from former California Attorney General John Van de Kamp, who filed a brief supporting the inmate, to novelist and former prosecutor Scott Turow.

“It’s very important for the criminal justice system, because it really exposes a lot of the cultural problems we’re facing today,” Rory Little, a professor at the University of California Hastings College of the Law, said Friday. “It could lead to an end to race-based strikes of jurors.”

Georgia’s deputy attorney general, Beth A. Burton, will be defending how the trial prosecutors weeded out unwanted jurors.

“The prosecution offered numerous race-neutral reasons for the peremptory strikes of the four black prospective jurors,” the Georgia brief asserted, adding that there was no “purposeful discrimination.”

The case called Foster v. Chatman centers on what Bright called, in one legal brief, certain “extraordinary circumstances.”

Foster was 18 years old in 1986, living in Rome, Ga. His IQ test scores, according to defense attorneys, put him “in the borderline range for intellectual disability.” One night that August, while intoxicated on a mix of alcohol, marijuana and cocaine, he broke into the home of a 79-year-old retired elementary schoolteacher named Queen Madge White.

“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.

Ninety-five potential jurors were initially called for Foster’s trial. Ten were African-American. Defense attorneys and prosecutors 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 Supreme Court, in an earlier decision involving a Kentucky burglary case, has prohibited using peremptory challenges to eliminate jurors on the basis of race. Proving a racial motive, though, can be tricky, as attorneys conjure other explanations for a peremptory challenge.

Eventually, the jury pool in Foster’s case was narrowed to include four African-American. Prosecutors used peremptory challenges to eliminate them all.

The trial court concluded that the ‘prosecutors involved undertook long and careful assessment based on many factors,’ which contributed to the court’s finding there was no purposeful discrimination in the strikes.

Brief filed on Georgia’s behalf

After Foster’s conviction, the district attorney asked for the death penalty, telling jurors it would “deter other people out there in the projects.” Nineteen years later, in 2006, Foster’s attorneys obtained the prosecutors’ notes about jury selection.

The names of the four African-American potential jurors were marked with the letter “B” and highlighted in green. An accompanying key explained that green highlighting “represents blacks.” Their race was also circled on the juror questionnaire.

“The exclusion of these citizens was not the product of ‘happenstance,’ but the result of the prosecution’s identification of them as black and its determination to keep them off the jury,” Foster’s attorneys wrote.

Prosecutors say otherwise; noting, for instance, that one potential juror had a son who had been prosecuted for theft, and another seemed to offer misleading answers to questions.

“An accurate assessment of this new evidence does not establish that the prosecutors were motivated by race to strike prospective jurors,” Georgia’s brief states.

Michael Doyle: 202-383-0006, @MichaelDoyle10