Supreme Court Holds Georgia Prosecutors Illegally Removed Black Jurors in Death Penalty Case


Today, the United States Supreme Court reversed Timothy Foster’s conviction and death sentence, holding that Georgia prosecutors illegally barred African Americans from serving on his jury because of their race.

Timothy Foster was a poor, Black, intellectually compromised 18-year-old charged with capital murder in the 1986 killing of Queen White, an elderly white woman.

Although it is unconstitutional for prosecutors to exclude jurors on the basis of race, prosecutors excluded every qualified African American from Mr. Foster’s jury. The all-white jury convicted Mr. Foster and sentenced him to death.

On appeal, the defense presented the prosecution’s jury selection notes, which show that prosecutors explicitly relied on race in selecting the jury. They highlighted the names of Black jurors on the jury list; circled the word “Black” next to the “race” question on the juror questionnaires of Black prospective jurors; identified Black prospective jurors as “B#1,” “B#2,” and “B#3”; ranked the Black prospective jurors against each other in case “it comes down to having to pick one of the Black jurors”; and identified all of the Black prospective jurors as “definite NO’s.” Despite this evidence, the Georgia Supreme Court denied Mr. Foster’s claim.

Today, in a 7-1 decision written by Chief Justice John Roberts, the Supreme Court reversed. Focusing on two of the excluded jurors, the Court found that the prosecutor’s proffered reasons for striking them applied just as well to white jurors who were allowed to serve. For example, prosecutors said they struck several Black jurors for having sons about the same age as Mr. Foster, but white jurors with sons the same age remained.

“But that is not all,” the Court wrote. “There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file.” Observing that the “sheer number of references to race in that file is arresting,” the Court found that “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep Black prospective jurors off the jury.” An “N” appeared next to each Black juror’s name on the venire list and the list of qualified jurors; every Black juror’s name was on the prosecutor’s “definite NO’s” list; and the prosecutor’s investigator identified one Black juror who “might be okay” “if we had to pick a Black juror.”

The Court concluded that these “prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.”

The United States Supreme Court reversed Timothy Foster’s conviction and death sentence.