Today the United States Supreme Court heard oral argument in a Georgia case upholding Timothy Foster’s conviction and death sentence despite dramatic evidence that prosecutors illegally discriminated against Black jurors.
It is unconstitutional for prosecutors to exclude jurors on the basis of race. Racially biased use of peremptory strikes and illegal racial discrimination in jury selection nonetheless remain widespread, particularly in serious criminal cases and capital cases. Hundreds of people of color called for jury service have been illegally excluded from juries after prosecutors asserted pretextual reasons to justify their removal.
Timothy Foster was a poor, Black, intellectually compromised 18-year-old when he was charged in 1986 with murdering Queen White, an elderly white woman who worked as a school teacher before her retirement.
The prosecution’s jury selection notes from the 1987 trial 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”; and ranked the Black prospective jurors against each other in case “it comes down to having to pick one of the Black jurors.”
The prosecution struck all four Black prospective jurors, giving about a dozen different excuses for each strike. These reasons included facts that were equally true of white jurors who were not excluded. 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.
The prosecutor later argued to the all-white jury that it should sentence Timothy Foster to death in order to “deter other people out there in the projects from doing the same again.” Black families occupied more than 90 percent of the units in the local housing projects at that time.
Timothy Foster, who is represented by lawyers at the Southern Center for Human Rights, was convicted and sentenced to death. He argued on appeal that prosecutors had illegally discriminated against Black jurors, but Georgia’s courts denied his claim despite the evidence contained in the prosecutor’s own notes. The Supreme Court will now address whether Georgia’s courts were wrong to permit prosecutors to eliminate all Black jurors from Timothy Foster’s capital jury.
At the argument today, Justice Kagan told the state’s attorney, “Look. You have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the African-American prospective jurors as a group, that they had basically said, we don’t want any of these people.”