‘A KIND OF SINGLING OUT’
Justice Elena Kagan was as blunt as could be when she described her take on the case. She cited notes obtained by Foster's lawyers under the Georgia Open Records Act that showed prosecutors were focusing on all the black jurors as a group and trying to determine which would be best-suited to sit on the jury if they had to pick one.
“All the evidence suggests a kind of singling out,” Kagan said. “Isn’t this as clear a Batson violation as a court is ever going to see?”
Foster sits on death row for sexually assaulting and then killing Queen Madge White, a 79-year-old retired elementary school teacher, at her Rome home in August 1986. During closing arguments, then-District Attorney Stephen Lanier urged jurors to sentence Foster to death “to deter other people out there in the projects.”
Almost two decades later, Foster's new lawyers obtained the notes prosecutors compiled as they prepared to pick the jury. On the lists of prospective jurors, the prosecution team highlighted all the African-American jurors with a green marker. The notes also referred to black jurors as "B#1," "B#2" and "B#3."
Another note listed six “definite NO’s,” the top five of which were the remaining black jurors at that time.
‘AN ARSENAL OF SMOKING GUNS’
During Monday’s arguments, Foster’s lawyer, Stephen Bright, noted that the sixth person on that list, a white woman, had made it clear she could not impose the death penalty under any circumstance.
“But even she ranked behind the black jurors in terms of the priorities that the prosecution had for striking,” he said. “… We have an arsenal of smoking guns in this case.”
Deputy State Attorney General Beth Burton tried to convince the justices that Lanier, the district attorney, removed blacks from the jury for reasons other than race and noted the district attorney gave a number of acceptable “race-neutral” reasons to justify his strikes.
As for the color-coded jury notes, she said, they were prepared that way because prosecutors were getting ready to defend a Batson challenge to their use of strikes against the African-American jurors.
‘REASON WAS TO DISCRIMINATE’
But Justice Stephen Breyer wasn’t buying it. He noted the explanation of preparing for a Batson challenge was first raised many years after Foster’s initial appeals.
“Isn’t it a little surprising that he never thought of it — or didn’t tell anybody?” Breyer asked, referring to Lanier, as spectators throughout the packed courtroom broke into laughter. “… So it’s hard to believe that’s his real reason.”
As for all the “race-neutral” reasons Lanier gave for explaining his strikes of black jurors, Breyer compared that to his grandson saying he didn’t want to do his homework because he was too tired.
His grandson could also say that he’d promised a friend he’d play basketball with him, that there was a great show on TV, that his stomach was upset and that he wanted to eat spaghetti.
“And so I would say my answer to my grandchild is, ‘Look, you’re not too tired to do your homework,’” Breyer said. “And I think any reasonable person looking at this would say, ‘No, his reason was a purpose to discriminate on the basis of race.’”
REMOVED JUROR REMEMBERS
Even Justice Samuel Alito, one of the court’s more conservative members, expressed unease with Lanier’s explanation as to why he removed prospective black juror Marilyn Garrett.
“What about (Lanier) giving a reason for dismissing her that she was close in age to the defendant?” Alito asked.
At the time of the trial, Garrett was 34. Foster was 19.
Garrett, now Marilyn Whitehead, is 63 and still remembers the experience.
“I felt like they discriminated against me,” she said Monday. “After that, I felt like I never wanted to be on a jury again because of the way I was treated.”