High court considers race discrimination in Georgia death case

With a green highlighter, the prosecution marked up the list of potential jurors and then inked in the notation “#B1,” “#B2,” “#B3” and so on. The “B” was an unsubtle code for black, and the prosecutors struck each of them from the jury. On another sheet of paper, the state listed six people as “definite NO’s” for the jury. The first five were the remaining African-Americans in the jury pool.

So it was in 1987 that an all-white jury in Rome came to hear the case of a black man accused in the murder of a white woman. In closing arguments, the district attorney told jurors to give the defendant the ultimate punishment to “deter other people out there in the projects.”

Timothy Tyrone Foster, then 18, sexually assaulted and strangled Queen Madge White, 79, at her home in August 1986. Just four months before that vicious murder, the U.S. Supreme Court ruled that excluding a prospective juror because of his or her race is unconstitutional.

On Monday, the Supreme Court will revisit that landmark ruling when it hears oral arguments over whether Foster was denied equal protection under the law when prosecutors struck all the black people from his jury. Foster was convicted and sentenced to death; he has been on death row for 28 years.

The state has argued — and so far, courts have agreed — that the Foster prosecution based its jury strikes on factors other than race. But Foster’s lawyer says the prosecutors’ own notes show otherwise.

“They show the prosecutor’s strategy and determination to strike all the prospective black jurors,” said Stephen Bright, senior counsel for the Southern Center for Human Rights in Atlanta. “This was simply a continuation of the historic practice of striking African-Americans from jury service. Unfortunately, it continues to this day.”

The court’s ruling in 1986 in Batson v. Kentucky — all African-American jurors were struck from hearing the case of a black man, James K. Batson, accused of burglary and receiving stolen goods — was supposed to end such practices. Indeed, the court said its decision was necessary to strengthen the public’s respect for the criminal justice system and the rule of law.

But subsequent rulings and statistical studies show the Batson decision has failed miserably to ensure that no citizen is disqualified from jury service because of his or her race.

Three years ago, a North Carolina judge, relying on a review of jury selections in 173 death-penalty trials, found state prosecutors struck more than twice as many eligible black jurors than all other eligible members. The probability of this happening in a race-neutral jury selection process: less than one in 10 trillion.

A year later, the Washington Supreme Court said that “a growing body of evidence shows that racial discrimination remains rampant in jury selection.” The Batson decision failed to eliminate it because the ruling “recognizes only purposeful discrimination, whereas racism is often unintentional, institutional or unconscious.”

“It’s been unfortunate,” said Atlanta lawyer Leah Ward Sears, a former chief justice of the Georgia Supreme Court. “The Batson ruling has made it very difficult for courts to identify subtle racial bias because it can so easily be explained away for some other reason. And we live in a time when race permeates just about everything in our society.”

‘Evidence does not show discriminatory intent’

Timothy Foster’s case would become highly unusual because the prosecution team’s notes on jury selection were obtained by his new lawyers under the Georgia Open Records Act.

The notes show the green highlighting of black jurors and the “#B1” notations. They also show that the prosecutors’ investigator wrote, “If it comes down to having to pick one of the black jurors, (Marilyn) Garrett might be okay.”

Defense attorneys lodged a Batson challenge at the end of jury selection. As one of his reasons for removing Garrett, District Attorney Stephen Lanier told the judge that her age was “so close to the defendant.”

At that time, Garrett was 34. Foster was 19.

Court filings show prosecutors declined to strike eight white jurors who were 35 or younger, including a man only two years older than Foster. Even so, the trial judge found the prosecutors’ explanations “honest” and “credible” and denied Foster’s jury challenge.

State Attorney General Sam Olens is asking the Supreme Court to uphold Foster’s death sentence.

The jury selection notes are “perfectly consistent with conscientious, non-discriminatory prosecutors” preparing to rebut race-discrimination challenges, state attorneys wrote in their brief. “The new evidence does not show discriminatory intent.”

‘You don’t want those people on your jury’

A number of former prosecutors who believe Foster deserves a new trial say the evidence was overwhelming. Among those signing the friend-of-the-court brief were former Deputy U.S. Attorney General Larry Thompson, former District Attorney Gil Garcetti of Los Angeles and author Scott Turow, once a federal prosecutor in Chicago.

“If this court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless,” the ex-prosecutors said.

Under the Batson ruling, the defense may object to jury selection if the prosecution’s strikes of black jurors indicate a pattern of purposeful discrimination. The prosecution must then provide a “race neutral” justification for striking black jurors. (The court later extended the same protections to women and allowed prosecutors to raise their own challenges.)

It didn’t take long for some prosecutors to find ways around the Batson decision. Soon after it was issued, Jack McMahon, an assistant district attorney in Philadelphia, made a training film that showed fellow prosecutors how to exclude blacks from juries.

“Blacks from the low-income areas are less likely to convict … you don’t want those people on your jury,” McMahon said. Young black women are “very bad” because they are “downtrodden in two respects … they are women and they’re black. … They somehow want to take it out on somebody and you don’t want it to be you.”

His strategy: Question black prospective jurors at length until you elicit an answer that can be used to justify striking those jurors on some basis other than race.

In 1995, North Carolina’s district attorneys offered a trial advocacy course called “Top Gun II” that included the one-page handout, “Batson Justifications: Articulating Juror Negatives.” The paper listed explanations a prosecutor could give to justify striking a black juror. Among them: inappropriate dress, tattoos, lack of eye contact, body language, age and attitude.

‘How can we shake this one loose?’

During jury selection last year for the Atlanta Public Schools test-cheating trial, Superior Court Judge Jerry Baxter told attorneys he could see what was going on — prosecutors were trying to get prospective black jurors to say things that might disqualify them, while defense attorneys were doing the same thing with prospective white jurors.

“The questions just go on and on,” Baxter said. “It’s like, how can we shake this one loose?”

Ultimately, five whites, five blacks, one Asian-American and one Hispanic person were seated.

DeKalb District Attorney Robert James, who was not involved in the APS prosecution, said courts face enormous challenges when it comes to discerning an attorney’s motive for striking this juror or that.

“It’s a very, very sensitive issue, and it’s a very difficult issue for the courts to navigate,” James said.

“There will be times when you look at a race-neutral explanation and say, ‘This is garbage.’ But there are concerns as to how you legitimately and adequately apply those constitutional protections across the board. Because you’re asking the court to decide what was in someone’s heart or in someone’s mind.”

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