High court finds race discrimination in Georgia death case

The U.S. Supreme Court on Monday rebuked Georgia prosecutors for improperly assembling an all-white jury in a murder case involving a black man and then giving trumped-up explanations as to why they excluded blacks from the trial.

Timothy Tyrone Foster was convicted of murder in 1987 in the death of an elderly white woman in Floyd County and has been on Death Row ever since. The high court’s action sent the case back to the Georgia Supreme Court and all but cleared the way for a new trial.

Chief Justice John Roberts, writing for a 7-1 majority, repudiated prosecutors’ stated reasons for striking African-Americans from the jury, calling one of them “nonsense.” The prosecutors’ explanations were not only disingenuous, they were also contradicted by their own files and the answers prospective jurors gave during the selection process, the chief justice wrote.

Foster was convicted in 1987 of sexually assaulting and strangling Queen Madge White, a 79-year-old retired elementary school teacher. In closing arguments, the district attorney told the jury it needed to give the death penalty to Foster to “deter other people out there in the projects.”

The majority’s decision often drew from the prosecution’s own files, obtained by Foster’s new lawyers almost 20 years after his trial. “(T)he focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury,” Roberts wrote.

The files show that the prosecution team used a green marker to highlight the black people who were in the jury pool. On another sheet of paper, prosecutors listed six people as “definite NO’s” for the jury; the first five of whom were the remaining African-American prospective jurors.

Roberts also chastised prosecutors for being “indignant” when they were initially accused of striking prospective black jurors because of their race. He noted that in one court filing, prosecutors wrote that “the state and this community demand an apology.”

But the prosecution’s own files “plainly belie the state’s claim that it exercised its strikes in a ‘color-blind’ manner,” Roberts wrote. “The sheer number of references to race in that file is arresting.”

Justice Clarence Thomas filed the sole dissent, saying he believed the trial judge’s determination that race was not a factor in jury selection to be more reliable than the high court’s review three decades later.

Barry Slotnick, who chairs the New York State Bar Association’s death-penalty committee, praised the ruling.

“This decision by the court was beyond extremely important,” he said. “Clearly the U.S. Supreme Court has sent a message to prosecutors that it’s not going to stand for convictions that are race-based.”

The ruling did not overturn Foster’s death sentence. Instead, the court sent the case back to the Georgia Supreme Court for “further proceedings.”

Leigh Patterson, Floyd County’s district attorney, declined to say what she planned to do if, as is expected, Foster is granted a new trial.

“We’re in the process of notifying the victim’s family,” she said. “This remains a very important case to that family and to this community.”

Foster’s lawyer, Stephen Bright, senior counsel for the Southern Center of Human Rights in Atlanta, said he found it “sobering” that no Georgia court had found any problem with jury selection in Foster’s case. “One hopes there will be greater vigilance in dealing with discrimination in future cases,” he said.

The high court’s ruling was possible because evidence from the prosecution’s own files came to light, Bright said. “But there are many other cases where the same discrimination took place but no one ever found the evidence we found in this case.”

In its decision, the high court focused on two prospective black jurors – Marilyn Garrett and Eddie Hood — who were struck by prosecutors during jury selection. It found that the prosecution’s use of its peremptory strikes against Garrett and Hood violated its 1986 precedent, Batson v. Kentucky, which held that excluding a potential juror because of his or her race was unconstitutional.

Roberts went into exhaustive detail in explaining why he found prosecutors’ explanations for striking the pair to be based on pretext.

In Garrett’s case, for example, then-District Attorney Stephen Lanier said one of the reasons he struck Garrett was she was “too young” and that prosecutors were looking “for older jurors that would not easily identify with the defendant.”

But Garrett was 34 and Foster was 19, and prosecutors declined to strike eight white prospective jurors who were under the age of 36. One of them, who served on the jury, was 21, Roberts pointed out.

In a prior interview, Garrett, who is now Marilyn Whitehead, said she felt discriminated against by prosecutors at Foster’s trial. “After that, I felt like I never wanted to be on a jury against because of the way I was treated.”

As for Hood, prosecutors said they struck him because he had an 18-year-old son who was about the same age as Foster and who had been convicted of theft by taking. That was “basically the same thing that this defendant is charged with,” Lanier said, when explaining why he struck Hood from the jury.

“Nonsense,” Roberts wrote, noting the extreme disparity between the capital murder charges facing Foster and the 12-month suspended sentence Hood’s son received for stealing hubcaps from a car in a mall parking lot.

“The ‘implausible’ and ‘fantastic’ assertion that the two had been charged with ‘basically the same thing’ supports our conclusion that the focus on Hood’s son can only be regarded as pretextural,” Roberts wrote.

As for the state’s argument, Roberts wrote, it “does not dissuade us from the conclusion that its 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.”

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