The first time I entered the U.S. Supreme Court’s majestic courtroom 16 years ago, I was struck by the 40-foot-long Spanish marble friezes high above the mahogany bench and gallery. The friezes pay homage to leading figures of many civilizations, such as Moses, Solomon, Justinian, Confucius and Charlemagne.
I often notice things, such as ornate wooden engravings or moldy sheet rock, high above on courtroom ceilings. That’s because I often look up when arguments or testimony get complicated and when I need to focus my concentration only on what’s being said.
This past Monday, the first thing I noticed was the large wall clock high above the justices’ bench. I’d sat down in the space reserved for visiting members of the news media a half hour before the 10 a.m. arguments.
But the court’s clock said it was five o’clock. A few minutes later, it was six o’clock. Then it was 3:15.
I looked over to the counsel’s table and made eye contact with and smiled to the opposing attorneys, both of whom I’ve followed for years: Stephen Bright, who represents death-row inmate Timothy Tyrone Foster, and Beth Burton, the deputy state attorney general who wants the court to uphold Foster’s death sentence.
This was my fourth time covering arguments at the high court. And for the fourth time I got lucky. I did not have to sit behind one of the courtroom’s 24 marble columns. I had an unobstructed view from one of the best seats in the gallery reserved for visiting members of the news media. I was sitting close behind the Associated Press’s Mark Sherman, a former colleague who has the best seat in the press gallery, and Nina Totenberg, the well-known NPR correspondent who had to be shushed by a bailiff for talking too loudly shortly before court convened.
A few minutes before 10 a.m., Bright took a drink of water. His hand was steady as could be. This would be his third appearance arguing before the high court. (He’d won his first two, leading to death sentences being vacated against his clients.) Burton, a seasoned attorney whose litigation has convinced courts to uphold numerous death sentences, was making her first appearance.
At straight up 10 o’clock (on my watch), the marshal bellowed, “Oyez! Oyez! Oyez!” and the nine justices took the bench.
Chief Justice John Roberts soon told the lawyers that late Chief Justice William Rehnquist often advised attorneys not to look up at the clock to keep track of their allotted time. “That advice is well taken today,” said Roberts, displaying a coy grin and eliciting laughter from the packed gallery.
Bright then stepped to the lectern to argue that prosecutors were determined to exclude African-Americans from being on Foster's jury because of their race.
But Roberts quickly interrupted and asked Bright to address a question few in the courtroom were expecting.
It turned out the court had dropped a bombshell on Bright and Burton the Friday afternoon before Monday's arguments. After prepping for weeks to argue the race discrimination issue involving jury selection at Foster's trial, the lawyers were suddenly informed they should expect questions as to how the court should review the case. Should the justices look to the state court judge's lengthy, detailed decision that dismissed Foster's jury challenge? Or should they look to the Georgia Supreme Court's cursory order which informed the parties the state high court was not going to consider Foster's appeal? (A similar issue is currently being litigated in the federal appeals court in Atlanta.)
The mind-numbing discussion then turned to whether the Georgia courts had made their decisions on state law grounds or on federal constitutional grounds, most specifically whether they applied Batson v. Kentucky, the 1986 U.S. Supreme Court decision that sought to end race discrimination in jury selection.
Finally, after taking up almost half of Bright’s time, Roberts allowed him to get to the merits of the claim — that prosecutors struck prospective African-American jurors from Foster’s case because of their race. When Burton stepped to the lectern, the justices asked her to explain what seemed to be a deepening procedural quagmire.
At one point, Justice Sonia Sotomayor interjected and said what many in the courtroom were also likely thinking. “I’m sorry,” she told Burton. “I’m just so confused I can’t even … “
The gallery then erupted into laughter.
Some of the court’s most conservative justices indicated they may want to send a question to the Georgia Supreme Court and ask it to clear up the morass.
When the justices finally got to the merits of the case, it appeared that at least six of them were troubled by Floyd County prosecutors' strikes of all four prospective black jurors. If the court finds race was a primary factor, then Foster will be awarded a new trial because it would mean prosecutors violated the precedent set in Batson v. Kentucky.
Foster, an African-American, was 18 when he sexually assaulted and then killed Queen Madge White, a 79-year-old white, retired elementary teacher, in her home in 1986.
Almost 20 years after the trial, Foster’s new lawyers obtained the notes prosecutors compiled as they prepared to pick the jury. One set of notes also referred to black jurors as “B#1,” “B#2” and “B#3.” Another listed six “definite NO’s,” the top five of which were the remaining black jurors at that time. The prosecutors’ investigator even wrote that “If it comes down to having to pick one of the black jurors,” then Marilyn Garrett might be acceptable. But prosecutors struck her as well.
Justice Anthony Kennedy said the note about Garrett “undercut” the state’s argument that prosecutors removed her from the jury for reasons other than race. “He’s simply wrong,” Kennedy said of the prosecutor.
Justice Elena Kagan was among the justices who seemed the most disturbed by what had transpired. At one point, she said, “All the evidence suggests a kind of singling out, which is the very antithesis of the Batson rule. … Isn’t this as clear a Batson violation as a court is ever going to see?”
After the arguments, I walked outside the court with Bright, who was clearly concerned the justices may not decide the case on its merits, but instead would sidetrack the appeal on some arcane procedural ground.
But when he soon stood before the TV cameras on the Supreme Court grounds, Bright stuck to the merits and repeated one of the best quotes he gave to the justices during the arguments: “We have an arsenal of smoking guns in this case.”
The court is expected to issue its decision by the end of June.
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