State capital defenders on Monday asked a judge to dismiss a murder case because Floyd County prosecutors illegally assembled an all-white jury to put a black man on death row and then covered up their misconduct for decades.
Timothy Tyrone Foster was found guilty 32 years ago of killing an elderly white woman in Floyd County. The case drew a rebuke from the U.S. Supreme Court, which in 2016 strongly criticized prosecutors for striking every possible African-American from Foster’s jury and then giving trumped-up explanations as to why they excluded them.
“This is a case where for 30 years the prosecution perpetrated a fraud on the court,” said Jerry Word, one of Foster’s attorneys and head of the state capital defender office. “Even to this day the prosecution doesn’t acknowledge the extent of its misconduct.”
Word asked Superior Court Judge William Sparks to either dismiss the murder case against Foster or bar prosecutors from seeking the death penalty if they retry him again.
Assistant District Attorney Kevin Salmon, who asked Sparks to deny the requests, sought to downplay what happened at Foster’s trial. The prosecution’s misconduct wasn’t as bad as “hiding evidence” or “manipulating witnesses,” and it does not justify the relief sought by Foster’s lawyers, Salmon said.
The case is now before Sparks because after the Supreme Court’s ruling, Foster was granted a new trial and Floyd County prosecutors announced they would once again seek the death penalty against him. Prosecutors say Foster, then 18, sexually assaulted and strangled Queen Madge White, 79, at her home in August 1986.
In its 7-1 decision, the Supreme Court relied on notes prosecutors used during jury selection of Foster’s case, in which a “B” was put next to the name of each prospective black juror. On one sheet of paper, the state listed six people as “definite NO’s” for the jury — with the first five being the remaining African-Americans in the jury pool.
During Monday’s hearing, a former Floyd County prosecutor testified that District Attorney Stephen Lanier was determined to get an all-white jury in Foster’s case.
“It was well known in the office that Stephen Lanier would not put a black person on the jury,” said Harold Chambers, who worked for Lanier in the DA’s office from 1985 to 1991.
A few years before Foster’s trial, Lanier allowed an African-American minister to sit as a juror in a death-penalty trial, said Chambers, now a federal administrative law judge. The minister was the lone holdout in an 11-1 vote for a death sentence, and because there was no unanimous verdict the defendant got a life sentence.
“From that point on, it was Mr. Lanier’s position he would never put a black person on the jury,” Chambers said.
During Foster’s trial, Chambers said, he overhead a heated conversation between Lanier and Clayton Lundy, an African-American investigator for the DA’s office. It occurred as the lengthy jury selection process was winding down.
“They were arguing with each other,” Chambers testified. He then repeated what he heard.
“You have to put a black person on this jury,” Lundy said.
“I’m not going to do it,” Lanier replied.
Even though Lundy kept insisting, Lanier wouldn’t budge, Chambers said. “He kept saying it over and over: ‘No, I’m not going to do it. I’m not going to put a black person on this jury.’”
Lundy then told Lanier something that proved to be prophetic: “If you don’t put a black person on this jury, this is going to come back to haunt you.”
Lanier, who served as district attorney from 1985 to 1996, died last year. Lundy, who would later be convicted of accepting bribes from suspects for getting their charges dismissed, could not be reached for comment.
Foster’s trial took place after the Supreme Court’s 1986 ruled in Batson v. Kentucky that prosecutors could not strike jurors because of their race. The high court also said when there is a pattern of strikes being made along racial lines, prosecutors must give race-neutral reasons to justify them.
Chief Justice John Roberts, who wrote the Foster opinion, found Lanier’s justifications for striking some of the black jurors to be based on pretext. One African-American woman, for example, was “too young” because the prosecution team was looking “for older jurors that would not easily identify with the defendant,” Lanier had explained.
But that prospective black juror, Marilyn Garrett, was 34 and Foster was 19, wrote Roberts, who pointedly noted Lanier had allowed a 21-year-old white woman to sit on the jury.
Chambers suggested there may have been a method behind Lanier’s explanations.
After the Batson ruling came out, Chambers said, seminars were held for prosecutors with training to help them deal with the decision.
“Here’s a list of racially-neutral reasons you can offer to a judge,” Chambers recalled. “It was designed for prosecutors to exclude blacks and give a reason for it.”
Chambers said he decided to approach Foster’s lawyers after he heard the Supreme Court was considering the jury misconduct claims.
“It was about as clear a Batson violation as I’ve ever seen in my life,” he said. “An egregious violation.”
Sparks said he would issue a ruling in the case sometime soon.
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