Supreme Court looks at exclusion of blacks from jury in Georgia death penalty case

In its next look at the death penalty, the Supreme Court is faced with the case of Timothy Tyrone Foster, to be argued on November 2. Foster is a black man who was convicted and sentenced to death by an all-white jury for the murder of a white woman. The jury was composed entirely of white Georgia residents after the prosecution excused all four qualified black prospective jurors using its peremptory challenges (challenges for which no reason need be given). The question before the Court is whether those challenges were legal or not, based on precedent set by the 1986 case Batson v. Kentucky,¹ which prohibits peremptory challenges based on the race of potential jurors.

In Batson and subsequent cases, the Supreme Court established procedures for determining whether a prosecutor is using peremptory challenges to discriminate against jurors based on their race in a particular case.² If defense attorneys suspect this is happening, the prosecutor has to give race-neutral reasons for dismissing the jurors. If no reason is given, the challenge will not be accepted, and the juror will be seated for the trial. If the prosecutor gives a reason unrelated to race, the judge must decide whether the reason is just a pretext to cover intentional racial discrimination or whether the reason is real.³

In Foster’s case, the Georgia prosecutor used nine peremptory challenges, four of which excused black jurors. When the defense raised an objection based on Batson, the prosecutor gave several reasons why the four jurors were excused, unrelated to their race. These reasons included, for example, that one juror had a son about the same age as the defendant, that another was a social worker, and that a third avoided eye contact. The judge accepted these reasons and found no violation based on Batson. Foster was convicted and sentenced to death by the all-white jury.

Foster’s attorneys renewed their objections to the dismissal of the black jurors. To get evidence supporting their need for a new trial, they asked for the prosecution’s notes from the jury selection process. The judge refused to grant them access to the notes, and the prosecutor agreed to testify about his reasons for striking the black jurors only on the condition that the defense would not be able to see his notes. Ultimately, Foster’s request for a new trial was denied, and the Georgia Supreme Court upheld the original judge’s decision to allow the jurors’ dismissals.

Many years later, Foster’s post-conviction lawyer was able to obtain the prosecutors’ notes from jury selection through an open records request. The documents revealed the following:

• Lists of prospective jurors with names of those who are black highlighted in green and identified as B#1, B#2, etc.
• Questionnaires filled out by the black prospective jurors on which prosecutors had circled their written answer to the race question – “BLACK.”
• Notes comparing the black jurors with one another and a draft affidavit by an investigator saying, “If it comes down to having to pick one of the black jurors, Garrett might be okay.”
• A list of six jurors the prosecutors labeled as “definite NOs,” included five⁴ black jurors and a woman whom they tried to dismiss, unsuccessfully, because of her views on the death penalty.

Even with this new evidence, the Georgia courts reaffirmed their conclusion that the prosecution did not excuse the black jurors because of their race.

When Foster sought review in the Supreme Court, the state reiterated its position that it had given adequate race-neutral reasons for excusing the jurors. They tried to explain the prosecutor’s notes by saying that all prospective jurors were thoroughly investigated, that the prosecutors did not rely on the highlighting or other indications of race, that the affidavit by the investigator reflected only that person’s opinion, and that the judge believed the prosecutors’ testimony that they did not discriminate on the basis of race.

After the Supreme Court agreed to hear Foster’s case, the Georgia prosecutors put forth a new explanation for their notes in the files – files that they had fought to keep secret for more than 20 years. They now claimed that the focus on race in the documents was just part of an effort to comply with requirements to have race-neutral reasons for dismissing black jurors. In other words, particular attention had to be paid to the black jurors to ensure that any dismissal would be upheld against a Batson challenge. The Court will have to consider whether to accept this last-minute rationale.

This case presents another opportunity for the Court to confront the long history of race and the death penalty, particularly in Georgia. When then-Justice Stewart helped strike down the death penalty nationally in 1972 in Furman v. Georgia, he did not find that race discrimination had been proven by the petitioners. But, he did note that “[m]y concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race.”⁵ And the shameful history of executing black men for the rape of white women doubtless played a role in the Court’s declaring the death penalty unconstitutional for that crime.⁶ In more recent years, prosecutors in Georgia sought the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims.⁷ The Supreme Court decided that those stark statistics of race discrimination weren’t enough to overturn the Georgia death sentence of Warren McCleskey, but Mr. Foster has direct evidence of the focus on race in jury selection. That fact may make all the difference.

This piece is one in a continuing series by our newest board member, Ursula Bentele. Ursula is a renowned Supreme Court scholar, who will look at some of the Court’s cases with a particular eye towards those with implications for the death penalty. Once the Court has heard oral arguments and delivers its opinions, she will reflect on those outcomes and comment on how the Court’s resolution of the issues might affect the future of the death penalty in this country.

1. 476 U.S. 79 (1986).
2. Before Batson was decided, in order to establish a violation of the Equal Protection Clause of the Constitution, defendants from whose juries blacks were excluded had to show that prosecutors were discriminating against black jurors systematically, that is, not just in their particular case. See Swain v. Alabama, 380 U.S. 202 (1965).
3. See Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008).
4. One of the black jurors was excused for cause at the beginning of jury selection and replaced by a white woman.
5. Furman v. Georgia, 408 U.S. 428, 310 (1972) (Stewart, J., concurring).
6. Coker v. Georgia, 433 U. S. 584 (1977). The Court did not mention race in its opinion, but the litigation leading up to its determination had established beyond dispute that race played a critical role in the imposition of the death penalty for rape.
7. McCleskey v. Kemp, 481 U.S. 279, 327 (1987).