Today, the U.S. Supreme Court held in a 7-1 decision, written by Chief Justice John Roberts, that Georgia prosecutors intentionally discriminated in striking all of the African American prospective jurors to get an all-white jury in Mr. Foster’s 1987 capital trial, a finding which requires the conviction and death sentence be set aside. The following is a statement from Stephen Bright, counsel of record for Petitioner and President of Southern Center for Human Rights.
“Today the U.S. Supreme Court found that prosecutors at Timothy Foster’s capital trial intentionally discriminated in striking black prospective jurors during jury selection and lied about it by giving false reasons for their strikes when the real reason was race. The Court had no choice. The prosecution’s notes which were discovered and introduced as evidence left no doubt that the strikes were motivated by race to get an all-white jury. The prosecutors then asked the jury to sentence Foster to death to deter people in the projects, which were 90% black.
This discrimination became apparent only because we obtained the prosecution’s notes which revealed their intent to discriminate. Usually that does not happen. The practice of discriminating in striking juries continues in courtrooms across the country. Usually courts ignore patterns of race discrimination and accept false reasons for the strikes. Even after the undeniable evidence of discrimination was presented in this case, the Georgia courts ignored it and upheld Foster’s conviction and death sentence.
The decision in this case will not end discrimination in jury selection. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination.
Jury strikes motivated by race cannot be tolerated. The exclusion of black citizens from jury service results in juries that do not represent their communities and undermines the credibility and legitimacy of the criminal justice system.”
– Stephen Bright, Counsel of Record for Petitioner Timothy Foster
– May 23, 2016
The Foster v. Chatman Opinion can be accessed here.
Foster v. Chatman Case Background
Foster’s case presents an important issue about the continuing discrimination in excluding people of color from juries. Although the Supreme Court held that such discrimination violated the equal protection clause of the Fourteenth Amendment in Batson v. Kentucky (1986), the discrimination has continued, as study after study has shown. (See Equal Justice Initiative, “Illegal Racial Discrimination In Jury Selection: A Continuing Legacy,” this 2012 study from North Carolina, and this 2015 study from Louisiana. Additionally, the Washington Supreme Court expressed dismay in a 2013 opinion both that Batson violations are rampant and that the constitutional Batson protection must be strengthened).
Timothy Foster is a poor, black, intellectually limited man who was 18-years-old when he was charged with murdering an elderly white woman in Georgia.
After the prosecution struck 100 percent of the black prospective jurors, an all-white jury convicted Mr. Foster and sentenced him to death in 1987 after the prosecution implored it to impose death to “deter other people out there in the projects.” When Mr. Foster’s trial counsel challenged the prosecution’s removal of all of the black jurors, the prosecution represented to the trial court that the reasons for the dismissals were not based on race. After trial, Mr. Foster’s attorneys requested the prosecution’s notes and the prosecution refused to turn them over and the courts refused to require them to.
As a result of an open records request, Mr. Foster’s attorneys received the prosecution’s notes almost 20 years later, which showed that (1) black citizens were identified by race; (2) the prosecution’s priority was to strike black citizens before any white prospective jurors; and (3) that the prosecution misrepresented several of their reasons for removing the black jurors to the court.
The prosecution’s notes confirm that race was the driving factor in their decisions to remove black citizens from the jury. Specifically, the notes show:
- The prosecution team marked the names of black prospective jurors with a “B” and highlighted each black juror’s name in green on four different copies of the venire list of all the people summoned for jury service. Each of the four lists had a key that said green highlighting “Represents Blacks.” (Brief at pp. 15-16.)
- The prosecution circled the word “black” next to the “race” question on the juror questionnaires of five black prospective jurors. In addition, the prosecution identified three black prospective jurors as B#1, B#2, and B#3 in their notes. (Brief at p. 17.)
- The black prospective jurors were ranked against each other in case “it comes down to having to pick one of the black jurors.” This statement indicates that the prosecution’s preferred outcome was an all-white jury, which they achieved through striking each black prospective juror. (Brief at p. 18.)
- The prosecution also created strike lists that prioritized striking the black prospective jurors over any white prospective jurors. Black citizens were the first five of six prospective jurors on the prosecution’s list of “Definite NOs,” meaning they were slated for definite strikes. (Brief at p. 19.)
At oral argument on November 2, 2015, Foster’s counsel argued that the prosecution’s misconduct violated the Court’s decision in Batson v. Kentucky. The case presents an opportunity for the Supreme Court to make it clear that such discrimination in the selection of juries is unconstitutional and will not be tolerated.
The Foster v. Chatman Brief of Petitioner can be accessed here.
The Joint Appendix, including images of the prosecutor’s notes can be accessed here:
Volume I and Volume II
The Amicus Brief in Support of Petitioner from Former Prosecutors, which can be accessed here.
The Foster v. Chatman Brief of Respondent (State of Georgia) can be accessed here.
Additional Foster v. Chatman materials can be found here.