WASHINGTON – Skeptical Supreme Court justices Monday raised serious doubts about how Georgia prosecutors secured an all-white jury in a decades-old death penalty case.
While sharp questions suggested a split court, the most persistent hammering came from liberal-leaning justices who suggested prosecutors systematically and improperly excluded black jurors from the panel that convicted Timothy Tyrone Foster of murder in 1987.
Foster, who was 18 at the time of the crime, is black. The victim, a 79-year-old retired elementary school teacher from Rome, Ga., was white. The prosecutors used challenges to eliminate blacks from the jury pool.
"All of the evidence seems to suggest a kind of singling out," Justice Elena Kagan told Georgia's Deputy Attorney General Beth Burton. "Isn't this as clear a violation as we're ever going to see?"
Justice Stephen Breyer added that "many" of the trial prosecutor's stated reasons for challenging black jurors were "self-contradictory, obviously not applicable." Justice Anthony Kennedy, a frequent swing vote, added flatly that the prosecutors were "wrong" and had "made a mistake."
Foster's IQ test scores, according to defense attorneys, put him "in the borderline range for intellectual disability." In August 1986, while intoxicated on alcohol, marijuana and cocaine, he broke into the home of Queen Madge White, a widow who had just returned from choir practice.
Foster broke White's jaw, sexually molested her and strangled her to death, before stealing items from her home. Foster's live-in girlfriend reported him to the police, and he subsequently confessed to law enforcement.
Ninety-five potential jurors were initially called for Foster's trial. Ten were black. Defense attorneys and prosecutors led by Floyd County District Attorney Stephen Lanier each could eliminate potential jurors for "cause," such as a known bias. Each also had a limited number of "peremptory" challenges, for which no reason had to be initially given.
"The prosecutors in this case came to court on the morning of jury selection determined to strike all the black prospective jurors," Foster's attorney Stephen Bright, president of the Atlanta-based Southern Center for Human Rights, told justices Monday.
The high court, in an earlier decision involving a Kentucky burglary case, prohibited using peremptory challenges to eliminate jurors on the basis of race. Proving a racial motive can be complicated because attorneys manage to concoct other reasons for their peremptory challenges.
Eventually, the jury pool in Foster's case was narrowed to include four blacks. Prosecutors used their peremptory challenges to eliminate them all, while insisting that they had tactical reasons other than race. Significantly, prosecutors' trial notes obtained in 2006 through an open records request showed that the names of the black jury pool members were marked with a "B," highlighted in green and included on a list titled "Definite NOs."
"I think any reasonable person would look at this, and say his reason was a purpose to discriminate on the basis of race," Breyer said.
A decision is expected by the time the court's term ends next June.