The Supreme Court has agreed to hear the case of Timothy Foster, an African-American defen­dant who was sen­tenced to death by an all-white jury after Georgia pros­e­cu­tors had struck every black prospec­tive juror in his case. On May 26, the U.S. Supreme Court grant­ed review in Foster v. Humphrey to deter­mine whether the prosecution’s actions vio­lat­ed the Court’s 1986 deci­sion in Batson v. Kentucky, which banned the prac­tice of dis­miss­ing poten­tial jurors on the basis of race. Foster chal­lenged the prosecution’s jury strikes as racial­ly dis­crim­i­na­to­ry at the time of jury selec­tion, but the tri­al court per­mit­ted the strikes. Nineteen years after the tri­al, his lawyers obtained the pros­e­cu­tors’ notes from jury selec­tion, which con­tained infor­ma­tion that con­tra­dict­ed the ​“race-neu­tral” expla­na­tions for the strikes that the pros­e­cu­tion had offered at trial. 

The notes reflect that the pros­e­cu­tion marked the name of each black prospec­tive juror in green high­lighter on four dif­fer­ent copies of the jury list; cir­cled the word ​“BLACK” next to the ​“Race” ques­tion on the juror ques­tion­naires of five black prospec­tive jurors; iden­ti­fied three black prospec­tive jurors as ​“B#1,” ​“B#2,” and ​“B#3”; and ranked the black prospec­tive jurors against each oth­er in case ​“it comes down to hav­ing to pick one of the black jurors.” Prosecutors said they struck each of the black jurors for race-neu­tral rea­sons and did not use the high­light­ed list in their final deci­sion. The Georgia Supreme Court upheld Foster’s con­vic­tion. Foster’s case will be heard by the U.S. Supreme Court after the new term begins in October.

(S. Hananel, ​“Supreme Court will hear appeal from Georgia death row inmate over exclu­sion of black jurors,” Associated Press, May 26, 2015; see the pros­e­cu­tors’ juror list with black jurors high­light­ed.) See U.S. Supreme Court and Race.

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