Nearly Six Years After Supreme Court Granted Him a New Trial, Timothy Foster Resentenced to Life

Timothy Foster, whose con­vic­tion and death sen­tence were over­turned by the U.S. Supreme Court in 2016 because Georgia pros­e­cu­tors dis­crim­i­na­to­ri­ly struck Black jurors from serv­ing in his case, has been resen­tenced to life in prison with­out the pos­si­bil­i­ty of parole.

On March 4, 2022, Foster (pic­tured) plead­ed guilty in a Rome, Georgia court­room and accept­ed the life sen­tence after pros­e­cu­tors agreed to drop the death penal­ty in his case. The plea deal ends a 35-year legal odyssey that began in 1987 when Foster, who is Black, was sen­tenced to death at age 18 by an all-white jury after pros­e­cu­tors used their peremp­to­ry chal­lenges to remove every Black prospec­tive juror from the jury pool. 

Foster’s tri­al lawyer chal­lenged the prosecution’s strikes under the U.S. Supreme Court deci­sion Batson v. Kentucky, decid­ed just one year ear­li­er, which banned the prac­tice of strik­ing jurors on the basis of race. However, the tri­al court cred­it­ed as race neu­tral the rea­sons pros­e­cu­tors offered at tri­al for each of the strikes. Years lat­er, Foster obtained the pros­e­cu­tors’ jury selec­tion notes, which showed that pros­e­cu­tors had high­light­ed the names of each of the Black prospec­tive jurors in green 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 one anoth­er in case ​“it comes down to hav­ing to pick one of the black jurors.”

On May 23, 2016, by a vote of 7 – 1, the U.S. Supreme Court over­turned Foster’s death sen­tence and con­vic­tion in Foster v. Chatman because Foster’s pros­e­cu­tors had improp­er­ly exer­cised their dis­cre­tionary jury strikes on the basis of race to exclude Black jurors in his tri­al. The jus­tices ruled that Foster was enti­tled to a new tri­al, and in 2018, Georgia announced it would seek anoth­er death sen­tence for Foster.

In a 2019 pre-tri­al hear­ing, Harold Chambers, who was in 1987 an assis­tant dis­trict attor­ney for Floyd County, Georgia, tes­ti­fied that he heard District Attorney Steve Lanier and his lead inves­ti­ga­tor Clayton Lundy argu­ing about Foster’s jury strikes while jury selec­tion was under way. ​“Mr. Lundy told Lanier they had to put a black per­son on the jury,” Chambers tes­ti­fied. ​“Lanier kept say­ing ​‘no, I’m not going to do it.’” Eventually, Lundy told Lanier that “[i]f you don’t put a black juror on this jury this is going to come back to haunt you.”

Assistant District Attorney Douglas Pullen also rep­re­sent­ed the State in Foster’s tri­al. Pullen pros­e­cut­ed five cap­i­tal tri­als involv­ing black defen­dants between 1975 and 1979 while he was a pros­e­cu­tor in Columbus, Georgia. In those cas­es, he struck all 27 black prospec­tive jurors and suc­cess­ful­ly empan­eled five all-white juries. 

Veteran death-penal­ty and civ­il-rights lawyer Stephen B. Bright, the for­mer President of the Southern Center for Human Rights, suc­cess­ful­ly argued Foster’s case and two oth­er jury dis­crim­i­na­tion cas­es in the U.S. Supreme Court. In a 2018 Discussion With DPIC pod­cast, he spoke about the sys­temic abuse of jury strikes to exclude jurors of col­or in death-penal­ty cas­es. Bright described racial dis­crim­i­na­tion in jury selec­tion as ​“ram­pant” and called it ​“a mat­ter of grave urgency.” He spoke at length about Foster’s case, explain­ing how jury-selec­tion notes that were hid­den from the defense for two decades were crit­i­cal in prov­ing that pros­e­cu­tors had dis­crim­i­na­to­ri­ly tar­get­ed Black jurors because of their race. Those notes, he said, allowed defense attor­neys to ​“pull back the cloak of secre­cy” that usu­al­ly shrouds deci­sions on jury strikes.