UPDATE: On May 23, 2016, the U.S. Supreme Court overturned Timothy Foster’s conviction and death sentence because Georgia prosecutors improperly exercised their discretionary jury strikes on the basis of race to exclude African American jurors. The vote was 7-1, with Justice Thomas the lone dissenter. For more on the decision, read DPIC’s summary here.

Timothy Foster – a poor, intellectually disabled, black teenager charged with the murder of a white woman – was tried by an all-white jury after Georgia prosecutors used their peremptory strikes to exclude all black prospective jurors from jury service in his case. The prosecution then argued to the all-white jury that Foster should be sentenced to death to “deter other people out there in the projects.” At the time, ninety percent of the families in the projects were black, including the Fosters. The jury sentenced Foster to death.

This case, Foster v. Chatman, No. 14-8349, presents the question of whether Foster was convicted and sentenced to death in violation of the United States Constitution’s guarantee of equal protection of the laws. It also presents an important issue regarding the participation of people of color as jurors and what evidence a court must consider in deciding whether prosecutors used their peremptory strikes in a racially discriminatory manner.

Foster argues that there is extensive and undeniable evidence that prosecutors purposefully practiced race discrimination in securing an all-white jury in his case. At trial, the prosecutor struck all four black prospective jurors who were in the general venire from which the jury was selected. When Foster challenged those strikes, the prosecution presented a number of facially race-neutral reasons as justification for the strikes, and the trial court accepted those reasons. Almost 20 years later, Foster obtained the prosecution’s jury lists and notes of jury selection through Georgia’s Open Records Act. Those notes contradict the pretextual reasons offered by the prosecution for striking black jurors and provide detailed evidence demonstrating that the prosecution struck these jurors based upon their race. However, the Georgia state courts refused to consider this evidence, saying that Foster had already raised a claim of jury discrimination on his direct appeal.

The prosecutor’s notes made clear that the black jurors were excluded because of their race. The notes reveal that:

  • The prosecution marked the names of the black prospective jurors with a “B” and highlighted each black juror’s name in green on four different copies of the list of all of the people summoned for jury duty in the case. Each of the four lists had a key that said green highlighting “Represents Blacks.”
  • The prosecution did not note the race of any of the non-black jurors and did not highlight the names of any of the non-black jurors on any of the four lists.
  • The prosecution circled the word “Black” on multiple juror questionnaires, but did not circle any other race identifiers.
  • The race-coded lists were circulated throughout the district attorney’s office, showing a culture and comfort level with making blatant race-based distinctions.
  • The prosecution ranked three black prospective jurors as B#1, B#2, and B#3 in case “it comes down to having to pick one of the black jurors.”
  • The prosecution also created strike lists that prioritized striking the black prospective jurors over any white prospective jurors. Black jurors were the first five of six prospective jurors on the prosecution’s list of “Definite NOs,” meaning they were slated for definite strikes.

The prosecutor’s race-coded venire lists and notes were not available to the trial judge who rejected the claim of discrimination at Foster’s trial and the Georgia Supreme Court, which upheld the conviction and death sentence on appeal.

The prosecutors claimed that they did not strike black jurors because of their race. They offered eight to twelve reasons for each strike of a black juror and added even more reasons after trial, undermining their credibility in the process. The sheer number of the reasons offered undermines the legitimacy of each individual reason. Moreover, some of the reasons were untrue, some were contradicted by the prosecutors’ notes or the record, and others applied equally to white prospective jurors whom the prosecution accepted.

  • The prosecutors asserted that they struck one African American because she was a social worker. But she was not a social worker.
  • The prosecutors said they struck one 34-year-old black woman because she was close in age to Foster, who was then 19. But the prosecutors accepted eight white prospective jurors who were 35 or under, including a white man who was just two years older than Foster and who served on the jury.
  • The prosecutors said they struck a black member of the Church of Christ because the church opposed the death penalty. However, the prosecution’s notes showed that the church did not oppose the death penalty and left the issue to each member. The black man whom they struck had repeatedly stated when answering questions during the jury selection process that he did not oppose the death penalty and could impose it.
  • The prosecutors said they struck a prospective black juror because Foster’s attorneys had not asked him about social and fraternal organizations. But the defense lawyers did not ask any jurors, black or white, about their memberships in social or fraternal organizations and, in his response to one of the questions on the questionnaire completed by all potential jurors, the juror had already said that he did not belong to any such organizations.

Resources on Foster v. Chatman