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