Supreme Court Rules Georgia Prosecutors Struck Death Penalty Jurors Because They Were Black, Grants New Trial

On May 23, 2016, the U.S. Supreme Court over­turned the con­vic­tion and death sen­tence of Timothy Foster (pic­tured) 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. Foster is now enti­tled to a new trial. 

Foster, who is black, was sen­tenced to death 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 those strikes under the 1986 Supreme Court deci­sion Batson v. Kentucky, which banned the prac­tice of strik­ing jurors on the basis of race, but the tri­al court cred­it­ed the race-neu­tral rea­sons for the strikes that pros­e­cu­tors offered at the time. 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.” 

Foster filed anoth­er Batson claim in the state courts after hav­ing dis­cov­ered these notes, but the Georgia Supreme Court reject­ed it, say­ing the issue had already been adju­di­cat­ed. The U.S. Supreme Court said that the Georgia Supreme Court’s deci­sion was ​“clear­ly erro­neous.” ​“Foster estab­lished pur­pose­ful dis­crim­i­na­tion in the State’s strikes of two black prospec­tive jurors,” the Court said. ​“Evidence that a prosecutor’s rea­sons for strik­ing a black prospec­tive juror apply equal­ly to an oth­er­wise sim­i­lar non­black prospec­tive juror who is allowed to serve tends to sug­gest pur­pose­ful dis­crim­i­na­tion.” Among the rea­sons giv­en by pros­e­cu­tors for strik­ing one black juror, Marilyn Garrett, includ­ed her age and the fact that she was divorced, but they allowed three out of four divorced white jurors to serve, and also allowed ser­vice by white jurors of sim­i­lar age to Garrett. 

Stephen Bright, an attor­ney for Foster, said, ​“The deci­sion in this case will not end dis­crim­i­na­tion in jury selec­tion. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elim­i­na­tion of peremp­to­ry strikes. The choice going for­ward is between the elim­i­na­tion or reduc­tion of peremp­to­ry strikes or con­tin­ued dis­crim­i­na­tion. Jury strikes moti­vat­ed by race can­not be tol­er­at­ed. The exclu­sion of black cit­i­zens from jury ser­vice results in juries that do not rep­re­sent their com­mu­ni­ties and under­mines the cred­i­bil­i­ty and legit­i­ma­cy of the crim­i­nal justice system.”