In a significant ruling from the Supreme Court yesterday, the Court reversed the conviction and death sentence of a Georgia man on the basis that prosecutors intentionally discriminated by excluding blacks from the jury. Timothy Foster, an 18-year old black man, was convicted by an all-white jury in 1987 of murdering an elderly white woman.
In 1986, the Supreme Court ruled in Batson v. Kentucky that excluding people of color from juries violates the equal protection clause of the Fourteenth Amendment. Even still, prosecutors have continued the widespread practice of seeking to remove non-whites from juries on pretextual grounds. In Mr. Foster’s case, prosecutors excluded every single black prospective juror. When challenged to provide reasons for excluding blacks, prosecutors provided race-neutral explanations and the courts accepted them.
Cut to 20 years later. By an open records request, attorneys for Mr. Foster were finally allowed to see the prosecution’s notes – notes they’d been trying to see for two decades. Here it was written plain as day: the reason those jurors were excluded was race.
Black prospective jurors were marked in the prosecution’s notes with a “B,” and highlighted in green with a note that green highlighting “represents Blacks.” They were all included in a list of “Definite NOs,” and were prioritized over white jurors for strikes. There was even a note ranking prospective black jurors against each other in case “it comes down to having to pick one of the black jurors.”
When challenged to provide race-neutral reasons for striking black jurors, the prosecution had told another story. Some jurors were excluded for being too young, they said, or divorced, or for their religious affiliation, or because they had children the same age as the defendant.
The Court’s ruling yesterday saw right through those excuses, even though the Georgia Supreme Court had accepted them. Those reasons applied equally to white jurors who were allowed to serve – jurors of similar age or with children of similar age, or with the same marital status or religious affiliation. Based on the prosecution’s notes, the Court found that two jurors were excluded simply because of their race.
This is a significant ruling for identifying and addressing racism in the death penalty, but it by no means solves the problem. According to Stephen Bright, lead attorney in the case, “This discrimination became apparent only because we obtained the prosecution’s notes which revealed their intent to discriminate. Usually that does not happen. The practice of discriminating in striking juries continues in courtrooms across the country. Usually courts ignore patterns of race discrimination and accept false reasons for the strikes.”
As millions of Amnesty activists around the world have known for decades, the only way to end the injustice of the death penalty is to abolish it once and for call. In the meantime, we celebrate the great news for Mr. Foster and his legal team at the Southern Center for Human Rights.