The Supreme Court threw out a Georgia man’s conviction for murder on Monday, possibly opening the way for a new trial. Timothy Foster was convicted by an all-white jury in the murder of an elderly white woman approximately 20 years ago. While Foster did not deny the crime, which happened during the commission of a burglary, he contended that he did not receive a fair trial due to the exclusion of African Americans from the jury.
In Batson v. Kentucky, the Supreme Court ruled that African Americans could not be excluded from juries simply on the basis of race. That was back in 1986. Of course, that didn’t mean it ceased to happen—it just meant that prosecutors had to work harder when it came to keeping black people off of juries and come up with more creative reasons. So either the prosecutors in Georgia never got that memo, or it just wasn’t part of the curriculum in law school. Because these brilliant legal eagles left a paper trail of their bias that was so tantalizing, the Supreme Court justices must have salivated and said, “Yeah! Let’s decide this case!!!”
The prosecutors seeking to send Timothy Tyrone Foster to death row went about their job in a curious manner. During jury selection, they highlighted each black prospective juror’s name in green—on four different copies of the jury list—and wrote that the green highlighting “represents blacks.” On each black juror’s questionnaire, prosecutors circled the response “black” next to a question about race. They also referred to three black jurors as “B#1,” “B#2,” and “B#3” in their notes. Finally, the prosecution’s investigator ranked each black juror against the others—in case “it comes down to having to pick one of the black jurors.”
The prosecutors struck each black candidate, one by one, from the jury pool until none remained.
The scheming of prosecutors to keep black people off of juries came to widespread attention after video surfaced in 1987 of Philadelphia District Attorney Jack McMahon speaking to new DAs on the kinds of people they should—and should not—want on a jury. You can watch a 57-second clip of that training video below.
Both prosecutors and defense attorneys are allowed peremptory strikes whereby they can remove a prospective juror from the jury pool for whatever reason they like. But prosecutors are not supposed to use all of their strikes to remove African American jurors which, obviously, they do. Calls to rein in the use of peremptory strikes have come from many corners, including former Supreme Court Justice Thurgood Marshall. Attorney Stephen Bright, who has long represented indigent and death row prisoners throughout the Southern U.S., argued Timothy Foster’s case before the Supreme Court. He has also made his opinions of peremptory strikes known:
“It just makes such a farce of the system,” he said. “Nobody—the judge, the prosecutor, the defense lawyers—nobody thinks the reasons are really the reasons they strike the people. They strike the people because of their race. I mean, we all know that. And then you try to come up with a good reason for doing it and see if you can get away with it.”
“You’re asking the judge to say that the prosecutor intentionally discriminated on the basis of race, and that he lied about it,” he went on. “That’s very difficult psychologically for the average judge.”
It may be difficult, but its definitely necessary.