Thirty-Year-Old Death Sentence Race-Biased

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By Nicholas Datlowe

May 23 — A Georgia man sentenced to death nearly 30 years ago convinced the U.S. Supreme Court that jury selection in his case was race-biased.

“Two peremptory strikes on the basis of race are two more than the Constitution allows,” Chief Justice John G. Roberts Jr. wrote for the seven-justice majority. Only Justice Clarence Thomas dissented.

“The Court had no choice,” Stephen B. Bright, who represented petitioner Timothy Foster, said in an e-mailed statement. “Jury strikes motivated by race cannot be tolerated.”

Paul Smith, an attorney with Jenner & Block, Washington, who represented several former prosecutors as amici on Foster's behalf, told Bloomberg BNA that the decision was intended to send a message: “ Batson means what it says. Take it seriously. We really mean this!”

But the case was complicated by a procedural issue which leaves it uncertain what relief—if any—Foster will receive.

‘Clear' Violation

Foster—who is black—admitted to the 1986 beating, sexual assault and strangling of a 79 year-old white widow.

Of 42 “qualified” jurors, five were black. One was struck for cause, but the remaining four were all struck peremptorily by prosecutors.

Foster argued that these strikes violated Batson v. Kentucky, 476 U.S. 79 (1986), which held it unconstitutional to strike potential jurors based on race. At trial and on direct appeal this argument was unsuccessful.

In 2006, however, Foster got the prosecution file from his case pursuant to a Georgia Open Records Act request. Armed with the information in the file, he sought habeas relief in state court. He was denied by the trial court, and the state supreme court denied review without opinion.

The documents in the prosecution file included juror lists where only the names of black potential jurors had been highlighted; a list of six “definite NOs” on which the names of all five black potential jurors appeared; a document referring to the congregation of one of the black potential jurors with the annotation “NO. No Black Church;” and a draft affidavit indicating which of the black jurors “might be okay” if prosecutors were forced to pick one.

Justice Elena Kagan suggested at oral argument that the strikes in this cases were “as clear a Batson violation as a court is ever going to see.”

Smith agreed May 23, saying that the facts were “pretty egregious.”

Laundry List

The court's opinion focused on two of the struck jurors.

In attempting to justify the strikes, prosecutors made laundry lists of potential race-neutral reasons for them—11 for one potential juror, eight for the other.

But the court was not impressed.

It noted that several of the proffered reasons were directly contradicted by the record. Other justifications were “difficult to credit because the State willingly accepted white jurors with the same traits that supposedly rendered” one of the black jurors unacceptable, such as age and martial status.

One of the potential jurors was supposedly struck either because his son had been convicted of “basically the same thing” as Foster was charged with, or because he belonged to a church that disapproved of the death penalty.

The latter justification was false—the church allowed members to reach their own decisions about the death penalty, and the juror had said four times he could impose it. The former was “nonsense,” the court wrote. His son had been convicted of stealing hubcaps from a car in a mall parking lot. That this could be “basically the same thing” as the capital murder charge Foster faced was “implausible” and “fantastic,” the court said.

The court also noted that the shifting justifications suggested pretext.

The prosecution file contents “plainly belie the State's claim that it exercised its strikes in a ‘color-blind' manner,” the court said. The “focus on race in the prosecution's file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

Thomas dissented, arguing that a “ Batson claim is, at bottom, a credibility determination,” and that great deference was owed to the state court's initial determination that the strikes were race-neutral.

The late Justice Antonin Scalia had made a similar point at oral argument.

Relief Uncertain

Though the decision reversed the state court, it was unclear what that will ultimately mean for Foster.

The Supreme Court noted that the trial court had denied Foster's habeas claim because it was barred by res judicata—he had already made the argument at trial and on direct appeal.

In so doing, however, it had engaged in a Batson analysis to determine whether the new facts justified habeas relief. This analysis depended on federal law enough to give the Supreme Court jurisdiction, notwithstanding that res judicata was a state law ground for denying relief.

Justice Samuel A. Alito Jr. concurred separately to highlight that on remand, the Georgia court “is bound to accept” that there was a Batson violation, “but whether that conclusion justifies relief under state res judicata law is a matter for that court to decide.”

“Compliance with Batson is essential to ensure that defendants receive a fair trial and to preserve the public confidence upon which our system of criminal justice depends. But it is also important that this Court respect the authority of state courts to structure their systems of postconviction review in a way that promotes the expeditious and definitive disposition of claims of error,” he wrote.

Smith said it was a possibility that the Georgia court would deny Foster's habeas petition again, on the basis of state law, but “the Batson holding is clear,” and in that regard it “wont have much slack” on remand.

Thomas also argued that the Supreme Court lacked jurisdiction, and “should have sought clarification that the resolution of a federal question was implicated in the Georgia high court's decision,” lest it render an impermissible advisory opinion.

The Office of the Attorney General of Georgia declined to comment on the decision.

To contact the reporter on this story: Nicholas Datlowe in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at and Jeffrey D. Koelemay at