On Monday morning, the Supreme Court overturned the conviction and sentence of Georgia death row inmate, Timothy Foster, in a 7-1 decision based on racial bias in the jury selection process for his trial.  Timothy Foster was a poor black youth tried for the murder of a white woman in Georgia in 1987. In the jury selection process, the prosecution struck all of the potential African American jurors from the jury, a practice which is unconstitutional but hard to prove as other reasons are often given for the strikes. After seating an all-white jury in the case, the prosecution urged them to sentence Foster to death to “deter other people out there in the projects,” referring to the the housing projects in Rome, GA, were Timothy Foster grew up, which were 90% black at the time. The jury obliged and gave Foster the death sentence.

A 2010 review of the jury selection process in eight Southern states (including Tennessee) by Equal Justice Initiative found evidence of racial discrimination in jury selection in every one of those states; a 2012 North Carolina study found eligible black jurors struck at twice the rate of whites; and a 2003 Louisiana study found it was three times the rate.

In 2006, through an open records request, the Southern Center for Human Rights obtained the prosecution’s notes from jury selection in Foster’s 1987 trial. The notes eliminated any doubt that the strikes were based on race.

According to an op-ed by Stephen Bright, senior counsel and president at the Southern Center for Human Rights, “in the notes, the prosecutors demarcated the black jurors’ names at least six different ways, including marking the names of black prospective jurors with a “B,” highlighting them in green, and circling the word “black” next to the “race” question on the juror questionnaires of black prospective jurors. The notes revealed that the prosecutors ranked the black potential jurors against one another and included all of them as the first names on their list of “Definite NOs” — potential jurors who would definitely be struck.”

On Monday, the U.S. Supreme Court recognized the racial discrimination at play in this case, though Georgia’s state courts had refused to do so. Chief Justice Roberts weighed in on the decision:

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. Even after the undeniable evidence of discrimination was presented in this case, the Georgia courts ignored it and upheld Foster’s conviction and death sentence.

But what about all the other Timothy Fosters out there? The discovery of prosecutors’ notes rarely happens. Still there is little doubt that such bias in jury selection is pervasive, as shown by the numerous studies referenced. Such bias and exclusion delegitimize the process and serve as a way to stack the deck in favor of the prosecution since prosecutors believe that all-white juries are more likely to convict and sentence defendants to death than racially diverse juries.

Monday’s decision won’t end racial bias and discrimination in jury selection. But, it is an acknowledgement of what many of us have known for a long time. The process continues to be unfair and racially biased. Under such circumstances, how can we possibly continue to utilize the death penalty?

Read More

Racial Discrimination in Tennessee’s Jury Selection Process 

Additional Study: Illegal race discrimination in jury selection

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Another possibly innocent man has died on death row.

On April 24^th, Max Soffar, age 60, passed away from liver cancer after 35 years on Texas’s death row. Soffar confessed after an illegal three-day interrogation and was convicted and sentenced to death for the murder of three people in a Houston bowling alley. Soffar suffered from brain damage from fetal alcohol syndrome, had a mental illness, and a drug addiction. Furthermore, there was neither DNA evidence nor witnesses tying Soffar to the crime scene.

In fact, there was convincing evidence that an alternative suspect committed the murders, TN death row inmate Paul Reid, who himself died of natural causes on Tennessee’s death row a few years ago. Several nights before the murders, there were reports of a man threatening to kill everyone in the bowling alley after being thrown out of it. A witness later identified him as Paul Reid. Further evidence implicating Reid included his past residency in Texas, another ID by a witness at the scene of the crime, and the fact that the murders Reid was convicted of committing in Tennessee fit a similar pattern to the Texas murders.

Soffar was granted a retrial in 2004 because of ineffective assistance of counsel in his 1981 trial. He filed to dismiss the charges because of the outdated evidence, but the courts placed the blame for the delay on his appeals, though prosecutors had participated in delaying the proceedings for over two decades.

His final appeal date was scheduled for April 27^th.

The case of Max Soffar is a heart-breaking example of a system where process often trumps justice. Brian Still, one of Soffar’s attorneys, commented on the death penalty saying:

“It distorts the process, destroys the promise of a jury of peers (because only those willing to hand down a death sentence can serve), diverts resources badly needed to separate the guilty from the innocent, and needlessly risks the only thing worse than the nightmare my friend endured for 35 years.”

We couldn’t agree more.

Sam Turpen, Intern TADP

Read the full story

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On Saturday, a Memphis jury found Michael Rimmer guilty again and sentenced him to death for the third time. He was originally sentenced to death in 1998 for the murder of Ricci Ellsworth, who disappeared from her job as a night clerk in a Memphis hotel in 1997. He was resentenced to death in 2004.

USA Today wrote an in depth piece on Rimmer’s case in 2011, reporting that Shelby County Assistant District Attorney Thomas Henderson withheld critical evidence from the defense of a very credible witness who saw two different men at the bloody crime scene on the night of Ellsworth’s disappearance —not Michael Rimmer.

In 2012, Judge James Beasley overturned Rimmer’s conviction and sentence, granting him a new trial. The Judge wrote in his order that “Henderson’s assertions in the 1998 and 2004 cases that ‘he knew of no evidence exonerating or exculpating (Rimmer)’ were blatantly false, inappropriate, and ethically questionable.”

Still, even with the evidence of these alternative suspects at the crime scene, the jury determined that the evidence against Rimmer was enough to find him guilty again. Because Rimmer did not provide any mitigating evidence during sentencing, the jury sentenced him to death again as well.

On May 6, the Commercial Appeal reported that Ricci Ellsworth’s family members, though “completely for the death penalty,” were hoping that with this retrial the case “would be over for good.” The family conceded that life without parole would suffice as they wanted to avoid the opportunity for further appeals.

Sadly, the family did not get what they wanted.  Instead, Michael Rimmer will now begin the appeals process all over again because he received another death sentence. If the death penalty had not been an option, the Ellsworth family might have been able to get some legal finality after nearly 20 years of waiting, but with the death sentence handed down again, they won’t.

This case demonstrates just how dysfunctional the death penalty system has become. Because the prosecution withheld critical evidence for years–evidence which obviously wasn’t enough to keep a jury from finding Rimmer guilty–a new trial was needed to be sure a jury got all the facts. And, if the state had not pursued death again, the Ellsworth family would likely have gotten what they hoped for–life without parole and legal finality. The state would have saved millions, given that capital trials are at least twice as expensive as noncapital trials (Tennessee Comptrollers Report, 2004), never mind the savings on the appeals.

Instead, taxpayers are on the hook for the cost of three capital trials in just this one case, and the process starts all over again.

Who does the death penalty system serve here? Who benefits from yet another death sentence in this case? Not the Ellsworth family. Not Tennessee taxpayers. No one.

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Support TADP through The Big Payback today!

Last year TADP raised $4,000 through The Big Payback, and we hope to top that number this year!

The Big Payback is a 24-hour, on-line giving event to increase philanthropy in the 40 counties served by The Community Foundation of Middle Tennessee. The goal is to inspire Tennesseans to come together and contribute to the life-changing work of local non-profits like TADP.

You can make a donation by filling by clicking the Big Payback logo at the top of the screen. The event ends at midnight so time is short!

We hope you will consider making a spring gift to TADP.

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