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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