WASHINGTON, DC: Timothy Foster has spent nearly 30 years on Georgia’s death row. On Monday, his lawyer will speak before the Supreme Court to fight for his life, pointing to endemic racism in US jury selection and the death penalty.

Foster, an African American, was charged with the 1986 murder of a white woman, Queen White.

The prosecutor in the case removed all black potential jurors, and called for a death sentence to “deter other people out there in the projects”, referring to public housing.

During court proceedings, Foster obtained previously withheld notes from the prosecution showing prosecutors had highlighted the names of potential jurors who were black and marked them with a “B”. On separate juror questionnaires, the word “black” was circled next to the “race” question.

“It was clear that the priority of the prosecutor was to strike the blacks,” said Foster’s lawyer Stephen Bright.

In a brief filed to the court, Bright said “the evidence clearly establishes purposeful discrimination by the prosecution in securing an all-white jury” in order to obtain a death sentence and thus teach a lesson to “people out there in the projects”. A psychiatrist also testified at the trial that Foster was “in the borderline range for intellectual disability”, his IQ scores ranging from just 58 to 80 throughout his life.

And he is one of about 42 per cent of death row inmates who are black, according to the National Association for the Advancement of Colored People civil rights group. African Americans make up 12 per cent of the US population of 319 million.

In the end, Foster was unanimously found guilty by a jury of 12 whites.

Police and court racism

The Supreme Court, guardian of the US Constitution, has strictly prohibited jury selection decisions based on race, in various decisions.

“This is not a problem that has gone away, this is not a problem that is limited to the deep South,” said Christina Swarns, an expert on issues of race and criminal justice at the NAACP.

“This problem really persists throughout the country. In most instances, there are no consequences whatsoever to a prosecutor who engages in jury discrimination in jury selection,” she added.

A study recently conducted in Caddo Parish, Louisiana, showed that blacks are three times more likely than whites to be struck out of jury selection.

Swarns pointed to several studies showing that “diverse juries are far more thorough and effective than all white juries”, and namely make fewer factual errors.

Paradoxically, the ability to strike a juror has its roots in British law to protect the accused from the Crown.

This right has since been extended to prosecutors, who in turn are well aware that white juries are more severe than multi-ethnic juries, and that minorities are less inclined to back the death penalty.

An initial stage of jury selection is represented by a lengthy written questionnaire that is supposed to disqualify sectarian or politically-motivated individuals.

“In many jurisdictions, you get more peremptory challenges in capital cases than in other case, so the combination of disqualification and peremptory challenges disproportionately affects jurors of colour,” said Robert Dunham, executive director of the Death Penalty Information Center.

As a result, defendants facing trial in cities with large black minorities often face an all-white jury.

And Foster’s case comes before the highest jurisdiction in the land amid major soul-searching in the United States about racism and police brutality after a string of sometimes deadly incidents involving law enforcement and African Americans.

“Given that we have these very high-profile, racially-charged cases going in to courtrooms and possibly to juries, it’s critically important that we have a process that incorporates all qualified citizens,” said Swarns.—AFP

Published in Dawn, November 3rd, 2015

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