Richard Wolf

USA TODAY

WASHINGTON — The Supreme Court gave a black death-row prisoner new life Monday by ruling that prosecutors unconstitutionally barred all potential black jurors from his trial nearly 30 years ago.

The 7-1 verdict, written by Chief Justice John Roberts, reversed Georgia courts that had denied Timothy Foster's claim of racial bias in jury selection during his trial for the murder of an elderly white woman. The ruling is likely to fuel contentions from death penalty opponents that capital punishment is racially discriminatory.

Courts, states put death penalty on life support

What brought Foster's case back to court after three decades was a series of prosecution notes obtained by defense lawyers through an open-records request. While jurors were being picked, prosecutors had highlighted the names of African Americans, circled the word "black" on questionnaires, and added notations such as "B#1" and "B#2." On a sheet labeled "definite NO's," they put the last five blacks in the jury pool on top and ranked them in case "it comes down to having to pick one of the black jurors."

This happened just a year after the Supreme Court had declared such actions unconstitutional. Civil rights groups say discriminatory practices in jury selection have survived for 30 years despite the Supreme Court's 1986 ruling in Batson v. Kentucky.

"The focus on race in the prosecution's file plainly demonstrates a concerted effort to keep black prospective jurors off the jury," Roberts wrote. He said prosecutors' other purported reasons for striking two of the blacks from the jury pool were belied by their acceptance of white jurors with the same characteristics.

"Such evidence is compelling," Roberts wrote. "But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution's file."

Justice Clarence Thomas, the court's lone African American member, cast the lone dissent. "Foster's new evidence does not justify this court's reassessment of who was telling the truth nearly three decades removed from voir dire," he said.

Thomas warned that the court's ruling "invites state prisoners to go searching for new 'evidence' by demanding the files of the prosecutors who long ago convicted them."

The controversial case took the court nearly seven months to decide after oral argument in November. Roberts' opinion for himself and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan ran 25 pages. Thomas, who dissented, and Justice Samuel Alito, who concurred in the ruling, combined to write another 25 pages to express their views.

Alito contended that Georgia's courts still could deny Foster's effort to win a new trial by asserting that its prior rulings were based entirely on state law, rather than federal law. "It is important that we do not lightly brush aside the states’ legitimate interest in structuring their systems of post-conviction review in a way that militates against repetitive litigation and endless delay," he said.

Supreme Court takes up racial discrimination in jury selection

Prosecutors in Foster's case claimed other reasons for striking black jurors -- among them, that they were expecting to be accused of racial discrimination, so they singled out potential black jurors in their notes and listed several race-neutral reasons for opposing each one. But Deputy Attorney General Beth Burton acknowledged during oral argument in November that the prosecutors' notes "certainly can be interpreted in two ways."

At sentencing, the prosecutor urged the jury to impose death in order to "deter other people out there in the projects" — where 90% of the residents were black. Justice Elena Kagan summed it up this way during oral argument: "What it really was, was they wanted to get the black people off the jury."

The finding that Foster's constitutional rights were violated likely gives him a clear path to a new trial. More important, it could impact the way prosecutors, defense attorneys and trial judges handle jury selection in the future.

A recent study by the anti-death-penalty group Reprieve Australia showed that prosecutors in Caddo Parish, La., struck would-be jurors who were black three times as often as others. Another study in North Carolina in 2012 found blacks were twice as likely to be struck from juries by prosecutors. And in Houston County, Ala., from 2005 to 2009, prosecutors removed 80% of blacks qualified for jury duty, producing juries with either one black or none at all.

"Jury strikes motivated by race cannot be tolerated," said Foster's lawyer, Stephen Bright, president of the Southern Center for Human Rights. "The exclusion of black citizens from jury service results in juries that do not represent their communities and undermines the credibility and legitimacy of the criminal justice system.”

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