Georgia Prisoner Gets Death Penalty Case Tossed 30 Years Later Arguing Discrimination

Supreme Court Finds Racial Bias in Jury Selection

ByABC News
May 23, 2016, 4:02 PM

— -- A black man who was convicted of capital murder and sentenced to death by an all-white jury in Georgia, has successfully convinced the Supreme Court that the jury selection in his case was racially biased three decades later.

The defendant, Timothy Foster, argued that the prosecution violated his rights by using race as a determining factor during jury selection.

Both the trial court and the Georgia Supreme Court initially rejected his claim, but Foster eventually obtained copies of the file used by the prosecution during his trial, which helped move his case to the Supreme Court.

He will likely get a new trial, nearly 30 years after his original sentencing.

What the Court Decided

Chief Justice John Roberts, joined by Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, with a concurrence by Samuel Alito, concluded that the Georgia courts’ determination that Foster failed to show purposeful discrimination was "clearly erroneous." Clarence Thomas was the only justice to dissent.

"[T]he focus on race in the prosecution's file plainly demonstrates a concerted effort to keep black prospective jurors off the jury," Roberts wrote.

Stephen Bright, Foster's lawyer and President of Southern Center for Human Rights, said that the discrimination only became apparent because they obtained the prosecution’s notes "which revealed their intent to discriminate."

"The Court had no choice. The prosecution’s notes which were discovered and introduced as evidence left no doubt that the strikes were motivated by race to get an all-white jury," he said in a statement released after the Supreme Court's decision.

"Jury strikes motivated by race cannot be tolerated. 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."


Foster, who was 18 years old at the time, was arrested and convicted for the 1986 murder of a 79-year-old retired school teacher in Rome, Georgia. The state used "peremptory challenges" to strike all four qualified black prospective jurors during jury selection. Foster argued that the state's strikes were racially motivated.

Foster was convicted and sentenced to death.

Long after his trial, Foster obtained previously withheld prosecutors' notes, in which the prosecution wrote the letter “B” next to the names of prospective black jurors, circled the word "black" on questionnaires, identified prospective black jurors as B#1, B#2, etc, and had a note that said "if it comes down to having to pick one of the black jurors,[this one] might be okay," according to the opinion.

An "N" for "no" appeared next to each of the black prospective jurors' names.

He argued that the prosecution violated his rights during jury selection, before, during and after his trial, according to the court.

The question is whether these facts constitute race discrimination under the Supreme Court’s Batson case, in which the Court set forth a framework for evaluating the use of race in jury selection.


Roberts has not always been receptive to claims of race discrimination, but this is a strong and sweeping condemnation of the conduct of the Georgia prosecutors in this case, whose attempts to argue that these strikes were not motivated by race he finds totally implausible.

In today's opinion, he wrote that "prosecutors were motivated in substantial part by race."

"Two peremptory strikes on the basis of race are two more that the Constitution allows," said the opinion.

Analysis by ABC News' Supreme Court Consultant Kate Shaw.