The Timothy Foster case pitted a black man, accused of sexually assaulting and killing a white woman, up against an all-white jury. Foster was sentenced to death. The United State Supreme Court ruled recently that prosecutors unconstitutionally allowed racial considerations to taint the jury selection process. University of Miami School of Law criminal and constitutional law professor Donald Jones looks at the galvanizing case.
Why was the Supreme Court’s decision in the Timothy Foster case significant?
Timothy Foster, a black man, was convicted of sexually assaulting and killing Queen Madge White, a white female, almost thirty years ago. He was subsequently sentenced to death. Foster argued that the jury selection in his case was racially biased and that he deserved a new trial. In the past, the Supreme Court has generally dismissed claims of discrimination in death penalty cases on the unanchored premise that we should presume that states act in a color-blind manner. In keeping with that the supreme court has rejected numerous claims of racial discrimination in death penalty cases despite compelling evidence of systemic discrimination. This time, for once, they did not side with the state. They were sensitive and delivered a resounding rebuke to the state of Georgia.
Isn’t racial discrimination in a death penalty case difficult to prove?
Yes, it is. It is possible to prove that systemic discrimination exists within a state’s administration of the death penalty. Professor David Baldus's research on racial discrimination in death penalty sentencing proved that in a case called McClesky v. Kemp against the state of Georgia. But that is not enough. The Supreme Court decided that before any defendant is entitled to a new trial he must satisfy the standard under a case called Batson, which looks at peremptory challenges to juror dismissal, to prove that there was intentional discrimination in his specific case. To satisfy Batson the defendant generally has to overcome a strong presumption that the state is colorblind. Statistics cannot do that. Few overcome this presumption.
So if in the past the court essentially rubber stamped death penalty convictions, what do you think accounts for the change in this case?
Two things. First, in the words of Steven Bright, Foster’s lawyer, there were “several smoking guns in this case.” The prosecutor literally made racial notations beside the names of the jurors before using four of its peremptory challenges to create an all-white jury. This information was kept from the defense for over twenty years. One the Defense had access to the notes they opened a window on blatant bias on the part of the prosecution in the trial of this case. But there is a social dimension to this as well. The majority of Americans still strongly support the death penalty. But at the same time, Americans are becoming far more sensitive to unfairness in the criminal justice system where the death penalty is concerned, studies have shown this. I suspect this changing sentiment has spilled over into the opinions of the Supreme Court. The Supreme court is still very conservative, but on this issue, the winds of change are starting to blow.
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