The right to a trial by a jury of your peers is one of the oldest in our legal tradition, reaching all the way back to 13th century England and the Magna Carta. It is embedded in the U.S. Constitution as well.
But Timothy Foster, a black man from Rome, has been denied that basic right by the state of Georgia, and unless the U.S. Supreme Court intervenes, he may die as a result.
Here are the facts:
In 1987, Foster was an 18-year-old with a history of drug use and crime. He was arrested in the truly brutal murder of Queen White, a 79-year-old retired white teacher, and he confessed his guilt, leaving the jury to determine whether he deserved to die. Again, there’s no question about the cruelty of White’s murder. But the Rome News-Tribune recently interviewed Foster’s defense attorney, who recalled trying to convince Foster’s father to testify in the penalty phase of his son’s trial. The father refused.
“He told me ‘We smoke our dope, we laugh and I can always make another kid,’” Bob Finnell said. “You wonder how could somebody say that about his child. It was chilling.”
Thanks to prosecutor notes obtained through an open records demand, we now know that prosecutors consciously conspired to deny Foster a jury of his peers. Prosecutors highlighted the race of every potential black person in the jury pool. In another document, black potential jurors were marked with the notation #B1, #B2, #B3, etc. They were all listed on a third document labeled “Definite NO”.
In the end, prosecutors got the all-white jury they wanted, and that all-white jury then sentenced Foster to death.
As far back as 1880, however, the Supreme Court had ruled that it is unconstitutional to deny people the right to sit on a jury by virtue of their race. That was long before the civil rights movement, but even back then the logic was clear. “It is not easy to comprehend how it can be said that, while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, … a negro is not.”
So in securing that all-white jury, prosecutors in the Foster case — officers of the court who were sworn to uphold the Constitution — were in fact consciously attempting to violate it. They knew that it was illegal to use racial profiling in selecting a jury, but to get the outcome they sought, they established an elaborate system to do so anyway.
Larry Thompson, the former deputy attorney general in the Bush administration and a former U.S. prosecutor here in Georgia, has joined seven other well-known prosecutors in a brief to the Supreme Court in support of Foster, concluding that “the evidence of purposeful discrimination is overwhelming.” They also cite evidence that thousands of defendants around the country continue to be subjected to that same miscarriage of justice, noting that “unconstitutional discrimination has no place in a conscientious prosecution.”
Foster’s case was argued last week before the Supreme Court, but technical procedural questions may prevent the court from deciding it on its merits anytime soon. However, the bottom line is pretty clear: Prosecutors cannot uphold the law by breaking it, and that’s what too many are doing.