The prosecutors seeking to send Timothy Tyrone Foster to death row went about their job in a curious manner. During jury selection, they highlighted each Black prospective juror’s name in green—on four different copies of the jury list—and wrote that the green highlighting “represents Blacks.” On each Black juror’s questionnaire, prosecutors circled the response “Black” next to a question about race. They also referred to three Black jurors as “B#1,” “B#2,” and “B#3” in their notes. Finally, the prosecution’s investigator ranked each Black juror against the others—in case “it comes down to having to pick one of the Black jurors.”
The prosecutors struck each Black candidate, one by one, from the jury pool until none remained. At the end of the trial, prosecutors asked the jury to impose the death penalty on Foster, to “deter other people out there in the projects.” The all-White jury convicted Foster of murder and sentenced him to death. Foster, a Black man, appealed his conviction to the Georgia Supreme Court. Striking Black jurors on account of their race is unconstitutional, and Foster believed he deserved a new trial. But the Georgia Supreme Court rejected his claim. Prosecutors had not “demonstrated purposeful discrimination” in striking Black jurors, the court held. There was no racial bias in the prosecution of Timothy Tyrone Foster. His execution could move forward.
On Tuesday, the U.S. Supreme Court announced it will review the Georgia Supreme Court’s decision. The case, Foster v. Humphrey, gives the justices a chance to correct a gross miscarriage of justice—the insidious racism that so often infects the prosecution of Black defendants. A victory for Foster could put a dent in the kind of misconduct that unscrupulous prosecutors use to put Black defendants behind bars.