What the Timothy Foster Case Means for Discrimination Law

September 21, 2016

Timothy Foster was convicted of murder in Rome, Georgia in 1987 by an all-white jury and sentenced to death. He was just 19-years-old at the time. Prior to his trial, five potential jurors (all black) were struck. One for cause, and four others because the prosecution used their “peremptory strikes”.

Note: A peremptory strike allows either the prosecution or defense to strike potential jurors without providing a reason.

Timothy Foster brought his case all the way to the U.S. Supreme Court. He argued that the four peremptory strikes were used solely on the basis of race, and striking people because of their race was found unconstitutional by the Supreme Court in 1986.

On June 24, 2016, the U.S. Supreme Court overturned the Georgia Supreme Court in Foster v. Chatman. They held that the jury selection in Timothy Foster’s trial was unconstitutional. However, how far reaching this case truly is has been called into question.

To understand why this case may be limited in scope, you have to understand the 1986 decision in Batson v. Kentucky, and the truly unique facts of Timothy Foster’s trial.

In 1986, the Court ruled that while parties do not need to provide a reason for their peremptory strike. Jurors cannot be removed solely on the basis of race. In order to determine if race was the sole or deciding factor, the Court set up a three-step analysis. First, the Defendant must show that peremptory strikes were used to exclude all or most members of a particular race. Then, the analysis moves to the Prosecutors who must provide legitimate, non-racial reasons for using the strikes. The third step is for the judge(s) to determine whether the jurors were struck because of their race or for the reason Prosecutors provide.

The Georgia Supreme Court was not persuaded by Timothy Foster’s arguments. However, the U.S. Supreme Court overwhelmingly, in a 7-1 vote, held that at least two of the struck jurors were struck solely on the basis of race. The Court remanded the case to the Georgia Supreme Court to re-analyze and determine if Timothy Foster’s conviction should stand.

The scope of this decision, however, is likely limited. The decision was almost entirely tailored to the specific facts of Timothy Foster’s trial. Evidence of racial discrimination was egregious. Through the Georgia Open Records Law, Timothy Foster was able to review all the prosecution’s trial notes (not something that all Defendants would/will have access to). There he found notes specifically discussing the races of potential jurors. And it’s important to note that Timothy Foster’s trial was only a year after the Batson v. Kentucky decision. For better or worse, prosecutors may be better at hiding their biases in the present day.

The Timothy Foster decision bolsters the Batson v. Kentucky ruling and reaffirms that racial discrimination (across-the-board) is unconstitutional. There are questions as to how far this case will travel. It could be limited, but it could also be a door to showing racial bias in the use of the death penalty.

After the U.S. Supreme Court ruled on the Voting Rights Act in 2013 and in many people’s views “gutted” the Act, there were questions about what this Court would do, and how this Court views racial discrimination. But after the Timothy Foster ruling, and the decision to uphold the University of Texas’ consideration of race in admissions, perhaps the tide has turned.