Clarence Thomas — sees no evil, hears no evil
In 1986, Timothy Foster was tried and convicted for the murder of an elderly White woman, Queen Madge White, 79, in Rome, Georgia. The prosecutor decided to dismiss all potential Black jurors. Known as a peremptory strike, using this power for racial reasons had been ruled unconstitutional only months before the Foster v. Chatman case.
It took 30 years for the Supreme Court to rule that the prosecutors had violated Foster’s Sixth Amendment rights by striking those Black jurors. Rome is a small city in Georgia with a long history of racial segregation. District Attorney Stephen Lanier and Assistant District Attorney Douglas Pullen represented the State of Georgia at trial.
During the process known as voir dire, potential jurors are asked about their backgrounds. Prosecutors and defense counsel use this process to determine if potential jurors can decide the case without bias. Prosecutors Lanier and Pullen chose to compile a race-based list of the jury pool. Each Black juror was systematically struck because the prosecutors’ office believed that person could not view the facts in an unbiased manner. When Foster’s defense counsel objected, the judge sided with the prosecutor’s position that age, marital status, and personal circumstances were the basis for dismissing Black jurors.
Timothy Foster was found guilty and sentenced to death. His attorneys appealed. That same year, a few months earlier, the U.S. Supreme Court had ruled in the case of Batson v. Kentucky that using racial bias to strike potential jurors in a criminal case was unconstitutional and violated the Sixth Amendment. Despite the Batson ruling, Georgia’s appellate courts did not find the prosecutors in Foster case had violated the law. The U.S. Supreme Court refused to review the case in 1989 when it was first appealed. Then, in 2002, Foster used the Georgia Open Records Act to access the prosecutor’s file from his 1987 trial.
Although Georgia objected, a special state habeas corpus court overruled the objections and disclosed the voir dire documents. It was here that the evidence of racial bias was made clear to the Supreme Court. A notation on the document read: “No. No Black Church.” Under the name of one of the Black jurors, were the words: “If it comes down to having to pick one of the Black jurors, [this one] might be okay.
This is solely my opinion . . . Upon picking of the jury after listening to all of the jurors we had to pick, if we had to pick a Black juror I recommend that [this juror] be one of the jurors.” The letter “B” was written next to the name of each prospective Black juror. Clayton Lundy, an investigator who assisted the prosecutors testified that lists of prospective jurors were circulated around to secretaries and assistants in the district attorney’s office, which meant that anyone could have made the remarks. But, Lanier and Pullen said that they did not make any notations on the jury forms or write the comments.
Georgia defended its actions, arguing that race was not a factor in striking all of the potential Black jurors. The state’s briefs said “to discredit the prosecutor . . . The State and this community demand an apology.” The trial court agreed, concluding that “[i]n the totality of circumstances,” there was “no discriminatory intent, and that there existed reasonably clear, specific, and legitimate reasons” for each strike. Chief Justice John Roberts wrote that “our independent examination of the record, however, reveals that much of the reasoning provided by Lanier has no grounding in fact.” The Court’s 7-1 opinion found that there was “a concerted effort to keep black prospective jurors off the jury.” As a result the case will go back to the state court. Justice Clarence Thomas, the sole Black judge on the Court filed a dissent.
He found no bias on the part of the prosecutors. Gloria J. Browne-Marshall is the Supreme Court correspondent for AANIC (African-American News & Information Consortium), a professor of constitutional law at John Jay College (CUNY), and the author of the forthcoming book “The Voting Rights War: The NAACP and the Ongoing Struggle for Justice.”
