Charles E. Richardson

Now the question is: Did he do it?

I was brought up believing justice would always prevail. It said so in all the comic books I read. My belief has been shattered many times, but I still hold on to it. Unfortunately, when justice comes — sometimes decades late — it does little good for the original actors in the play of life and sometimes death. This is one such case.

We are told — and it’s the law — that we are supposed to be judged by a jury of our peers. Last week, the U.S. Supreme Court, in a case from Georgia, had to reinforce that law by seeing what lower courts should have been able to see.

The case involved Timothy Foster. He was convicted of capital murder and sentenced to die for killing Queen Madge White, an elderly white woman, in her home in Rome when he was 18. The case went to trial in 1987.

The prosecutors in the case, for some reason, didn’t want blacks on the jury even though they knew it was illegal to keep them off due to a 1986 Batson v. Kentucky decision by the high court making race-based jury selection unconstitutional.

Here’s what they did. They identified the four prospective black potential jurors (there were more, but these four made it to the final pool) — Eddie Hood, Evelyn Hardge, Mary Turner and Marilyn Garrett. Though it was illegal to strike them because they were black, prosecutors could strike them for other reasons. They struck one because she was, they said, too young at 34. They struck another because she was divorced. They struck a black man because they said his son was the same age as the defendant and had been convicted of a “similar crime.”

So what happened? Lawyers for Foster made what is called a “Batson Challenge” during the trial, saying the jury selection process violated Foster’s rights. Their petition was denied. His lawyers brought it up again after sentencing and were again denied.

They sought a writ of habeas corpus from the Superior Court of Butts County, again pressing the Batson claim, and it was during this time, according to the Supreme Court brief, that an open records request revealed documents the prosecutors used to strike blacks from the jury. First, they had identified the potential black jurors with a “B” highlighted by their names and put a “NO” beside each one on their list.

What about the other reasons the prosecutors gave for striking them? All bogus. The black female they said was too young? Prosecutors didn’t strike two white females who were about the same age and allowed another who was just 21. The black divorced female? Hmmm. I guess black divorce is different from white divorce, because three white jurors were also divorced and were not struck. The black man was struck because they thought his son was about the same age as the defendant, but a white juror had the same situation and no strike for him. And as for that “similar crime” for the man’s son? Foster was on trial for murder, and the black man’s son had stolen some hubcaps five years earlier.

Chief Justice John Roberts used strong language in writing for the 7-1 majority. Justice Clarence Thomas is the only one who believed the prosecutors’ smoke screen. Roberts wrote:

“With respect to both Garrett and Hood (two of the potential jurors who were struck), such evidence is compelling. But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file. Considering all of the circumstantial evidence that ‘bear[s] upon the issue of racial animosity,’ we are left with the firm conviction that the strikes of Garrett and Hood were ‘motivated in substantial part by discriminatory intent.’”

How could this happen? Why did this case end up at the Supreme Court? Why didn’t the Georgia Supreme Court see in the evidence the same things the highest federal court saw? I guess that thought crossed the chief justice’s mind when he wrote, “The decision that Foster failed to show purposeful discrimination was clearly erroneous.” Ouch.

It does make you wonder. Foster supposedly confessed to the crime. Some of the elderly woman’s belongings were found in his possession and in the possession of his sisters. It would seem to be an open-and-shut case. So why did the prosecutors go to such lengths to make sure he was convicted and sentenced to the death penalty? Their shenanigans bring the veracity of the entire case into question.

Now a 30-year-old case will have to be reconstructed. That’s going to be difficult. Will Foster face the death penalty again? I would bet not, and the prosecutors will only have themselves to blame. Is Foster innocent or guilty? I have no idea, and now we may never know for sure. Either way, both Foster and Queen Madge White didn’t get their just due from Lady Justice.

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