Demand the Impossible by Robert L. Tsai

Author:Robert L. Tsai
Language: eng
Format: epub
Publisher: W. W. Norton & Company
Published: 2024-03-15T00:00:00+00:00

Foster v. Chatman

Bright was wrapping up a final moot court session on a late Friday afternoon in Washington, D.C., in October 2015, preparing to argue his third capital case in front of the U.S. Supreme Court. Out of the blue, the Clerk of Court sent a letter to all counsel informing them that they “should expect questions at oral argument on whether certiorari in this case should be directed to the Supreme Court of Georgia or the Superior Court of Butts County, Georgia, and what significance, if any, that determination may have on the Court’s resolution of the case.” Because oral argument in the appeal had been scheduled for first thing Monday morning, this last-­minute communication set off a frenzy of activity. The justices’ odd message raised the possibility they might try to dispose of the appeal without getting to the merits of a tough constitutional issue for which Bright was demanding an answer.17

His client, Timothy Foster, a Black man, had been sentenced to death by an all-­White jury in 1986 for sexually assaulting and killing a White teacher during a burglary. He was eighteen at the time and confessed to the crime. As in Snyder v. Louisiana, the issue involved whether the state violated the Equal Protection Clause by removing Black citizens from the jury pool. During jury selection in Floyd County, one African American was excused for cause because a friend was related to Foster. Prosecutors Doug Pullen and Steve Lanier subsequently used their peremptory strikes to remove all four remaining Black jurors.

During sentencing, Foster’s lawyers asked jurors to consider his youth and intellectual disability as mitigating factors, as he had tested between 58 and 80 on IQ tests. His girlfriend, who incriminated him, had been in possession of some of the victim’s belongings—­Foster’s lawyers suggested that she or others may have been involved in the crime. Foster had a troubled background. His parents introduced him to drugs as a child. Foster’s own father refused to cooperate when lawyers reached out to him for help to save his son’s life. “I could always make another child,” he shrugged.

During closing argument before the all-­White jury on the question of appropriate punishment, District Attorney Lanier did the unthinkable: he openly appealed to Foster’s race and poverty, urging the jury to impose the death sentence “to deter other people out there in the projects.”

Foster had been tried shortly after the Court decided Batson and reflected troubling questions about how the legal rule would be enforced. Under the rules established by that decision, a defense objection that a juror had been excluded because of race forced the state to give a neutral explanation. Batson then required the trial judge to make a finding about the prosecutor’s true reason for removing that juror. During Foster’s trial, prosecutors responded to the new requirement to justify a peremptory strike when challenged by throwing the “kitchen sink” at the trial judge and daring him to find a problem. When challenged, prosecutors gave between eight and twelve separate reasons for excluding the Black jurors.

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