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Sentenza Foster della Corte Suprema degli Stati Uniti: commento dell'Avv. Bruno Micolano

22 giugno 2016



Anti-discrimination law saves a convicted man from the death penalty: an important U.S. Supreme Court ruling of May 23, 2016, in Foster v. Chatman, 578 U.S. (2016).


Timothy Foster, who confessed to murder, was sentenced to death by the local courts of Georgia.

A sentence also confirmed by the State Supreme Court.

Timothy Foster is an African-American.

At his trial, 4 black prospective jurors were struck on grounds of their representing the Afro-American community.


The Court in Washington granted certiorari, ruling that there had been a violation of the law that prohibits all forms of discrimination, including on the basis of race.

The death sentence – a very rare example in the case law of the Supreme Court – was reversed and the trial was remanded to another local court for further proceedings.

Among the noteworthy details, we note that the sole dissenting opinion was expressed by Judge Thomas, who, as everyone knows, is black.

Let us read:

“Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State exercised peremptory strikes against all four black prospective jurors qualified to serve. Foster argued that the State’s use of those strikes was racially motivated, in violation of our decision in Batson v. Kentucky, 476 Ti 5. 79 (1986). The trial court and the Georgia Supreme Court rejected Foster’s Batson claim.

Foster then sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, renewing his Batson objection. That court denied relief, and the Georgia Supreme Court declined to issue the Certificate of Probable Cause necessary under Georgia law for Foster to pursue an appeal. We granted certiorari and now reverse.

On the morning of August 28, 1986, police found Queen Madge White dead on the floor of her home in Rome, Georgia. White, a 79-year-old widow, had been beaten, sexually assaulted, and strangled to death. Her home had been burglarized. Timothy Foster subsequently confessed to killing White, and White’s possessions were recovered from Foster’s home and from Foster’s two sisters. The State indicted Foster on charges of malice murder and burglary. Re faced the death penalty. Foster v. State, 258 Ga. 736, 374 5. E. 2d 188 (1988).

District Attorney Stephen Lanier and Assistant District Attorney Douglas Pullen represented the State at trial. Jury selection proceeded in two phases: removals for cause and peremptory strikes. In the first phase, each prospective juror completed a detailed questionnaire, which the prosecution and defense reviewed. The trial court then conducted a juror-by-juror voir dire of approximately 90 prospective jurors. Throughout this process, both parties had the opportunity to question the prospective jurors and lodge challenges for cause. This first phase whittled the list down to 42 “qualified” prospective jurors. Five were black.

In the second phase, known as the “striking of the jury,” both parties had the opportunity to exercise peremptory strikes against the array of qualified jurors. Pursuant to state law, the prosecution had ten such strikes; Foster twenty. See Ga. Code Ann. § 15-12-165 (1985). The pro cess worked as follows: The clerk of the court called the qualified prospective jurors one by one, and the State had the option to exercise one of its peremptory strikes. If the State decided to strike a particular prospective juror, Foster then had the opportunity to do so. If neither party exercised a peremptory strike, the prospective juror was selected for service. This second phase continued until 12 jurors had been accepted.

The morning the second phase began, Shirley Powell, one of the five qualified black prospective jurors, notified the court that she had just learned that one of her dose friends was related to Foster. The court removed Powell for cause. That left four black prospective jurors: Eddie Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett.

The striking of the jury then commenced. The State exercised fine of its ten allotted peremptory strikes, removing all four of the remaining black prospective jurors. Foster immediately lodged a Batson challenge. The trial court rejected the objection and empanelled the jury. The jury convicted Foster and sentenced him to death.

Following sentencing, Foster renewed his Batson claim in a motion for a new trial. After an evidentiary hearing, the trial court denied the motion. The Georgia Supreme Court affirmed, 258 Ga., at 747, 374 S. E. 2d, at 197, and we denied certiorari, Foster v. Georgia, 490 U. S. 1085 (1989).

Foster subsequently sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, again pressing his Batson claim. While the state habeas proceeding was pending, Foster filed a series of requests under the Georgia Open Records Act, see Ga. Code Ann. §50-18-70 to 50-18-77 (2002), seeking access to the State’s file from his 1987 trial. In response, the State disclosed documents related to the jury selection at that trial. Over the State’s objections, the state habeas court admitted those documents into evidence. They included the following:

(1) Four copies of the jury venire list. On each copy, the names of the black prospective jurors were highlighted in bright green. A legend in the upper right corner of the lists indicated that the green highlighting “represents Blacks.” See, e.g., App. 253. The letter “B” also appeared next to each black prospective juror’s name. See, e.g., ibid. According to the testimony of Clayton Lundy, an investigator who assisted the prosecution during jury selection, these highlighted venire lists were circulated in the district attorney’s office during jury selection. That allowed “everybody in the office”-approximately “10 to 12 people,” including “[secretaries, investigators, [and] district attorneys” - to look at them, share information, and contribute thoughts on whether the prosecution should strike a particular juror. Pi. Exh. 1, 2 Record 190, 219 (Lundy deposition) (hereinafter Tr.). The documents, Lundy testified, were returned to Lanier before jury selection. Id., at 220.

(2) A draft of an affidavit that had been prepared by Lundy “at Lanier’s request” for submission to the state trial court in response to Foster’s motion for a new trial. Id., at 203. The typed draft detailed Lundy’s views on ten black prospective jurors, stating “[m]y evaluation of the jurors are a[s] follows.” App. 343. Under the name of one of those jurors, Lundy had written:

“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.” Id., at 345 (paragraph break omitted).

That text had been crossed out by hand; the version of the affidavit filed with the trial court did not contain the crossed-out language. See id., at 127—129. Lundy testified that he “guess[edj” the redactions had been done by Lanier. Tr. 203.

(3) Three handwritten notes on black prospective jurors Eddie Hood, Louise Wilson, and Corrie Hinds. Annotations denoted those individuals as “B41,” “B#2,” and “B#3,” respectively. App. 295-297. Lundy testified that these were examples of the type of “notes that the team- the State would take down during voir dire to help select the jury in Mr. Foster’s case.” Tr. 208—2 10.

(4) A typed list of the qualified jurors remaining after voir dire. App. 287—290. It included “Ns” next to ten jurors’ names, which Lundy told the state habeas court “signif[ied] the ten jurors that the State had strikes for during jury selection.” Tr. 211. Such an “N” appeared alongside the names of all five qualified black prospective jurors. See App. 287-290. The file also included a handwritten version of the same list, with the same markings. Id., at 299-300; see Tr. 212. Lundy testified that he was unsure who had prepared or marked the two lists.

(5) A handwritten document titled “definite NO’s,” listing six names. The first five were those of the five qualified black prospective jurors. App. 301. The State concedes that either Lanier or Pullen compiled the list, which Lundy testified was “used for preparation in jury selection.” Tr. 215; Tr. of Oral Arg. 45.

(6) A handwritten document titled “Church of Christ.” A notation on the document read: “NO. No Black Church.” App. 302.

(7) The questionnaires that had been completed by several of the black prospective jurors. On each one, the juror’s response indicating his or her race had been circled. Id., at 311, 317, 323, 329, 334.

In response to the admission of this evidence, the State introduced short affidavits from Lanier and Pullen. Lanier’s affidavit stated:

“I did not make any of the highlighted marks on the jury venire list. It was common practice in the office to highlight in yellow those jurors who had prior case experience. I did not instruct anyone to make the green highlighted marks. I reaffirm my testimony made during the motion for new trial hearing as to how I used my peremptory jury strikes and the basis and reasons for those strikes.” Id., at 169 (paragraph numeral omitted).

Pullen’s affidavit averred:

“I did not make any of the highlighted marks on the jury venire list, and I did not instruct anyone else to make the highlighted marks. I did not rely on the highlighted jury venire list in making my decision on how to use my peremptory strikes.” Id., at 170-171 (paragraph numeral omitted).

Neither affidavit provided further explanation of the documents, and neither Lanier nor Pullen testified in the habeas proceeding.

After considering the evidence, the state habeas court denied relief. The court first stated that, “[a]s a preliminary matter,” Foster’s Batson claim was “not reviewable based on the doctrine of res judicata” because it had been “raised and litigated adversely to [Foster] on his direct appeal to the Georgia Supreme Court.” App. 175. The court nonetheless announced that it would “mak[e] findings of fact and conclusions of law” on that claim. Id., at 191. Based on what it referred to as a “Batson ... analysis,” the court concluded that Foster’s “renewed Batson claim is without merit,” because he had “fail[ed] to demonstrate purposeful discrimination.” Id., at 192, 195, 196.

The Georgia Supreme Court denied Foster the “Certificate of Probable Cause” necessary under state law for him to pursue an appeal, determining that his claim had no “arguable merit.” Id., at 246; see Ga. Code Ann.

  • 9-14-52 (2014); Ga. Sup. Ct. Ruie 36 (2014). We granted certiorari. 575 U.S. (2015).”

It will be interesting to see how this case unfolds.

Will the Georgia Court hand down another death sentence, even with a different jury, or will the convicted man be saved from lethal injection?

A last important detail: the facts date back to 1986: Foster has been on death row for thirty years!!!

One cannot help thinking of the famous decision of the Strasbourg Court in the Soering case (July 7, 1989, Soering v. UK), in which the European judges refused the extradition of the accused to the USA, which was demanding it, since the period of time spent on death row would in itself be a form of psychological torture contrary to Article 3 of the European Convention on Human Rights.


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