U.S. Supreme Court
U.S. Supreme Court (Photo: Diego M. Radzinschi/THE NATIONAL LAW JOURNAL)

The U.S. Supreme Court on Tuesday agreed to take up a Georgia death penalty case in which an inmate is challenging his conviction based on notes the defense contends show the prosecution improperly considered prospective jurors’ race.

The rare grant of certiorari means the high court will examine in its next term a 1987 Floyd County murder trial. Timothy Tyrone Foster, a black man who was 18 years old when he was charged, was convicted of the murder of Queen White, an elderly, white, retired schoolteacher.

After Foster lost his direct appeal, he gained access to the prosecution’s jury selection notes under the state’s Open Records Act. According to his lawyers at the Southern Center for Human Rights, those notes show that the prosecution marked the name of each black prospective juror with a green highlighter on jury lists, and the prosecution’s investigator ranked black jurors against each other in case “it comes down to having to pick one of the black jurors.”

The prosecution used its peremptory strikes against all four of the qualified prospective jurors who were black, and the defense claims the prosecution notes contradict the explanations the prosecution gave in court for its strikes of the black prospective jurors.

Opposing the cert petition, the state attorney general’s office pointed to a habeas judge’s finding that the prosecution thoroughly investigated every prospective juror, white or black. The habeas judge noted the prosecution’s investigator was black and testified that specifics on black prospective jurors in the notes likely came from things he knew from having lived in Rome all of his life. The state also noted that the prosecutors who tried the case said they did not make or instruct others to make the green highlighted marks.