Frivolity & The Death Penalty

By Paula Mitchell
Nov 9, 2015

On Friday, October 30, 2015, a broad coalition of prosecutors gathered together at a press conference in Los Angeles to announce the launching of a campaign for a new law that will speed up executions of death row inmates in California. They are tired, they say, of death row inmates filing “frivolous appeals.” These frivolous appeals are to blame, they say, for the state having to wait 20 to 25 years before it can execute those it sentences to death. This new law would, they say, cut that time in half or less.

As the prosecutors’ statements from Friday’s press conference were still reverberating through the airwaves, our attention was turned on Monday, November 2, 2015, to a Supreme Court case involving Timothy Foster, who has been on Georgia’s death row for 28 years. Foster is an African-American man who was convicted and sentenced to death by an all-white jury for a murder he was charged with committing when he was eighteen years old.

Twenty-eight years is a long time to spend on death row. Why has Foster’s case dragged on for so long? Is it because he has spent all of these years filing “frivolous appeals,” as California’s prosecutors contend? The answer is a resounding, “No, it is not.” The justices’ questions and comments at Monday’s oral argument made clear that Foster’s case is anything but frivolous. He has simply been asking state and federal courts to recognize that he has a constitutional right to a fair trial by a jury of his peers. Because our system prizes finality over fairness, however, it typically does take decades for those convicted of capital and other serious offenses to bring their constitutional claims before the court. And because our system is adversarial, prosecutors in these cases typically do everything within their power to forestall or prevent discovery in post-conviction investigations, which is often what is needed during the appeals process to ensure that everyone has been playing by the rules.

Foster’s case provides us with a pitch perfect explanation as to why death penalty appeals can take so many years to complete. In 1986, Timothy Foster was charged with murdering an elderly white woman. At his trial, there were no blacks on the jury because prosecutors used their peremptory strikes to remove all of the qualified black jurors. The defense objected to the prosecution’s attempt to strike those jurors because under Batson v. Kentucky, 476 U.S. 79 (1986), peremptory strikes cannot be used to strike jurors on the basis of race. Under Batson, the burden then shifted to the prosecution to show that there were race-neutral explanations for striking all of the qualified black jurors. The prosecution in Foster’s case provided reasons, which the trial court concluded were sufficient. He was tried by an all-white jury, which found him guilty and sentenced him to death.

A violation of Batson is considered so serious that it results in a mandatory reversal of a criminal conviction and sentence. Foster filed a post-judgment motion for discovery seeking access to the prosecution’s jury selection notes and files. He believed that he did not receive a fair trial because the prosecution’s excuses for striking the black jurors were not convincing and therefore its jury selection tactics violated Batson. He argued that because the prosecution used its notes to justify the exclusion of all black jurors in his case, the notes should be available to the courts examining his Batson claim. The trial court denied his motion for discovery.

Foster filed a motion for a new trial on the same ground and this time the prosecutor opposed his motion by adding even more justifications for striking all of the prospective black jurors than he had asserted at the Batson hearing. The prosecutor stated that he wanted to take the stand to provide further explanation of his reasons for the strikes, which presumably only occurred to him after the Batson hearing, but that he wanted assurances from the court that defense counsel would not be given access to his file. The trial court assured him that the defense would not gain access to his file and the prosecutor provided expanded testimony regarding his reasons for striking all of the black jurors. The trial court issued a written order denying the motion for new trial and stating that the prosecution did not violate Batson. The Georgia Supreme Court affirmed the trial court’s decisions on the motion for discovery and the motion for a new trial. The Supreme Court denied certiorari.

Foster appealed his conviction and death sentence to the Georgia Supreme Court. He argued on appeal that the trial court erred in overruling his Batson objection and denying his motion for discovery of the prosecution’s notes from jury selection. The Georgia Supreme Court held that that the trial court did not err in finding that the strikes were “sufficiently neutral and legitimate,” and that Foster was not entitled to the prosecution’s notes.

In 1989, Foster filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia. Because the prosecution refused to produce its notes to Foster, his counsel filed a request for the materials pursuant to the Georgia Open Records Act. Finally, in 2006, Foster’s habeas counsel obtained the prosecution’s jury selection notes from his 1987 capital trial pursuant to the Open Records Act request.

Based on the newly acquired evidence, contents of the prosecution’s files, Fosterpetitioned for a writ of habeas corpus in Butts County Superior Court and submitted a new Batson challenge. The prosecutor’s jury selection notes showed that all of the qualified black jurors on the jury list were clearly marked with the letter “B” and their names were marked with a green highlighter pen, which the notes indicated meant the juror was black. The black jurors were also placed on a list of “definite No’s.” The superior court again denied Foster’s petition. The Georgia Supreme Court again affirmed the denial of the writ. The United States Supreme Court granted certiorari in January 2015.

The evidence that the prosecution struck all of the black jurors for reasons of race is apparent from even a cursory glance at the prosecution’s notes. Indeed, Justice Elena Kagan asked counsel for the state of Georgia: “Isn’t this as clear a Batson violation as a court is ever going to see?”

The prosecutor's notes on at Foster's trial.

The strength of the parties’ arguments in Foster and the Court’s questions at oral argument have been covered extensively in the media by numerous other commentators. There is a clear consensus that a majority of the Court seems to believe a Batson violation occurred at Foster’s trial.

The point to be made here is a different one: the fact that Timothy Foster has spent twenty-eight years in the appeals process is directly attributable to the prosecution’s refusal to produce their notes. It is not because he has been filing frivolous appeals. If the state had nothing to hide, they could have produced their notes decades ago and shown that our system prizes both finality and fairness. Instead, prosecutors refused to produce their notes and forced Foster to spend nearly thirty years trying to demonstrate that he had a legitimate claim that he was denied his right to a fair trial.

The facts in Foster’s case are not unusual. It is the very nature of our adversarial system for both sides to dig in, hunker down, barricade the doors and hold tight to any ground that has been gained, even if it is a conviction that was obtained through a constitutionally defective proceeding. This approach to the state protecting its “win” or its “conviction” at any cost plays out not only in death penalty cases. As the Legal Director for the Loyola Project for the Innocent, I have seen many, many inmates who have been convicted of serious crimes and sentenced to very lengthy terms—and who have steadfastly maintained their innocence from the beginning—spend twenty or more years trying to get access to police investigation files or prosecutors’ files, so they can try to explain and prove what went wrong at their trial and prove their innocence. But our system places so much importance on the “finality” of a conviction that once a conviction and sentence have been affirmed, the door slams shut and any further investigation into potential constitutional defects, including fairness of a trial proceeding—or even actual innocence claims—becomes extremely difficult. For those who are not represented by counsel, such investigations are virtually impossible.

What the Foster case illustrates so well is why the process can and often does take so long. The inconvenient truth—to the prosecutors in California and others who are seeking to speed up the appellate process in death penalty cases—is that these cases take a very long time to review by design and they take even longer when the state refuses to open its files and show that it has been playing by the rules.