On Foster v. Chatman, and habeas federalism

Today the Supreme Court reversed the conviction and death sentence of Timothy Foster, finding that the Georgia Supreme Court had erroneously found no evidence of discriminatory intent on the part of state prosecutors in excluding black prospective jurors during jury selection.  The opinion by The Chief Justice in Foster v. Chatman is here.

Obviously, the legal issue in this case involved race.  And the facts about the use of race that came to light here were not helpful to the State (they were troubling, to say the very least).  But I would suggest two aspects of the Foster saga to bear in mind, and that go beyond the narrow issue of race and the death penalty.

First, the case intersects with federalism and the limited power of federal courts to interfere with judgments in state criminal cases.  As Justice Thomas’s dissent argued, the adequate and independent state grounds doctrine may have barred federal court review because the state court decision was most likely based not on the merits of a question that involved a matter of federal constitutional law, but, rather, on Foster’s procedural default of his claim in state court.  This default would have occurred, according to Justice Thomas, by operation of Georgia state law, which forbids raising an issue on state habeas that had already been rejected in the state courts.  Justice Thomas therefore thought that the Court should have sought clarification from the Georgia Supreme Court as to whether its final order was a disposition based on the procedural default or on the merits of the issue.  Though the Chief’s opinion addresses the adequate and independent state grounds concern, it is not an unreasonable concern, especially in light of the summary way that many state courts dispose of petitions for collateral review.

Justice Alito, though he concurred as to both jurisdiction and the merits of the Batson claim, shared Justice Thomas’s concern about what the potential default could do to this case going forward.  In Alito’s view, the case should be remanded for the state courts to reconsider the state law ground, without any “misapprehension” about what federal law requires, now that the Court has resolved that matter.  It is unclear, then, whether Georgia will even have to retry Foster, or whether the state courts could simply reaffirm his conviction and sentence on the ground that he defaulted the claim as a matter of state law – a curious result given that the Supreme Court just said that the claim had merit.  In other words, although the Court said today that the lower court decision is “reversed,” the idea is that it is reversed only as to the federal constitutional aspects of the Batson issue; there remains a state law ground for disposing of that issue.  (Lyle Denniston has further analysis on this issue here at SCOTUSBlog, as does Kent Scheidegger here at C&C).

Second, it is important to remember the crime for which Foster was convicted and sentenced to death.  As described by the state court that rejected his initial appeal, see Foster v. State, 374 S.E.2d 188 (Ga. 1988), as well as the opinions today, Foster sexually molested a 79-year-old widow with a salad dressing bottle, and strangled her to death.  This was sometime after the victim, Queen Madge White, had returned from choir practice.  When her sister found her, White had a broken jaw (inflicted with a fireplace log) and a severe gash on her head; her face was covered in talcum powder; and possessions were missing from her house.  Those possessions were later found in Foster’s home, and the home of his two sisters.  He was arrested after police responded to a call by his girlfriend on an unrelated matter.  She told them that Foster had confessed the murder to her and had distributed the stolen items to her and Foster’s family.  When interrogated by police, Foster confessed to the crime.  He was not charged with rape or sexual assault, but admitted to inserting the bottle into the victim’s vagina.

These facts were not relevant to the precise legal question that the Court resolved today.  But, if Foster is retried, they would be relevant to state prosecutors in planning for Foster’s retrial, and they will be relevant to the new jury that would determine his guilt and, possibly, punishment.  If he is not retried, but his conviction and sentence are affirmed on state law grounds, then these facts will be relevant to Georgia’s decision to pursue his execution.

It is tempting to view this case solely through the lens of race and its troubled history in connection with the use of the death penalty, especially in the South; unfortunately, the equal protection issue that Foster raised implicated the prosecution’s use of race during jury selection.  Still, a wider lens would account for the brutal crime to which Foster admitted, and for which he was convicted.  The nature of the crime is a far better indicator of whether the death penalty will be imposed than is race.  And this was a crime for which the death penalty was appropriate under state law; that remains true regardless of Foster’s race or the race of Queen Madge White.  If he is retried – and whether that can even happen is now in some doubt, in light of the Alito and Thomas opinions – he may not face or receive the death penalty.  But regardless of the eventual outcome, I hope that the judgments of the decision-makers in Georgia are based on the strength of the State’s evidence about this crime, its brutality, and the requirements of state law, and not on the race of the perpetrator, his victim, or of any prospective juror.




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