Alfred Lewis Fennie was arrested in September 1991 the day after a Tampa woman had been kidnapped, raped, and shot in the back of the head. She was white, he was black, and the trial was held in the community of Brooksville, where only two years prior a 19-year-old white man had died in a racially motivated beating. Fennie was convicted of robbery with a firearm, armed kidnapping, and first-degree murder, with the jury unanimously recommending the death penalty.
Fennie was driving the victim’s car with another man, Michael Frazier, when both were arrested. Frazier was also convicted of the same three counts, but received a life sentence in exchange for his cooperation in Fennie’s prosecution. A decade after being convicted, Fennie had a new lawyer seeking a new sentence because the public defender who originally represented Fennie failed to ask jurors enough questions about race. Every motion, petition, and appeal filed by Fennie has been denied.
Even when race is not a central element in criminal cases, it can still be an important one that impacts the decisions of juries. Still, the criminal justice system must strive to ensure that all alleged offenders are given the opportunity for a fair trial.
On May 26, the United States Supreme Court agreed to hear an appeal this fall from Timothy Tyrone Foster, a Georgia man who was convicted of the strangulation of a 79-year-old schoolteacher. Here like in the Fennie case, the victim was white, the defendant was black, while the jury in this case was entirely composed of white jurors. Foster was convicted and sentenced to death in May 1987.
However, what makes Foster’s case unique is that his legal team uncovered shocking notes on documents through an open records request that shed light on the seemingly deliberate efforts of prosecutors to eliminate black prospective jurors from the jury pool. The petition in Timothy Tyrone Foster v. Carl Humphrey states that the notes reflect that prosecutors:
- marked the name of each black prospective juror in green highlighter on four different copies of the jury list
- circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors
- identified three black prospective jurors as “B#1,” “B#2,” and “B#3”
- ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors”
- created strike lists that contradict the “race-neutral” explanation provided by the prosecution for its strike of one of the black prospective jurors
The question posed by the petition is whether Georgia courts erred in failing to recognize race
discrimination under Batson v. Kentucky in “the extraordinary circumstances of this death penalty case”. Batson was a landmark 1986 U.S. Supreme Court that held peremptory challenges—the right of attorneys to reject a certain number of potential jurors during jury selection without stating a reason—cannot be used to strike prospective jurors solely because of their race. The majority opinion authored by Justice Lewis Powell stated that it is not unconstitutional “to strike one or more blacks from the jury,” but the burden shifts to the state to come forward with a neutral explanation for challenging black jurors if the circumstances concerning a prosecutor’s use of peremptory challenges creates a prima facie case.
Foster v. Humphrey seems to be a very clear case of racial discrimination in jury selection, and the Supreme Court’s ruling in this case may have a profound effect on how minorities accused of violent crimes in criminal cases in Georgia, Florida, and all around the nation are handled.