Attorneys for a man facing the death penalty for a 1986 killing brought a new witness to illustrate what they characterized as “prosecutorial misconduct” in the original case.

Prior to the original trial for Timothy Tyrone Foster in 1987, a man who was then an assistant district attorney for Floyd County testified he heard the district attorney at that time and his lead investigator arguing about the case.

As he walked up the steps Harold Chambers, who is now a sitting judge, testified he heard then District Attorney Steve Lanier arguing with his chief investigator Clayton Lundy.

“Mr. Lundy told Lanier they had to put a black person on the jury,” Chambers said. “Lanier kept saying ‘no, I’m not going to do it.’”

Chambers said Lundy then told Lanier “If you don’t put a black juror on this jury this is going to come back to haunt you.” As he approached they quit talking and Chambers said he didn’t mention it to anyone at that time or for years afterward.

Lanier served three terms as DA from 1985 through 1996. He passed away in July 2018.

Assistant District Attorney Kevin Salmon asked Chambers why it took him over 30 years to bring up the incident. Chambers replied he did not think it would do any good at the time, but when he noticed an email about the case he contacted the Southern Center for Human Rights.

The process of excluding jurors because of race, sex or ethnicity is a common practice, Chambers said.

“It went on then and it still goes on Mr. Salmon,” Chambers said.

Foster was tried and sentenced to death in 1987 for the murder of retired school teacher Queen Madge White during a burglary at her home at Highland Circle — he was 18 at the time of the incident.

The U.S. Supreme Court overturned Foster’s conviction two years ago, on the grounds that black jurors being were excluded from his original trial. Just prior to the case being tried in 1987 the high court ruled in Batson v. Kentucky that prosecutors could not strike potential jurors on the basis of race, ethnicity or sex.

Word described the process of appellate review leading up to the Foster’s case being heard by the U.S. Supreme Court a series of “subterfuge” and “misrepresentations” by previous district attorney Lanier.

“The prosecutor hid this Batson violation for 30 years,” Word said.

This type on interference in a case “smacks of prosecutorial misconduct,” Jerry Word of the Capital Defender’s office said, and asked the judge to dismiss the case or rule out the death penalty as a sentencing option.

Salmon cited a number of cases with Batson violations that resulted in a retrial, none had been dismissed as a result. He also followed up saying there is a difference between prosecutorial misconduct and “attempting to pick a jury you believe will find what you think is just.”

Once his conviction was overturned, Foster was moved back to the Floyd County Jail from Georgia’s death row in Jackson. In 2018 the state expressed its intent to seek the death penalty and the process began again.

Some of Monday’s hearing concerned issues with trying a case that is at this point over 30 years old.

The lead investigator in the original case now suffers from significant physical issues as well as memory loss and prosecutors motioned to allow his original testimony. Foster’s attorneys did not object to allowing the testimony from the prior trial to be used but asked to have the right to object to evidence presented or statements made from that testimony.

Some of the evidence presented in that testimony included two statements by Foster after his arrest.

One of those statements was recorded while the other was not. Salmon told the court police at the time said the first was not recorded because they didn’t want to interrupt Foster to begin recording or setting up recording equipment during his statement.

Foster’s attorneys said those two statements to police were the crux of the state’s case. They also said they wished to introduce the statements of several people who are now deceased but did not testify at his previous trial. Word said they had statements from Foster’s mother, father, sister as well as a neighbor and one of Foster’s cousins they wished to have admitted into evidence.

Another issue resulting from the age of the case was many of the original case files were damaged, although copies of those files were preserved and available because of review by the U.S. Supreme Court.

Judge Sparks set a date of Dec. 2 to hear all remaining pre-trial motions in the case. After that point it will be sent to the Georgia Supreme Court for review.

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