Floyd Superior Court Judge Billy Sparks has set a tentative date for the retrial of Timothy Tyrone Foster for the 1986 murder of Queen Madge White for the last week of January 2021.
The decision came Monday, at the start of a week set aside to hear motions on a myriad of issues that will ultimately be passed on to the Georgia Supreme Court for review before the retrial actually takes place.
One major issue, which will not be resolved until next summer, involves a potential challenge to the jury pool — which will not even be established until July 1, 2020. A hearing for that challenge to be argued has tentatively been set for the week of Aug. 17, 2020.
Foster’s conviction and death sentence was overturned by the U.S. Supreme Court in 2016. The sentence was thrown out based on evidence that the district attorney’s office in 1987 improperly excluded black jurors from the jury in Foster’s original trial.
As he looked at his potential calendar prior to setting a date for the retrial, Sparks agreed that issues could arise that might delay the case even further. But he said “this case takes precedence. We’ll set aside anything we need to set aside.”
The team of attorneys from the Georgia Capital Defenders Office who are now representing Foster are seeking to bar the possible imposition of the death penalty this time around. The first motion heard Monday focused on their argument that, while Foster was 18 in 1986 when the murder was committed, his intellectual disabilities meant he was not functioning as an adult at the time.
Assistant District Attorney Kevin Salmon argued that a civil jury ruled 20 years ago that Foster did not suffer from a mental disability that would prohibit the state from imposing the death sentence.
“It was fairly and properly heard under the standards of the time,” Salmon said.
The defense team — Christian Lamar, Shayla Galloway and Jerry Word — argue this is now an entirely new case and that intellectual disability is essentially the sole defense for Foster.
Sparks asked Salmon if what he was arguing didn’t fundamentally bar the defense during the new trial phase and said, “I don’t see it ... The jury that tries the case has to decide that.”
Capital cases in Georgia have two phases — the trial phase, where the jury determines guilt or innocence; and the sentencing phase, where the jury determines whether to sentence the defendant to death.
Sparks ruled on a number of pretrial motions. He ruled a recorded statement to police would not be able to be used at the trial while another statement, which was not recorded, could be used at trial. He cited previous rulings in the case.
Retired educator Willie Mae Samuel was the first witness for the defense team, which tried to illustrate that services for young blacks with disabilities were a by-product of a still racially charged atmosphere in the local schools even 15 to 20 years after integration.
While Samuel said she did not know or teach Foster, she categorized services available as poor at the time.
The defense team said Foster dropped out of school in the ninth grade in 1982 or 1983.
During the afternoon session Monday, the defense team brought several witnesses to the stand to lay a foundation for Foster’s intellectual disability defense.
Those testifying included a social worker who counseled Foster at a juvenile facility, who said Foster had trouble communicating and understanding. Also, an art teacher from East Rome High School said Foster couldn’t comprehend a simple ceramics project and described him as childish.
However, Salmon then produced an attachment to the juvenile justice social worker’s report from Dr. Richard Hark, who had examined Foster and labelled him “a true con artist.”
Former classmates of Foster remembered him being bullied and not fitting in with other students.
Jacqueline Harris, who attended Anna K. Davie Elementary School with Foster, said he was always being picked on by other children and when she attempted to befriend him it looked like he was staring right through her.