A Floyd County judge on Monday will hear what is likely to be the last round of hearings before a death penalty case from a 1986 killing moves to the next step toward a trial.

Trying the now 33-year-old case against Timothy Tyrone Foster will present some difficulties.

One of the many issues resulting from the age of the case is 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 has numerous motions and responses to consider. Attorneys from the Georgia Public Defender Council representing Foster have filed more than 100 motions in the case, and the Floyd County District Attorney’s office filed responses to those motions.

The motions run a gamut of subjects concerning the upcoming trial. For instance, Foster’s attorneys have challenged the make up of the grand jury as well as sought to bar the death penalty on the basis that it is “cruel and unjust.”

In a May hearing before Floyd County Superior Court Judge Billy Sparks, prosecutors stated the lead investigator would not be able to testify because of significant physical issues including memory loss. Foster’s attorneys didn’t object to allowing testimony from the prior trial, but asked to have the right to object to evidence or statements made from that testimony.

Some of the evidence presented in that testimony included two statements by Foster after his arrest — one recorded, one not. Foster’s attorneys said those two statements to police were the crux of the state’s case.

His attorneys also seek to introduce the statements of several people who are now deceased but did not testify at his previous trial. There are 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.

Several rounds of hearings have already taken place, the most recent of which was the May 2019 hearing. This isn’t unusual in any case involving the death penalty. The process, called the Unified Appeal, is essentially a checklist designed to protect a defendant’s rights in capital cases.

Once completed, the case will be sent to the Georgia Supreme Court for review before going to trial again.

Foster, who is now 51, was originally 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 79-year-old woman had been brutally attacked and molested before being strangled to death.

The U.S. Supreme Court overturned Foster’s conviction two years ago. The high court ruled there was enough evidence to show the district attorney at that time had systematically excluded black jurors. 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.

Foster was brought to Floyd County Jail in March 2017 from Georgia’s death row in Jackson. In 2018 the state expressed its intent to seek the death penalty and the lengthy process began again.

At this point there is only one person on death row from Floyd County.

James Randall Rogers, now in his 50s, raped and murdered his 75-year-old neighbor Grace Perry in 1980. While he’s been sentenced to death for 39 years, there has been no scheduled date for his execution published.

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