A Black Man Described by a Juror as an N-Word Is Scheduled to Get Executed Tonight

Eight years after the intellectually disabled Kenneth Fults was sentenced, a white juror showed his true self.

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13 April 2016, 12:00am

Condemned prisoner Kenneth Fults. (Georgia Department of Corrections via AP)

Kenneth Fults is set to be executed Tuesday night in a Georgia state prison for the 1996 murder of a 19-year-old white woman, Cathy Bounds. A 47-year-old black man with an intellectual disability, Fults pleaded guilty to shooting the woman five times in the head, and was sentenced to death by a jury roughly racially representative of the county where the crime took place. At this point, no one is disputing the man is responsible for the crime. But five of the 12 jurors from Fults's sentencing trial have spoken out about the punishment, in part because another juror has since revealed himself to be a flagrant racist.

In 2005, Thomas Buffington, a white juror who was in his late 60s at the time of sentencing in 1997, made a statement for the record in a signed affidavit.

"I don't know if he [Fults] ever killed anybody, but that nigger got just what should have happened," he said, adding, "Once he pled guilty, I knew I would vote for the death penalty because that's what that nigger deserved."

Despite the heinous nature of Buffington's statement, the US Supreme Court has never heard arguments on racial bias in the jury. (Fults's lawyers filed a fresh request for a direct hearing on Friday that's still pending.) So far, the man's various requests to appeal to the high court have been denied, as was his application for clemency on Monday.

The case brings to mind too many instances where racism—and an unrelenting denial to acknowledge its existence—has impeded justice in the state. Consider the Supreme Court case McCleskey v. Kemp, where a review of over 2,000 murder convictions in Georgia presented overwhelming evidence that black defendants who kill white victims are more likely to receive the death penalty in Georgia than others. The statistical study of 1970s cases found that prosecutors sought the death penalty in 70 percent of cases involving black defendants and white victims, but only 19 percent of cases involving white defendants and black victims.

When asked about these numbers and if they apply to Fults, Scott Ballard, the Spalding County district attorney who believes the execution should proceed, tells VICE, "You haven't demonstrated to me yet that that extra number of black people that got the death penalty didn't deserve it. You're just telling me that, after all has been said and considered, the race of the people who got the death penalty."

Ballard is careful to distance himself from Buffington's racism—"I'm offended by it"—but defends Georgia's application of the death penalty. "I'm not willing to say that Georgia executes people on the basis of racial prejudice," he says. "I'm just not willing to say that."

In 1987, the Supreme Court concluded in McCleskey that systematic discrimination is separate from individual cases of it. The court acknowledged "systematic and substantial disparities" in the punishments imposed and that the "factors of race of the victim and defendant were at work." Despite this, the justices found that the study did not prove that the officials involved in the conviction at hand "acted with discriminatory purpose."

In short, the intrinsic racial bias of a criminal justice system cannot be blamed for an outcome produced within that system. To do so, as then-New York Times columnist Anthony Lewis put it, "to confront the reality of racial influence on death sentences would risk disturbing the system too much."

Such risk aversion doesn't bode well for one's constitutional right to equal protection of the law.

Scott Ballard, the district attorney, makes a similar argument. He calls it "a big leap" to say that Buffington wasn't able to set aside his biases to deliver the verdict, "as all jurors have some form of bias."

Further, Ballard says Buffington's comments don't prove that Georgia is exercising racial prejudice in carrying out the execution. Instead, he argues, Buffington's remarks only prove that he used language "that offends."

Some might argue otherwise.

The same year that McCleskey came before the high court, Timothy Tyrone Foster was tried for the murder in Rome, Georgia and sentenced to death. Foster, a black man, now has a case before the US Supreme Court where justices are considering evidence of prosecutors systematically excluding prospective black jurors. Prosecutors argued to an all-white jury, and Foster's is another capital punishment case involving a white victim.

In clemency arguments made before the Georgia Board of Pardons and Paroles Monday, it was briefly addressed that Johnny Mostiler, who represented Fults in his sentencing trial, was also said to use the racial slur on multiple occasions.

"I don't think that was addressed except that [the Board] asked [a former colleague of Mostiler's] if [Mostiler] was a racist," Ballard tells me. "He said that, in his opinion, he certainly was not." The colleague, former District Attorney William McBroom, apparently "pointed out acts of kindness" he remembered Mostiler offering to people of color as a counterargument.

As far as other questions the Board had about racial matters? "They didn't seem to have too many," Ballard says.

Fults's clemency denial was made public less than five hours after arguments Monday. Georgia's next execution is scheduled for April 27, and will be the fifth this year.

Follow Camille Pendley on Twitter.

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