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    Timothy Tyrone Foster - Georgia




    Facts of the Crime:

    Was sentenced to death in Floyd County in May 1987. Mr. Foster confessed that on the night of August 27, 1986, he broke into the home of Queen Madge White, 79. Her jaw was broken, she had gashes on the top of her head and she had been sexually assaulted and strangled. Mr. Foster had a juvenile record including armed robbery.

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    FOSTER v. THE STATE.
    S99A1800.
    (272 Ga. 69)
    (525 SE2d 78)
    (2000)

    HUNSTEIN, Justice.

    Murder. Floyd Superior Court. Before Judge Matthews.

    Timothy Tyrone Foster was convicted and sentenced to death by a jury in Floyd County in 1987. His conviction and sentence were upheld on appeal. Foster v. State, 258 Ga. 736 (374 SE2d 188) (1988). Subsequently, this Court addressed Foster's claim seeking a writ of habeas corpus on the basis that he was mentally retarded. Zant v. Foster, 261 Ga. 450 (406 SE2d 74) (1991). Pursuant to our remand of the case, the trial court conducted a trial on the mental retardation issue. A jury determined that Foster was not mentally retarded and he filed this appeal. Finding no reversible error in the enumerations he asserts, we affirm.

    1. Based on our prior ruling in his case, Foster had the burden of proving his mental retardation by a preponderance of the evidence. Id. at (5). See also Stephens v. State, 270 Ga. 354 (2) (509 SE2d 605) (1998). Evidence was adduced from which the jury could have found that IQ tests administered to Foster when he was ten and nearly seventeen years old showed that he was not mentally retarded; that Foster's subsequently lower IQ scores resulted from depression or malingering; that Foster's school grades and class assignments did not reflect any sign of mental retardation; and that Foster's interaction with others, his letter writing, newspaper reading, and sports activities all indicated that Foster did not meet the statutory definition of mental retardation. OCGA 17-7-131 (a) (3). Construing the evidence in favor of the verdict, a rational trier of fact could have found that Foster failed to prove by a preponderance of the evidence that he was mentally retarded. Accordingly, the trial court did not err by denying Foster's motion for a new trial on the basis that the verdict was contrary to the evidence.

    2. We find no error in the trial court's denial of Foster's motion for a change of venue in the mental retardation trial. Even applying the standard for change of venue in death penalty cases, see, e.g., Cromartie v. State, 270 Ga. 780 (2) (514 SE2d 205) (1999), a review of the record establishes that Foster made no substantive showing of an inherently prejudicial trial setting or actual bias on the part of individual jurors. Id.

    3. Foster contends the trial court erred by introducing into the proceeding the fact that a crime had been committed when the trial court instructed the jury, inter alia, that Foster had been charged with a crime and that the jurors had not been selected to decide his guilt or innocence. In State v. Patillo, 262 Ga. 259 (417 SE2d 139) (1992), we upheld the trial court's ruling that the consequences of the jury's finding on the mental retardation issue should not be disclosed to the jury. Our holding paralleled the exclusion of sentencing issues in trials conducted pursuant to OCGA 17-7-131 (j), under which claims of mental retardation are decided "at the guilt phase of the [criminal] trial." Patillo, supra. The challenged instructions here, which alerted the jury to the fact that the mental retardation issue in Foster's case arose out of a criminal proceeding, did not in any manner impede the jury from "focus[ing] strictly on the mental condition of the defendant and decid[ing] that issue without being concerned about the consequences of its finding." Patillo, supra at 260. Accordingly, we find no error in the challenged instructions.

    4. The record reveals that each panel of prospective jurors was required to complete a questionnaire and that the completed forms were then copied and provided to counsel prior to voir dire. Our review of the record fails to disclose any abuse of the trial court's discretion in regard to the amount of time counsel was provided to review the questionnaires. See generally Speed v. State, 270 Ga. 688 (7) (512 SE2d 896) (1999) (control of voir dire lies within discretion of trial court).

    5. The trial court overruled Foster's objection under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) after concluding that the State set forth racially neutral reasons for striking three prospective African-American jurors. 1 Foster contends that the striking of prospective juror Shropshire on the basis of his extensive medical knowledge was improper because the State failed to strike a similarly-situated white juror who was a medical nurse. However, the prosecutor also noted that juror Shropshire's wife was a psychologist who worked in the field of mental retardation, the juror had worked with her in the past regarding her patients, and additionally that the juror had a relative who was mentally retarded. The transcript thus reflects that Foster, as the opponent of the strike, failed to carry his burden of persuasion by showing that the strike was pretextual. Compare Jones v. State, 270 Ga. 25 (2) (505 SE2d 749) (1998).

    6. Dr. Anthony Stringer, a psychologist called by Foster, testified on direct examination regarding his diagnosis of Foster's father as mentally retarded and the studies which indicated the greater likelihood of mental retardation in the offspring of retarded parents. On cross-examination, objection was made when the prosecutor questioned Dr. Stringer about anti-social personality disorder 2 on the basis that it was not relevant to the witness' direct testimony. Although the prosecutor stated that she intended to establish the relevancy by testimony that anti-social personality disorder, like mental retardation, can be inherited from a parent, that connection was not made. Foster now contends reversible error resulted. However, Dr. Stringer's testimony regarding anti-social personality disorder was cumulative of relevant testimony by other expert witnesses who discussed the disorder in regard to Foster himself and thus the error, if any, was harmless. See Williams v. State, 256 Ga. 655 (2) (352 SE2d 756) (1987); see also Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

    7. Foster called Dr. Robert Shaffer to testify regarding the results of intelligence testing he performed on Foster. Foster contends reversible error occurred when Dr. Shaffer on cross-examination was twice asked to give his opinion based upon the opinion of another health professional. In the first instance, the prosecution questioned Dr. Shaffer about the observation by Dr. Perri, who had administered an earlier IQ test to Foster, that Foster seemed depressed at the time he took the test. The second instance involved the diagnosis of Foster as having anti-social personality disorder. Contrary to Foster's contention, the transcript reveals that the prosecution did not ask Dr. Shaffer to offer an opinion about another's opinion, but only inquired about depression and the diagnosis of anti-social personality disorder to obtain Dr. Shaffer's analysis of the impact these matters might have on the results of Foster's IQ tests. The trial court allowed this questioning as relevant to the jury's determination of Foster's mental retardation and we find no abuse of the court's discretion. See generally Baker v. State, 246 Ga. 317 (3) (271 SE2d 360) (1980).

    8. The transcript does not support Foster's claim that the trial court either improperly restricted the answer of a witness or expressed an opinion in violation of OCGA 9-10-7.

    9. Because we found no error in the jury being informed that their consideration of the mental retardation issue arose in the context of criminal proceedings brought against Foster, see Division 3, supra, the trial court did not err by admitting testimony by State's witness, Dr. Perri, that Foster's depression during the admission of an IQ test may have stemmed in part from his incarceration at that time. Likewise, no error resulted merely because Foster's incarceration was indicated by the fact that correctional officers, called to testify regarding Foster's behavior while incarcerated, wore their uniforms in court.

    http://72.30.186.176/search/srpcache...ggDrsMpfGb7Q--

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    In today's orders, the United States Supreme Court GRANTED Foster's petition for certiorari.

    Lower Ct: Superior Court of Georgia, Butts County
    Case Nos.: (1989-V-2275)
    Decision Date: December 9, 2013
    Discretionary Court
    Decision Date: November 3, 2014

    http://www.supremecourt.gov/search.a...es/14-8349.htm

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    Supreme Court will hear appeal from Georgia death row inmate over exclusion of black jurors

    WASHINGTON (AP) — The Supreme Court will consider whether prosecutors improperly singled out potential black jurors in notes and then excluded them all from the death penalty trial of a black Georgia man accused of murder.

    The justices agreed Tuesday to hear the appeal of Timothy Foster, who was sentenced to death in 1987 after being convicted of murdering a 79-year-old white woman in Rome, Georgia.

    Lawyers for Foster say prosecutors' notes obtained through an open records request show that the name of each potential black juror was highlighted and the word "black" was circled next to the race question on questionnaires for the black prospective jurors.

    Georgia officials say prosecutors had race-neutral reasons for striking the potential jurors.

    http://www.startribune.com/high-cour...ors/305030421/

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    On August 12, 2015, Foster filed a habeas petition in Federal District Court.

    https://dockets.justia.com/docket/ge...cv00148/219019

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    Georgia death row inmate’s case reaches Supreme Court

    WASHINGTON - A Georgia death-row inmate convicted of murder when he was a teenager is about to get a potentially life-saving chance to challenge how his jury was formed.

    Timothy Tyrone Foster is African-American. The 12 Floyd County jurors who convicted him in 1987 were all white. On Monday, the Supreme Court will weigh whether prosecutors unfairly used race to tilt the jury selection.

    The court’s ultimate decision may reach well beyond Foster, one of 85 Georgia inmates on death row. It could also shape how attorneys choose jurors, while giving a sharply divided court another chance to debate capital punishment.

    “It’s going to be decided on the backdrop of the whole new disagreement at the court on the death penalty . . . and whether or not the death penalty has this inherent problem of racial discrimination, both in terms of who’s charged and how they’re tried,” noted attorney Paul Smith, a frequent Supreme Court advocate.

    Underscoring the broader stakes, Foster will be represented at the hour-long oral argument Monday by noted attorney Stephen B. Bright, president of the Atlanta-based Southern Center for Human Rights and a longtime instructor at Yale Law School.

    Foster’s other high-profile allies range from former California Attorney General John Van de Kamp, who filed a brief supporting the inmate, to novelist and former prosecutor Scott Turow.

    “It’s very important for the criminal justice system, because it really exposes a lot of the cultural problems we’re facing today,” Rory Little, a professor at the University of California Hastings College of the Law, said Friday.

    “It could lead to an end to race-based strikes of jurors.”

    Georgia’s deputy attorney general, Beth A. Burton, will be defending how the trial prosecutors weeded out unwanted jurors.

    “The prosecution offered numerous race-neutral reasons for the peremptory strikes of the four black prospective jurors,” the Georgia brief asserted, adding that there was no “purposeful discrimination.”

    The case called Foster v. Chatman centers on what Bright called, in one legal brief, certain “extraordinary circumstances.”

    Foster was 18 years old in 1986, living in Rome, Ga. His IQ test scores, according to defense attorneys, put him “in the borderline range for intellectual disability.” One night that August, while intoxicated on a mix of alcohol, marijuana and cocaine, he broke into the home of a 79-year-old retired elementary schoolteacher named Queen Madge White.

    “He broke her jaw, coated her face with talcum powder, sexually molested her with a salad dressing bottle, and strangled her to death, all before taking items from her home,” the Georgia brief states, deploying the kind of graphic detail often used by states defending a death sentence.

    Ninety-five potential jurors were initially called for Foster’s trial. Ten were African-American. Defense attorneys and prosecutors each could eliminate potential jurors for “cause,” such as a known bias.

    Each also had a limited number of “peremptory” challenges, for which no reason had to be initially given.

    The Supreme Court, in an earlier decision involving a Kentucky burglary case, has prohibited using peremptory challenges to eliminate jurors on the basis of race. Proving a racial motive, though, can be tricky, as attorneys conjure other explanations for a peremptory challenge.

    Eventually, the jury pool in Foster’s case was narrowed to include four African-American. Prosecutors used peremptory challenges to eliminate them all.

    After Foster’s conviction, the district attorney asked for the death penalty, telling jurors it would “deter other people out there in the projects.” Nineteen years later, in 2006, Foster’s attorneys obtained the prosecutors’ notes about jury selection.

    The names of the four African-American potential jurors were marked with the letter “B” and highlighted in green. An accompanying key explained that green highlighting “represents blacks.” Their race was also circled on the juror questionnaire.

    “The exclusion of these citizens was not the product of ‘happenstance,’ but the result of the prosecution’s identification of them as black and its determination to keep them off the jury,” Foster’s attorneys wrote.

    Prosecutors say otherwise; noting, for instance, that one potential juror had a son who had been prosecuted for theft, and another seemed to offer misleading answers to questions.

    “An accurate assessment of this new evidence does not establish that the prosecutors were motivated by race to strike prospective jurors,” Georgia’s brief states.

    http://www.mcclatchydc.com/news/crim...e41958414.html

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    Justices review DA's choice of all-white murder trial jury

    By Mark Sherman and Kate Brumback
    The Associated Press

    WASHINGTON — Prosecutor Stephen Lanier's meaning was unmistakable when he urged jurors in north Georgia to sentence the defendant to death in part to deter other people "out there in the projects."

    Almost everyone in the public housing apartments near the scene of the killing of a 79-year-old woman in Rome, Georgia, was black, as was defendant Timothy Tyrone Foster. And after Lanier got through picking a jury of Foster's peers, all the jurors were white. So was the victim.

    Foster has been on death row for nearly 30 years, but his case still is making its way through the courts. The actions of Lanier and his staff will be in front of the Supreme Court on Monday, when the justices will consider whether the exclusion of all the black prospective jurors is a form of racial discrimination in violation of Foster's constitutional rights under a test the high court laid out in 1986.

    Georgia courts have consistently rejected Foster's claims of discrimination, even after his lawyers obtained the prosecution's notes that revealed prosecutors' focus on the black people in the jury pool. In one example, a handwritten note headed "Definite No's" listed six people, of whom five were the remaining black prospective jurors.

    The case arrives at the court a few months after Justices Stephen Breyer and Ruth Bader Ginsburg said the court should consider declaring the death penalty unconstitutional. Foster's case highlights several issues in the wider debate over capital punishment, including questions about his mental capabilities and the length of time he has lived under a death sentence.

    The only issue before the justices on Monday deals with the way this particular jury was put together. Lanier, who did not respond to requests for an interview, has consistently denied any intent to discriminate, and the state argues in defending his actions that prosecutors actually wanted a black juror to avoid defense accusations that the jury was a "white lynch mob."

    But Stephen Bright, a veteran death penalty lawyer who is representing Foster at the Supreme Court, said evidence of a racial motive is extensive and undeniable.

    As senseless killings go, Queen Madge White's death was as brutal and pointless as they get.

    White had the misfortune to use her bathroom in the middle of the night. Only when she returned to her bedroom and turned on the lamp beside her bed did she notice Foster in her living room, according to Foster's confession to police. Foster said he was just out to rob White's home, but things got out of hand when she grabbed a knife and chased him around a living room chair.

    He picked up a fireplace log and hit White hard enough to break her jaw. Then he sexually molested her with a salad-dressing bottle and strangled her to death.

    Foster's trial lawyers did not so much contest his guilt as try to explain it as a product of a troubled childhood, drug abuse and mental illness. They also raised their objections about the exclusion of African-Americans from the jury. On that point, the judge accepted Lanier's explanations that factors other than race drove his decisions. The jury convicted Foster and sentenced him to death.

    The jury issue was revived 19 years later, in 2006, when the state turned over the prosecution's notes in response to a request under Georgia's Open Records Act.

    The name of each potential black juror was highlighted on four different copies of the jury list and the word "black" was circled next to the race question on questionnaires for the black prospective jurors. Three of the prospective black jurors were identified in notes as "B#1," ''B#2," and "B#3."

    An investigator working for the prosecutors also ranked the black prospective jurors against each other in case "it comes down to having to pick one of the black jurors."

    Still, Georgia courts were not persuaded.

    Eddie Hood was "B#1" in the prosecutors' notes. Now 75, Hood said he hasn't spent much time thinking about that case, although he said he told his wife he had an inkling race played a role in his dismissal.

    He said Lanier had no reason to fear he'd go soft on Foster. "I had no problem with the death penalty," Hood said at his home in Rome.

    But he said he was bothered by Lanier's comment about the projects when a reporter related it to him. "If I had heard that, it would have created some thoughts I wouldn't have been comfortable with," he said.

    The Supreme Court tried to stamp out discrimination in the composition of juries in Batson v. Kentucky in 1986. In that case, the court ruled that jurors could not be excused from service because of their race and set up a system by which trial judges could evaluate claims of discrimination and the race-neutral explanations by prosecutors. Foster's conviction came just a year after the court handed down that decision.

    Yet despite the decision, "race discrimination persists in jury selection," said a group of former prosecutors that includes author Scott Turow and former Deputy Attorney General Larry Thompson, who served in the George W. Bush administration.

    "If this court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless," the ex-prosecutors wrote in support of Foster.

    In the course of selecting a jury, lawyers question potential jurors and first try to weed out people for specific reasons including the inability to impose a death sentence in a capital case or personal relationships with people involved in the case.

    Both sides also can excuse a juror merely because of a suspicion that a particular person would vote against their client. Those are called peremptory strikes, and they have been the focus of the complaints about discrimination.

    Justice Thurgood Marshall warned in the Batson case that the court's decision, which he supported, would not cure the problem.

    "The decision today will not end the racial discrimination that peremptories inject into the jury selection process. That goal can be accomplished only by eliminating peremptory challenges entirely," Marshall wrote.

    Among the current justices, only Breyer has echoed Marshall's concerns that discrimination is too hard to prove and allegations of bias are too easy to evade.

    Marshall was right, Bright said, "but the fact of the matter is there are not the votes for it on the Supreme Court."

    Instead, Bright suggested restricting each side to three such strikes would allow lawyers to get rid of a very limited number of potential jurors they view as problematic, but prevent a prosecutor from engaging in the sort of strategy Lanier used against Foster.

    The case is Foster v. Chatman, 14-8349.

    http://bigstory.ap.org/urn:publicid:...ff68a3703b239d
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    - Rev. Richard Hawke

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    Supreme Court troubled by DA's rejection of black jurors

    By Mark Sherman
    The Associated Press

    WASHINGTON — The Supreme Court appeared troubled Monday by the actions of a Georgia prosecutor in disqualifying all the black prospective jurors from the death penalty trial of a black teenager who was accused of killing an elderly white woman.

    At least six of the nine justices indicated during arguments that black people were improperly singled out and kept off the jury that eventually sentenced defendant Timothy Tyrone Foster to death in 1987.

    Justice Elena Kagan said Foster's case seemed as clear a violation "as a court is ever going to see" of rules the Supreme Court laid out in 1986 to prevent racial discrimination in the selection of juries.

    Foster could win a new trial if the Supreme Court rules his way. The discussion Monday also suggested that a technical issue might prevent the justices from deciding the substance of Foster's case.

    Georgia Deputy Attorney General Beth Burton had little support on the court for the proposition that prosecutor Stephen Lanier advanced plausible "race-neutral" reasons that resulted in an all-white jury for Foster's trial. Foster was convicted of killing 79-year-old Queen Madge White in her home in Rome, Georgia.

    Several justices noted that Lanier's reasons for excusing people from the jury changed over time, including the arrest of the cousin of one black juror. The record in the case indicates that Lanier learned of the arrest only after the jury had been seated.

    "That seems an out and out false statement," Justice Ruth Bader Ginsburg said.

    Justice Samuel Alito, who typically sides with prosecutors in criminal cases, was bothered by Lanier's explanation that the same juror also was not chosen because she was close in age to Foster. "She was in her 30s. He was 18 or 19," Alito dryly said.

    Georgia courts have consistently rejected Foster's claims of discrimination, even after his lawyers obtained the prosecution's notes that revealed prosecutors' focus on the black people in the jury pool. In one example, a handwritten note headed "Definite No's" listed six people, of whom five were the remaining black prospective jurors.

    The sixth person on the list was a white woman who made clear she would never impose the death penalty, Foster's lawyer, Stephen Bright said Monday. "Even she ranked behind the black jurors," Bright said.

    Burton tried to persuade the justices that the notes focused on black people in the jury pool because prosecutors were preparing to defend against claims that they were improperly trying to avoid having black jurors. Burton said the Supreme Court's ruling about race discrimination in jury selection was about a year old when Foster's case went to trial. The 1986 decision set up a system by which trial judges could evaluate claims of discrimination and the race-neutral explanations by prosecutors.

    Foster's trial lawyers did not so much contest his guilt as try to explain it as a product of a troubled childhood, drug abuse and mental illness. They also raised their objections about the exclusion of African-Americans from the jury. On that point, the judge accepted Lanier's explanations that factors other than race drove his decisions. The jury convicted Foster and sentenced him to death.

    The jury issue was revived 19 years later, in 2006, when the state turned over the prosecution's notes in response to a request under Georgia's Open Records Act.

    The name of each potential black juror was highlighted on four different copies of the jury list and the word "black" was circled next to the race question on questionnaires for the black prospective jurors. Three of the prospective black jurors were identified in notes as "B#1," ''B#2," and "B#3."

    An investigator working for the prosecutors also ranked the black prospective jurors against each other in case "it comes down to having to pick one of the black jurors."

    Still, Georgia courts were not persuaded.

    The argument featured no discussion of limiting the discretionary, or peremptory, decisions to reject potential jurors. Justice Thurgood Marshall warned in the Batson case that racial discrimination would persist until those discretionary jury strikes were eliminated.

    A decision in the case, Foster v. Chatman, 14-8349, is expected by late spring.

    http://bigstory.ap.org/article/b0a86...n-black-jurors
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    - Rev. Richard Hawke

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  9. #9
    Administrator Moh's Avatar
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    The US Supreme Court argument transcript can be found here.

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    2 Floyd County men on death row; Foster awaiting Supreme Court decision on appeal

    Two Floyd County men are sitting on death row in the state penitentiary in Jackson for crimes committed before the start of this millennium.

    Timothy Tyrone Foster and James Randall Rogers face death by lethal injection, but the U.S. Supreme Court still hasn’t made a decision on Foster’s appeal.

    Awaiting Supreme Court decision

    Foster, 48, tortured and murdered Queen Madge White, a retired school teacher, during a burglary in 1986 and was convicted and sentenced to death in 1987.

    White was found the next morning by her sister. Her jaw was broken and there was a gash on the top of her head. Before she was strangled to death she was molested.

    Although police found the stolen items from White’s house at Foster’s home and the 18-year-old confessed to the crime, the exclusion of black jurors from the trial gave Foster an avenue for an appeal.

    In January 2015, Foster petitioned the U.S. Supreme Court over a racial bias in his murder trial’s jury selection. The hearing occurred in November 2015, but the decision on the appeal hasn’t been announced yet.

    The court must decide if the Floyd County district attorney improperly excluded black jurors from Foster’s trial.

    Then-DA Steve Lanier struck off all four black jurors before the trial. Foster’s lawyers filed an open records request to receive the prosecutors’ notes from the 1987 trial.

    Those notes show the names of each potential black juror highlighted in green and the word “black” circled next to the race question on the questionnaires.

    A hearing in Floyd County Superior Court in 1987 ruled that Lanier provided race-neutral reasons for striking the four black jurors and the Georgia Supreme Court backed that ruling.

    Murdered with a rake handle

    It was May 21, 1980, and a 19-year-old Floyd County man had just raped and murdered his 75-year-old neighbor Grace Perry.

    James Randall Rogers, now 55, is currently housed on Georgia’s death row in Jackson.

    He was first convicted and sentenced to death in 1982 on charges of murder, rape and aggravated assault for raping and then impaling Perry with a rake handle.

    However, Rogers had to be retried, convicted and sentenced in 1985 after he appealed the original conviction because the grand jury pool didn’t include enough women.

    In 2007, the Supreme Court of Georgia upheld a Floyd County jury’s 2005 finding that Rogers wasn’t mentally retarded. The U.S. Supreme Court has banned the execution of mentally retarded criminals.

    One measure of defining mental retardation is consistently scoring less than 70 on IQ tests. Rogers took six tests, with his score falling below 70 only once.

    http://www.northwestgeorgianews.com/...2bceffa5d.html
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