May 10, 2019 U.S. Supreme Court News

Supreme Court Refuses to Hear Racial Bias Claim, Leaving Procedural Bar in Place

Callie Heller, Staff Attorney

On March 18, 2019, the Court denied Georgia death row prisoner Keith Tharpe’s petition for certiorari review. During the state post-conviction proceedings, Tharpe’s attorneys had obtained an affidavit from one of Tharpe’s jurors. The affidavit detailed the starkly racist beliefs of the white juror. Among other statements, the juror expressed his belief that “there are two types of black people: good ones and n-----s”, and he wondered “if black people even have souls.” Because Tharpe had not produced this evidence during direct appeal, Georgia law required him to plead the “cause and prejudice” of the default--i.e., the reason the evidence had been omitted, and how the evidence would have impacted the trial’s outcome. After a hearing, the state court concluded that the prejudice element had not been met, crediting the juror’s testimony that, despite the egregious contents of his affidavit, he had not relied on race in sentencing Tharpe to die.

Allowing Mr. Tharpe’s death sentence to stand is an affront to the fairness and decency to which we, as a society, should aspire.

Marcia Widder

Counsel for Mr. Tharpe

At the conclusion of the habeas process, where Tharpe was repeatedly denied relief, he returned to court to argue that the Supreme Court’s 2017 decisions in Buck v. Davis and Pena-Rodriguez v. Colorado changed the landscape for re-consideration of previously defaulted claims of race-based sentencing. After the lower federal courts denied his motion, and the Eleventh Circuit refused to hear the case, the Supreme Court granted certiorari in 2018, reversing and remanding. The Court found that the Eleventh Circuit erred in its finding that Tharpe had indisputably failed to prove prejudice in his trial. To the contrary, the Court said, there was a “strong factual basis for the argument that Tharpe’s race affected [the juror’s] vote for a death verdict.”

On remand, the Eleventh Circuit again refused to hear the case. It held that, even if jurists of reason could debate whether Tharpe had shown he was prejudiced, he had unquestionably failed to show why the evidence was not presented sooner, and therefore had not overcome the procedural default barring his claim. It also held that Pena-Rodriguez did not apply because Tharpe’s conviction had become final before that decision.

Tharpe’s lawyers again sought review of the Eleventh Circuit’s decision in the Supreme Court, but this time the high court refused to intervene. Justice Sotomayor wrote a separate statement respecting the denial of certiorari to make clear that, although she concurred in the denial of the petition, she was “profoundly troubled” by the “truly striking evidence of juror bias.”

“[W]e should not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review,” Justice Sotomayor lamented. 

Tharpe’s attorney, Marcia Widder, said of the denial: “Allowing Mr. Tharpe’s death sentence to stand is an affront to the fairness and decency to which we, as a society, should aspire.”