March 29, 2018 Practice Points

SCOTUS to Reopen Case Heard by Racist Juror

By Leonard Wills

On January 8, 2018, the Supreme Court, in a 6–3 unsigned opinion, voted to “give a black inmate, Keith Tharpe, convicted of murder a chance to overturn his 27-year-old death sentence because of a comment made by a white juror” seven years after his trial.

In 1990, Tharpe ambushed, kidnapped, and raped his ex-wife, and in “the process shot and killed his ex-wife’s sister, Jacquelin Freeman.” In 1991, Tharpe was found guilty and sentenced to death by a jury of ten white people and two black people in Georgia’s Jones County.

Prior to Tharpe’s 2017 execution date, Tharpe’s attorneys presented the Supreme Court with a 1998 affidavit from Barney Gattie, a juror in the case, explaining his reasoning for the death penalty.

In the affidavit, Gattie gave the following testimony:

The Freemans are what I would call a nice Black family. In my experience I have observed that there are two types of black people. 1. Black folks and 2. Niggers. Because I knew the victim and her husband’s family and knew them all to be good black folks, I felt Tharpe, who wasn’t in the “good” black folks category in my book, should get the electric chair for what he did.

He later added, “After studying the bible, I wonder if black people even have souls.”

The Court “issued a late-night order to stop Tharpe’s execution.” Additionally, “the justices issued a three-page ruling that told the Eleventh Circuit Court to reconsider Tharpe’s plea for a new sentence hearing.”

Previously, the Eleventh Circuit rejected Tharpe’s appeal request, because after reviewing the case, state judges found no evidence to show that Tharpe had been “a victim of racial bias in the jury room.” The Eleventh Circuit ruled that Tharpe failed to make “a substantial showing of the denial of a constitutional right” and “failed to demonstrate that Barney Gattie’s behavior had [a] substantial and injurious effect or influence in determining the jury’s verdict.”

The Supreme Court, however, ruled that the affidavit “presents a strong factual basis for the argument that Tharpe's race affected Gattie's vote for a death verdict.” The majority opinion, however, noted that Tharpe “faces a high bar” to overturn the state’s ruling that Gattie’s “statement did not play a role in the jury’s deliberations.”

Since the 1990s, the Supreme Court has generally deferred to the factual rulings of state courts and only reversed them for extraordinary reasons. The Court, recently however, has taken a different course.

In 2017, the Supreme Court reviewed two decisions involving race. The Court reviewed “the case of a black death row inmate in Texas whose sentencing hearing included testimony from a crime expert who said blacks are more likely than whites to commit future crimes.” The Court in “Pena-Rodriguez vs. Colorado said trial judges should reconsider a jury's verdict if they learn that a juror made racist comments during the deliberations.” Tharpe’s attorneys cited both decisions.

The attorneys for Georgia pointed out that Gattie disavowed his first affidavit because he made the statements while he was under the influence of alcohol. He later testified before a judge that “his views on race did not impact his decision as a juror.” Other jurors also stated that “race played no role in their deliberations.”

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented. In the long run, Tharpe would probably lose “given the difficulty of challenging state capital convictions in federal court,” Justice Thomas wrote. Thomas concluded by stating that remanding this case to the court of appeals “delays justice for Jacquelin Freeman, the black woman brutally murdered by Tharpe 27 years ago.”


Leonard Wills is a presidential management fellow with the U.S. government in Washington D.C.


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