Race

Justices Express Concern About “Disturbing History” of Race Bias in Mississippi Death Penalty Case

The U.S. Supreme Court seems poised to grant a new trial to Curtis Flowers (pictured), an African-American death-row prisoner tried six times for the same murders by a white Mississippi prosecutor who struck nearly every black juror from service in each of the trials. During oral argument in Flowers v. Mississippi on March 20, 2019, eight justices expressed concern that Flowers had been denied a fair trial as a result of race discrimination in jury selection in his case. Justice Samuel Alito called the case “very troubling” and Justice Brett Kavanaugh raised concerns about prosecutor Doug Evans’ pattern of discrimination.

Flowers has been tried six times for a quadruple murder in Winona, Mississippi in 1996. His first three convictions were overturned by the Mississippi Supreme Court as a result of prosecutorial misconduct. Two of those reversals included findings that Evans had violated Batson v. Kentucky, the landmark 1986 Supreme Court decision barring the use of discretionary strikes to remove jurors on the basis of race. Flowers’ fourth and fifth trials — the only trials in which more than one black juror was empaneled — ended in hung juries. At issue before the Court was Flowers’ sixth trial, in which a jury of 11 white jurors and one black juror convicted him and sentenced him to death.

The justices focused many of their questions on the records showing that Evans had a pattern of racial discrimination in selecting the juries for Flowers’ trials. Over the course of the five trials for which jury selection transcripts are available, Evans struck 41 of 42 eligible black jurors he had the opportunity to accept. Justice Kavanaugh said, “When you look at the 41 out or 42, how do you look at that and not come away thinking that was going on here was … a stereotype that you’re just going to favor someone because they’re the same race as the defendant?” Justice Alito said that Evans’ history left “reasons to be suspicious,” and said the case had an “unusual and really disturbing history.” Justice Sonia Sotomayor questioned Evans’ motives in personally prosecuting Flowers six times. Jason Davis, the lawyer arguing on behalf of the state of Mississippi, acknowledged that the history was “troubling,” but argued that Evans’ jury strikes in the sixth trial were not racially motivated. Kavanaugh challenged Davis, saying, “Part of Batson was about confidence of the community and the fairness of the criminal justice system. That was against a backdrop of a lot of decades of all-white juries convicting black defendants …. Can you say you have confidence in how this all transpired in this case?”

Sheri Lynn Johnson, arguing on behalf of Flowers, said Evans entered Flowers’ trial “with an unconstitutional end in mind – to seat as few African-American jurors as he could.” “The history is relevant,” she said, calling it “a history of a desire for an all-white jury, a history of willingness to violate the Constitution, and a history of willingness to make false statements to a trial court.” She urged the justices to consider the pattern of discrimination, not just Evans’ actions in the most recent trial. If the Court overturns Flowers’ conviction, the case will return to the state to decide whether to try Flowers for a seventh time.

Supreme Court Refuses to Hear Georgia Death-Penalty Case Involving Racist Juror

For the second time in just over one month, the United States Supreme Court has cleared the way for the execution of an African-American prisoner in the face of strong evidence of racial or religious bias. On March 18, 2019, the Court unanimously declined to hear an appeal from Georgia death-row prisoner Keith Tharpe (pictured), who argued his death sentence was unconstitutionally tainted by the participation of racist white juror who called him a “ni***er” and questioned “if black people even have souls.” That juror, Barney Gattie, signed an affidavit also saying that there were “two types of black people: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did.” In February, in a decision that evoked widespread condemnation from critics across the political spectrum, the Court vacated a stay of execution for Domineque Ray, a Muslim death-row prisoner, after Alabama denied his request to have an Imam present at the execution in circumstances in which it provided a chaplain for Christian prisoners.

Though agreeing on procedural grounds that the Court should not review the case, Justice Sonia Sotomayor issued a statement in connection with the Court’s action saying she was “profoundly troubled by the underlying facts of the case.” She wrote: “These racist sentiments, expressed by a juror entrusted with a vote over Tharpe’s fate, suggest an appalling risk that racial bias swayed Tharpe’s sentencing.” Justice Sotomayor said the latest decision “may be the end of the road for Tharpe’s juror-bias claim,” and the Court should therefore “not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.” "It may be tempting to dismiss Tharpe's case as an outlier, but racial bias is a familiar and recurring evil," she wrote. "That evil often presents itself far more subtly than it has here. Yet Gattie's sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arresting demonstration that racism can and does seep into the jury system."

In January 2018, the U.S. Supreme Court ordered the U.S. Court of Appeals for the Eleventh Circuit to reconsider Tharpe’s case, acknowledging that Tharpe had “present[ed] a strong factual basis for the argument that [his] race affected Gattie’s vote for a death verdict.” However, the appeals court refused to review his discrimination claim, saying he had never presented the issue to the state courts. Tharpe sought review of that decision by the U.S. Supreme Court, and received support from a number of groups, including Catholic bishops and the NAACP Legal Defense Fund.

Responding to the Court’s decision, Tharpe’s attorney Marcia Widder said in a statement: “Today’s decision from the U.S. Supreme Court takes giant steps backwards from the Court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice. What happened in Mr. Tharpe’s death penalty case was wrong. … Allowing Mr. Tharpe’s death sentence to stand is an affront to the fairness and decency to which we, as a society, should aspire.  True justice would not permit the State of Georgia to execute Mr. Tharpe on the basis of this record.” The NAACP Legal Defense Fund, which filed an amicus brief urging the Court to hear Tharpe’s case, issued a statement saying, “the Court’s refusal to consider his case on the merits is deeply distressing. As the Court recognized in Buck [v. Davis, in which a mental health expert testified that Buck posed an increased risk of future dangerousness because he is black], allowing death sentences to stand tainted by overt racial discrimination weakens public confidence in the rule of law and the administration of justice.” Putting it more directly, commentator Michael Harriot wrote for The Root, “Unlike the appeals process, apparently racism has no expiration date.”

NEW PODCAST: The Race Study that Convinced the Court to Declare Washington’s Death Penalty Unconstitutional

In October 2018, the Washington Supreme Court unanimously struck down the state’s death penalty, finding that it had been “imposed in an arbitrary and racially biased manner.” In reaching its decision in State v. Gregory, the court relied upon a study of twenty-five years of Washington State capital prosecutions that demonstrated that Washington juries were 4.5 times more likely to impose a death sentence on a black defendant than on a white defendant in a similar case. The authors of that study, Dr. Katherine Beckett (pictured, left) and Dr. Heather Evans (pictured, right), join DPIC’s Managing Director Anne Holsinger in the latest episode of our podcast, Discussions with DPIC, to discuss their research and its impact on the court’s decision to strike down the state’s death penalty. Beckett and Evans describe the factors they examined at various stages of capital sentencing, the major results of their study, and the role social science research plays in policymaking.

One of the most dramatic findings of the Washington study was that racial bias was rampant in the state’s capital sentencing outcomes even though there was no statistical evidence of racial discrimination in prosecutorial decisions on whether to seek the death penalty. “The research literature has identified a number of factors that contribute to bias in decision-making outcomes by juries,” Beckett explained. “We know, for example, that implicit bias is pervasive and affects perception and decision-making. … The death-qualification process is also a contributing factor, so we know that people who are in favor of the death penalty are more likely to exhibit implicit and possibly explicit bias. By excluding people who don’t feel comfortable or are philosophically opposed to the death penalty, we amplify the implicit bias that exists in the general population.” They noted that “substantial changes” would have to be made to the process of jury selection in capital cases in order to reduce the effects of implicit bias.

Although their study profoundly influenced capital litigation in Washington, Beckett and Evans said the information that allowed them to prove discrimination in sentencing may not be available in some other states. Under Washington’s death-penalty statute, the state supreme court was required to conduct proportionality review to determine whether a sentence was disproportionate to others imposed in similar circumstances. As a result, the state courts kept thorough records of the facts of murder convictions that are not necessarily available in other states. The researchers also noted that because the Washington Supreme Court decision was ultimately based on state constitutional law, other state courts might reach a different conclusion even if defendants could show similar patterns of bias in their state sentencing practices. With those caveats, Beckett and Evans believe that courts in other death-penalty states could benefit from similar studies. They noted that the Washington Supreme Court engaged “thoughtfully” and “deeply” with their research and found it heartening that “facts and evidence and rigorous research could be included in a deliberation of how to achieve more equity in the criminal justice system.”

Friend-of-the-Court Briefs Challenge Systemic Injustices in North Carolina Death Penalty 

Two amicus curiae briefs filed in the Racial Justice Act appeal of North Carolina death-row prisoner Rayford Burke (pictured) are asking the North Carolina Supreme Court to redress systemic problems in North Carolina’s administration of its death penalty. One brief, filed by the New York-based NAACP Legal Defense and Educational Fund (LDF), urges the court to provide Burke “the opportunity to prove that racial bias impermissibly influenced jury selection and infected his death sentence.” A second brief, filed by the Promise of Justice Initiative and 12 former judges, prosecutors, and law enforcement officials from North Carolina, asks the court to declare the state’s death penalty unconstitutional.  

Burke was convicted and sentenced to death for the 1992 murder of a man who he said had testified falsely against him in a prior case. He had sought review of his death sentence under North Carolina’s Racial Justice Act (RJA), enacted in 2009, which permitted prisoners to challenge their death sentences based on statistical evidence of racial discrimination. However, before a hearing was held on Burke’s Racial Justice Act claim, Cumberland County Superior Court Judge Gregory Weeks conducted an extensive evidentiary hearing in the case of Marcus Robinson and granted Robinson relief. In a 167-page opinion, Judge Weeks reviewed an “exhaustive study” of North Carolina prosecutors’ strikes and acceptances of more than 7,400 jurors in 173 North Carolina capital murder trials between 1990 and 2010 and found “a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina.” Weeks wrote that prosecutors struck black jurors at more than twice the rate of all other jurors, with “remarkable consistency” in strike rates in every county and across the entire period of time studied. Race, he said, “was a materially, practically and statistically significant factor in decisions to exercise peremptory challenges during jury selection by prosecutors when seeking to impose death sentences in capital cases” and he concluded that the strikes were intentionally undertaken on the basis of race. 

The legislature responded by repealing the RJA in 2013. Although four death-row prisoners had received sentence reductions prior to repeal, Burke’s claim had not yet been heard in court and his trial court ruled that the repeal had extinguished any right he had to a hearing. The state courts also overturned the grants of relief to the four prisoners. In March 2018, the state supreme court announced that it would hear RJA appeals from those prisoners, as well as from Burke and another prisoner whose RJA claim had also been filed but not heard. 

The LDF brief sets forth evidence that prosecutors discriminated in Burke’s case, including that prosecutors struck all African-American prospective jurors, resulting in an all-white jury, and called Burke “a big black bull” during the trial. It also catalogues what it describes as “a long and tragic history of entrenched racial discrimination in the administration of North Carolina’s death penalty.” In a statement accompanying the filing of the brief, LDF Senior Deputy Director of Litigation Jin Hee Lee said: “Allowing racial bias in Mr. Burke’s case to go unchallenged would be tantamount to condoning racial bias in the administration of justice. The Court must affirm its unwavering commitment to fundamental fairness and racial equality by affording Mr. Burke the opportunity to prove that discrimination tainted his death sentence,” said. 

The Promise of Justice Initiative brief, joined by the former judges, prosecutors, and law enforcement personnel, takes an even broader view, calling on the court to strike down North Carolina’s death penalty as unconstitutional. “The time has come to consider whether the system of capital punishment that currently operates in North Carolina violates the evolving standards of decency,” the brief states. Citing evidence that, in North Carolina, no one has been executed since 2006 and the state has averaged fewer than one new death sentence per year over the last seven years, the brief argues that “it is now beyond dispute that use of the death penalty is unusual.” It also points to recent court decisions striking down the death penalty in other states, including Delaware in 2016 and Washington in 2018. “Courts have recognized that the penalty is corrupted by arbitrariness, plagued by error and discrimination, and unsupported by evidence that it deters,” it says.  

Death-Row Prisoners Ask Supreme Court to Review Georgia, Oklahoma Verdicts Involving Racist Jurors

Georgia death-row prisoner Keith Tharpe (pictured, left) and Oklahoma death-row prisoner Julius Jones (pictured, right) are asking the U.S. Supreme Court to grant them new trials after evidence showed that white jurors who described the defendants with racist slurs participated in deciding their cases. The involvement of the racist jurors, the prisoners say, violated their Sixth Amendment rights to impartial juries. A juror in Tharpe’s trial gave a sworn affidavit years after voting to convict Tharpe, in which he wondered “if black people even have souls,” and said, “there are two types of black people: 1. Black folks and 2. N***rs." Tharpe, he wrote, “wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did." In Jones’s case, a juror told Jones’s legal team that another juror had said the trial was “a waste of time” and “they should just take the n***r out and shoot him behind the jail.”

Tharpe and Jones argue that two 2017 Supreme Court decisions, Peña-Rodriguez v. Colorado and Buck v. Davis, require the Court to reconsider their cases. In Buck, Chief Justice John Roberts declared for the Court that “the law punishes people for what they do, not who they are,” and overturned a death sentence imposed after a psychologist testified that Buck posed a greater risk of future dangerousness because he is black. The Chief Justice wrote that “discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice,” calling racism a “toxin[ that] can be deadly in small doses.” In Peña-Rodriguez, now-retired Justice Anthony Kennedy wrote for a five-justice majority of the Court that courts may consider a juror’s statement showing he had relied on racial stereotypes to convict a defendant as evidence of a Sixth Amendment violation.

In January 2018, the U.S. Supreme Court overturned a federal appeals court’s refusal to consider Tharpe’s racial discrimination claim.  Less than three months later, that court again refused to consider the issue, saying Tharpe had not previously presented it to the state courts. Jones has also repeatedly sought review of claims that racial discrimination has infected his case. He previously asked the Court to overturn his death sentence based on the findings of a 2017 study that showed significant racial disparities in Oklahoma’s death sentencing practices. On January 22, 2019, after having rescheduled consideration of Jones’s appel 25 times, the Court declined to review the case. Samuel Spital, who was co-counsel in Buck’s case and is lead counsel on the brief of the NAACP Legal Defense and Educational Fund’s friend-of-the-court brief supporting Tharpe, said of Tharpe and Jones, “We know that these two men are facing execution at least in part because they’re black. Under those circumstances, the state just doesn’t have an interest in enforcing a death sentence, and for that reason, the procedural obstacles that you would have with respect to certain other claims should not be part of the analysis.” The cases are considered a bellwether of the post-Kennedy Court’s commitment to racial justice.

U.S. Supreme Court Declines to Review Cases Alleging Racial Bias in Oklahoma Death Penalty

The United States Supreme Court has declined to review challenges brought by two Oklahoma death-row prisoners who alleged that their death sentences were the unconstitutional product of racial bias. Julius Jones and Tremane Wood had sought to overturn their death sentences based on the findings of a 2017 study that showed significant racial disparities in Oklahoma’s death sentencing practices. On January 22, 2019, the Court denied the petitions for writ of certiorari after having rescheduled consideration of Jones’s (pictured, left) and Wood’s (pictured, right) cases 25 times each.

In their petitions for certiorari, Jones and Wood relied upon a statistical study of Oklahoma death sentences imposed between 1990 and 2012 to argue that racial bias unconstitutionally infected their death sentences. In 2017, the Oklahoma Death Penalty Review Commission released a report on the state’s administration of the death penalty that included the findings of Dr. Glenn L. Pierce and professors Michael L. Radelet and Susan Sharp about the impact of race on death sentences. The study found that a murder defendant in Oklahoma accused of killing a white victim was more than twice as likely to be sentenced to death than a defendant accused of murdering a nonwhite victim. In cases like Jones’s and Wood’s, which involved only male victims, the study found that death sentences were nearly three times more likely to be imposed if the victim was white than if the victim was a person of color. It also found that when the victim was a white male, defendants of color, like Jones and Wood, were twice as likely as a white defendant to be sentenced to death.

Jones and Wood described other evidence that racial bias affected decisionmakers in their cases. The judge who presided over Wood's trial has made openly racist remarks, saying in 2011 that Mexicans are “nothing but filthy animals.” Jones was sentenced to death by a nearly all-white jury, following what his current lawyers describe as “pervasive and highly racialized pre-trial media coverage” and “racialized remarks made by prosecutors and at least one juror” during his trial. Dale Baich, one of Jones’s appellate lawyers, told The Oklahoman, that the facts of the case “vividly show how racial bias can lead to a wrongful conviction.” Jones is scheduled to file a separate petition for certiorari on January 28 raising the issue that one of the jurors in the case said “they should just take the n****r out and shoot him behind the jail.”

Citing Evidence of Innocence, Race Discrimination, Georgia Court Grants New Trial to Former Death-Row Prisoner

A Georgia judge has granted a new trial to Johnny Lee Gates (pictured recently, right, and at the time of trial, left) based on new evidence that excludes him as the source of DNA on implements used by the killer during the 1976 rape and murder for which Gates was sentenced to death. DNA testing disclosed that Gates’s DNA was not found on a necktie and the bathrobe belt the prosecution said were used by the killer to bind Kathrina Wright, the 19-year-old wife of a soldier stationed at Fort Benning during the murder. In a January 10, 2019, decision overturning Gates’s conviction, Senior Muscogee County Superior Court Judge John Allen credited the analysis of defense DNA expert Mark Perlin that Gates’s DNA was not present on the evidence. Judge Allen noted that Perline had trained the two Georgia Bureau of Investigation scientists the prosecution relied upon in the most recent court proceedings in the case and that the testimony of the GBI witnesses supported Perlin's conclusions. Judge Allen wrote that “[t]he exclusion of Gates’ profile to the DNA on the two items is material and may be considered exculpatory” and entitled Gates to a new trial.

Gates, who is African American, was convicted and sentenced to death by an all-white jury in a racially charged case. His death sentence was overturned in 2003 based upon evidence that he is intellectually disabled, and he was resentenced to life. Heightening the racial tensions of a black man accused of raping and murdering a young white woman, prosecutors deliberately excluded African American jurors from the case. Lawyers from the Georgia Innocence Project and Southern Center for Human Rights filed a motion in March 2018 arguing that Columbus, Georgia prosecutors engaged in a pattern and practice of systematically striking black prospective jurors because of their race in Gates’s case and six other capital cases with black defendants, discriminatorily empanelling all- or nearly-all-white juries in those cases. The prosecutors’ jury selection notes in those seven capital trials showed that the state attorneys in his case had carefully tracked the race of jurors, struck every black juror they could, and repeatedly wrote derogatory comments about blacks and black prospective jurors. A Georgia Tech mathematics professor provided expert testimony that the probability that black jurors were removed for race-neutral reasons was infinitesimally small – 0.000000000000000000000000000004 percent. In an opinion that excoriated local prosecutors for “undeniable ... systematic race discrimination during jury selection,” Judge Allen found that the prosecutors “identified the black prospective jurors by race in their jury selection notes, singled them out … and struck them to try Gates before an all-white jury.” However, the court said the race discrimination against Gates was not grounds to grant him a new trial because he had not shown that the lawyers who previously represented him did not have access to the evidence of systematic discrimination.

New Voices: Former Texas Criminal Appeals Judge Suggests “Pause” on Texas Death Penalty

Retiring Texas Court of Criminal Appeals judge and former prosecutor Elsa Alcala now believes that the death penalty is unreliably and discriminatorily applied in the nation’s most aggressive capital punishment state. In a new Houston Chronicle “Behind the Walls” podcast, Judge Alcala – who calls herself “a Republican hanging on by a thread” – told reporter Keri Blakinger, “I think we know enough right now to even call for a moratorium or just to pause all of this and to say, you know, ‘What is going on? Why does Texas have such a high percentage of people who get the death penalty and are executed as compared to the rest of the country?’”

Hired as a prosecutor by Harris County District Attorney Johnny Holmes, who gained notoriety as one of the nation’s deadliest prosecutors, Alcala spent nine years trying capital cases in the DA’s office of the country’s leading death-sentencing county. She then served as a county trial judge before being appointed by then-governor George W. Bush to serve on the state’s highest criminal court, the Texas Court of Criminal Appeals. As she was exposed to a range of problems in Texas death penalty cases, her views on the capital punishment evolved. She became a skeptic of capital punishment, often dissenting from denials of death-penalty relief and, in the case of Julius Murphy, called on the court to consider whether the state’s death penalty was constitutionally administered. When she left the bench, Judge Alcala accepted a policy role at the Texas Defender Service, where she will advocate for criminal justice reform. In an interview with the Texas Tribune, she joked, “[m]aybe I can have more success at the legislative level to get somebody to understand that there are some real true problems.”

In the podcast interview, Alcala cites a range of factors that changed her views about capital punishment. She discusses ineffective lawyers and parole laws that, at the beginning of her career, forced jurors to choose between a 15-year prison sentence and a death sentence for death-eligible defendants. “What do you do with these people who ... got there back to in the 90s when we know for a fact that the lawyers were not doing what they should have been doing in my mind?” Alcala asked. “And then the question is, as they come up to be executed, are we going to continue to execute them and tolerate the fact that things were done imperfectly? … I think, still percolating through all of that is that a lot of those [cases] are subject to that old parole law.”

When asked about the decline of the death penalty in Texas, Alcala said, “It is on the decline significantly. Whether it will ever go away and when it will go away – I don't know, I think it is imperfect. More accurately, I should say it is unreliable – I have lost faith in the reliability of the death penalty. And that is what underlies my involvement with the Texas Defender Service. It is: If you're going to have the death penalty, then do it correctly. You know, give them a good trial lawyer, give them a good appellate lawyer, give them a good habeas lawyer at the state level, give them a good federal lawyer and don't let racial prejudice at all influence anything that's going on.” The death penalty, she said, “is just not reliable. It’s not something that I can say is being done the way that it should be done to give you confidence in it as a punishment form. … I think, why is Texas so out of line with the rest of the country? It can't be that our people are worse, right? I mean, Texans are good people. Are our crimes worse than the rest of the country? I don't think so. Are our people worse than the rest of the country? I don't think so.  So somehow we are out of line.”

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