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.

(Jordan S. Rubin, Juror Slur Cases Confront Supreme Court Divided on Race, Bloomberg Law, February 7, 2019.) See Race and U.S. Supreme Court.