U.S. Supreme Court Orders Federal Appeals Court to Reconsider Case Involving Racially Biased Juror

The U.S. Supreme Court has directed a federal appeals court to reconsider whether Georgia death-row prisoner Keith Tharpe (pictured) is entitled to federal court review of his claim that he was unconstitutionally sentenced to death because he is black. On January 8, the U.S. Supreme Court issued a 6-3 opinion sending Tharpe's case—in which a racist juror used an offensive slur to describe the defendant and doubted whether African Americans have souls—back to the U.S. Court of Appeals for the Eleventh Circuit for further consideration whether the federal courts should hear his claim of juror bias. Seven years after Tharpe was sentenced to death, his attorneys obtained a sworn affidavit reviewed and initialed by Barney Gattie, a white man who served as a juror at Tharpe's trial. In his statement, Gattie said, "After studying the Bible, I have wondered if black people even have souls," and, "there are two types of black people: 1. Black folks and 2. Ni[**]ers." Gattie also expressed his belief that Tharpe "wasn’t in the ‘good’ black folks category in my book, [and] should get the electric chair for what he did." According to Gattie, the victim was one of the "nice black folks," but "[i]f [the victim] had been the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much." Despite these statements, the Georgia state courts rejected Tharpe’s racial-bias claim after prosecutors obtained a second affidavit from Gattie asserting that he was not a bigot. State prosecutors have not denied that Gattie made these statements, but have attempted to defend them by saying that Gattie had been drinking when he signed the affidavit. The Georgia federal courts had also denied Tharpe relief on the claim, deferring to the fact-finding of the state courts that Gattie's bigoted statements were not prejudicial. However, in 2017, the U.S. Supreme Court decided two major cases that Tharpe said required the federal courts to reconsider his claim:  Buck v. Davis, a Texas death-penalty case in which the racially biased testimony of an expert witness created an unacceptable risk that Buck was sentenced to death because he was black, and Pena-Rodriguez v. Colorado, a case that overturned a state-court rule that prevented defendants from using racially biased statements made by a juror as evidence of juror misconduct during deliberations. Georgia was scheduled to execute Tharpe in September 2017, but the Supreme Court granted him a last-minute stay to decide whether to review his case. The Court ultimately accepted review of the case, issued a per curiam ruling in Tharpe v. Sellers  without further briefing or argument, and returned the case to the Eleventh Circuit, which must now consider whether to issue a Certificate of Appealability—a procedural prerequisite to considering an issue on appeal. Brian Kammer, Tharpe's attorney, said, "We are thankful that the U.S. Supreme Court recognized the serious implications for fundamental fairness of the clear evidence of racial animus on the part of one of the jurors who sentenced Mr. Tharpe to death." Justice Clarence Thomas dissented, joined by Justices Alito and Gorsuch, criticizing the Court for interfering in the case and failing to respect the lower courts' judgments.

(Bill Rankin, Supreme Court sends case of racist juror back to Atlanta appeals court, Atlanta Journal-Constitution, January 8, 2018; Amy Howe, Court sends case of Georgia death-row inmate back to lower courts over Thomas dissent, SCOTUSBlog, January 8, 2018; Press Release, BREAKING - Attny Statement Re: SCOTUS Cert Grant in GA Racial Bias Death Penalty Case, January 8, 2018; Andrew Cohen, Why I Believe the Supreme Court Needs to Stop This Georgia Execution, Esquire, September 14, 2017.) Read the opinion and the dissent here. See Race and U.S. Supreme Court.