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.”

(Ariane de Vogue, Supreme Court declines to take up Georgia death penal­ty case, CNN, March 18, 2019; Tony Mauro, Sotomayor Is ​‘Profoundly Troubled’ by Georgia Death Penalty Case, National Law Journal, March 18, 2019; Michael Harriot, Supreme Court Declines to Hear Case of Man Sentenced to Death by a Racist Juror, The Root, March 18, 2019; Statement, Marcia Widder, Attorney for Keith Tharpe and Senior Litigator at the Georgia Resource Center, March 18, 2019; Press Release, LDF Statement on U.S. Supreme Court Declining to Review Keith Tharpe’s Racially-Biased Death Sentence, NAACP LDF, March 18, 2019.) Read Justice Sonia Sotomayor’s state­ment respect­ing the denial of cer­tio­rari. See Race and U.S. Supreme Court.