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The Supreme Court Should Stop This Georgia Execution

When a racist juror helps convict a black man, the Court should follow its own precedent and set the verdict aside.

September 13, 2017

Update: The U.S. Supreme Court has stayed Keith Tharpe’s execu­tion while they decide to hear his appeal. The Court voted 6–3 to grant the stay, with Chief Justice John Roberts in the major­ity, and Alito, Gorsuch and Thomas dissent­ing. Part of Tharpe’s appeal concerns the racist comments made by juror Barney Gattie.

If the Supreme Court is seri­ous about the redu­cing the impact of racial preju­dice in capital cases — and two recent decisions suggest it is — the justices will halt the pending execu­tion of a Geor­gia man and grant him a new trial. At stake in the case of Keith Tharpe is not the ques­tion of his guilt or inno­cence. At stake is the propos­i­tion that no black person should be condemned to death by a white juror who proudly boasts after senten­cing that he voted to impose capital punish­ment because the defend­ant was a “nigger.” 

The facts of the case are simple. Tharpe went on trial in 1991 for capital murder and sexual assault in Jones County, a rural area about 90 miles south­east of Atlanta. His prosec­utor, a district attor­ney named Joseph Briley, came to the case with a repu­ta­tion for using racially discrim­in­at­ory peremp­tory strikes during jury selec­tion. The federal courts had caught him in prior cases illeg­ally attempt­ing to exclude blacks from juries sitting in judg­ment of black defend­ants. In Tharpe’s case, Briley success­fully managed to elim­in­ate five of eight qual­i­fied black jurors. No prob­lem, the trial judge declared, there was no evid­ence of bad faith on Briley’s part. 

One of the jurors who made it onto Tharpe’s panel, one embraced by prosec­utor Briley, was Barney Gattie, who swore up and down during voir dire that he had no precon­ceived notions about the case and did not know the victims. It didn’t take long for Gattie and his fellow jurors to convict Tharpe and sentence him to death. (The entire trial, includ­ing the penalty phase, lasted about a week.) That would have been that, and we never would have heard of this case, except that Gattie, a retired truck driver, had much more to say about Tharpe when he was ques­tioned by lawyers work­ing on Tharpe’s post-convic­tion appeal in 1998. Here is how Tharpe’s current attor­neys char­ac­ter­ize that conver­sa­tion: 

Mr. Gattie expressed his feel­ings about the case in general. He stated that there are two kinds of black people in the world — “regu­lar black folks” and “niggers.” Mr. Gattie noted that he under­stood that some people do not like the word “nigger” but that is just what they are, and he “tells it like he sees it.” Accord­ing to Mr. Gattie, if the victim in Mr. Tharpe’s case had just been one of the niggers, he would not have cared about her death. But as it was, the victim was a woman from what Mr. Gattie considered to be one of the “good black famil­ies” in Gray [a city in Jones County]. He explained that her husband was an EMT. Mr. Gattie stated that that sort of thing really made a differ­ence to him when he was decid­ing whether to vote for a death sentence. 

There is more from Gattie in the record now that illus­trates he was not faith­ful to his oath as a juror but the above is more than suffi­cient. But as soon as prosec­utors saw 

Gattie’s sworn state­ment, they rushed to his home and got him to sign a counter-affi­davit two days after he signed the first one. The new affi­davit sought to nullify what he told Tharpe’s invest­ig­at­ors. Gattie, who now swore he wasn’t a bigot, claimed he had been drink­ing beer and whis­key when he spoke to the defense, and didn’t pay much atten­tion when the affi­davit was read to him. He said many of his state­ments “were taken out of context and simply not accur­ate.” He signed the defense affi­davit because he “just wanted to get rid of them.” That second affi­davit, the one in which Gattie – who is deceased—s­wore he had no racial animus, has been the basis of the state’s defense for the past 20 years. 

Geor­gia courts have consist­ently failed or refused to acknow­ledge the import of Gattie’s first sworn state­ment, the one he reviewed and initialed before he real­ized that one really should not say such things under oath. Instead, state prosec­utors and state judges have concluded that they need not address the merits of Tharpe’s claim of preju­dice because he is proced­ur­ally barred from making it. Tharpe simply waited too long to learn that one of his jurors sentenced him to death for being a “nigger,” in other words. For years, Geor­gia has also relied on a common rule that precludes judges from consid­er­ing a juror’s post-trial comments that “impeach” the reli­ab­il­ity of a verdict (a rule, as we’ll see below, the Supreme Court just dimin­ished). 

Geor­gi­a’s defense of racism is indefens­ible as a matter of law and fact. This surely was true in 1998 when the Geor­gia courts began discount­ing the import­ance of a racist juror in the capital trial of a black defend­ant. And it is espe­cially true now, ever since the Supreme Court decided Buck v. Davis in Febru­ary and Pena-Rodrig­uez v. Color­ado in March. Buck is a Texas case in which a notori­ous defense expert told jurors in the capital trial of Duane Buck that the defend­ant would likely be more danger­ous in the future because he was black. Texas defen­ded that outrageous predic­tion for decades, even after state offi­cials acknow­ledged the damage the exper­t’s racist testi­mony had caused in other trials. In a 6–2 ruling, the justices finally put a stop to this nonsense, sweep­ing away the hoary proced­ural objec­tions state offi­cials had erec­ted to deny Buck the right to a trial free from racial preju­dice. 

The Pena-Rodrig­uez decision is even more apt as preced­ent for Tharpe case. In Pena-Rodrig­uez, a juror made a series of racist state­ments about the defend­ant, a Hispanic man. No reas­on­able person read­ing the state­ments would conclude the defend­ant received a trial free from uncon­sti­tu­tional bias or preju­dice. But for years Color­ado defen­ded the convic­tion by arguing that jurors could not be “impeached” for miscon­duct during delib­er­a­tions after the verdict. Voting 5–3, the justices again declared that such logic was nonsense. In cases of obvi­ous racial preju­dice,the court said, the “no-impeach­ment” rule had to give way to the more substant­ive Sixth Amend­ment right to a fair trial. 

Now comes Geor­gia, which is defend­ing the comments of a racist juror by arguing that Buck and Pena-Rodrig­uez some­how don’t apply to Tharpe, or at least don’t apply directly enough to spare his life and at least give him a new trial where one of his jurors does­n’t glee­fully consider him a “nigger.” Geor­gia, in fact, is rely­ing on the same jury impeach­ment rule that Color­ado unsuc­cess­fully used in Pena-Rodrig­uez. Tharpe surely hopes the result will be the same- a rescue from the justices as they acknow­ledge the Sixth Amend­ment means little if a juror like Gattie can infect a capital case. 

As it now stands, Tharpe will die by the state’s hand at 7:00 p.m. Septem­ber 26th. A district court has rejec­ted Thorpe’s latest motion and an appeal is pending before the Elev­enth Circuit. What has happened to Tharpe so far is another clas­sic example of the hollow­ness of the law, where judges hide behind proced­ural, post-convic­tion rules to justify convic­tions that are, like this one, hard to justify as a matter of common sense. What should happen now is obvi­ous. Gattie is dead and cannot testify. Keith Tharpe may be guilty of murder. In the end, he may even deserve the death penalty. But a convic­tion and death sentence based in part on bigotry cannot be coun­ten­anced if the consti­tu­tional right to a fair trial, and the right to equal protec­tion and due process of law, mean anything.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Photo: AP)