Portside

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

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.

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Andrew Cohen is a fellow at the Brennan Center for Justice. He is also the Commentary and Analysis Editor at The Marshall Project, legal analyst for 60 Minutes, and chief analyst and legal editor for CBS Radio News. He has won a Murrow Award as one of the nation's leading legal analysts and commentators. He is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America. Follow Cohen on Twitter at @JustADCohen.