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U.S. Supreme Court: Death Penalty Case Involving Racist Juror Requires Further Consideration

by Christopher Zoukis

In a brief per curiam opinion, the United States Supreme Court vacated an Eleventh Circuit Court of Appeals decision that foreclosed potential relief for a prisoner on death row whose conviction may have been influenced by a racist juror.

The January 8, 2018, opinion allowed Keith Tharpe’s habeas corpus petition to proceed. Tharpe, who has been on Georgia’s death row for over two decades, was convicted of the 1991 murder of his estranged wife’s sister, Jaquelin Freeman.

Tharpe’s claim rested on an affidavit signed by juror Barney Gattie, in which he explained the reasoning underlying his decisions in the jury room. According to the affidavit, Gattie (who is white) drew a distinction between Tharpe and Freeman, both of whom are black.

“The Freemans are what I would call a nice Black family,” wrote Gattie. “In my experience I have observed that there are two types of black people. 1. Black folks and 2. N*****s.”

Gattie went on to say that Tharpe “who wasn’t in the ‘good’ black folks category in my book should get the electric chair for what he did,” and that “[a]fter studying the Bible, I have wondered if black people even have souls.”

Both the U.S. District Court and the Eleventh Circuit found that because a Georgia state court had already determined that Gattie’s presence on the jury did not prejudice Tharpe, he could not proceed with a federal habeas corpus claim. The Supreme Court noted, however, that if there is clear and convincing evidence to the contrary to the state court’s ruling, it is not binding on federal courts. 28 U.S.C. § 2254(e)(1). Without making that determination, the Court ruled that the lower courts should look again.

The Court noted that the Eleventh Circuit denied Tharpe’s certificate of appealability (“COA”) “based solely on its conclusion, rooted in the state court’s fact-finding, that Tharpe had failed to show prejudice” by Barney Gattie’s behavior and influence on the jury’s verdict.

The Supreme Court disagreed with that assessment. “Gattie’s remarkable affidavit—which he never retracted—presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict,” wrote the Court. It further explained that at “the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court’s factual determination was wrong. The Eleventh Circuit erred when it concluded otherwise.”

Accordingly, the U.S. Supreme Court granted Tharpe’s motion to proceed in forma pauperis, granted the petition for certiorari, vacated the Eleventh Circuit’s judgment, and remanded the case for further consideration as to whether Tharpe is entitled to a COA. See: Tharpe v. Sellers, 138 S. Ct. 545 (2018).  


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Related legal case

Tharpe v. Sellers



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