« Lots more notable new reporting and commentary from The Marshall Project | Main | "Retributive Justifications for Jail Diversion of Individuals with Mental Disorder" »

September 25, 2017

Reviewing the racial bias and other concerns surrounding Georgia's planned execution of Keith Tharpe

CNN has this new article reviewing issues being raised in the run-up a scheduled execution in Georgia.  The article is headlined "Questions of racial bias surround black man's imminent execution," and here are excerpts:

The state of Georgia is set to carry out its second execution of the year on Tuesday, when it plans to put to death Keith Tharpe, who was sentenced in 1991 for murdering his sister-in-law.  But Tharpe, 59, and his attorneys are seeking a stay of execution, based in part on racist comments a juror made after the trial had ended.  Tharpe is black and the now-deceased juror who made the comments was white.

The attorneys are not claiming that Tharpe is innocent of the crimes for which he's been convicted. Rather, they are arguing that his death sentence should be overturned because of juror misconduct.  They say Tharpe's death sentence was the result of a racially biased juror who, in a post-trial interview seven years after Tharpe's conviction and sentencing, used the n-word and wondered "if black people even have souls."

A biased juror, they argue, violates Tharpe's constitutional rights to a fair trial, guaranteed by the Sixth Amendment.  They also argue that the juror lied during jury selection, concealing the fact that he knew the victim's family. Furthermore, the attorneys say Tharpe is intellectually disabled, which would make it illegal for him to be executed under federal law....

At the time of his crime, September 25, 1990, Tharpe and his wife were estranged. Prosecutors said Tharpe stopped his wife and sister-in-law in the road as they drove to work, according to court filings from the federal district court. The documents say he took his sister-in-law, Jacquelin Freeman, to the back of the vehicle and shot her with a shotgun before throwing her into a ditch and shooting her again, killing her. An autopsy showed Freeman had been shot three times.  Prosecutors alleged Tharpe then raped his wife and took her to withdraw money from a credit union, where she was able to call police for help, according to the documents. Three months later, convicted of malice murder and kidnapping, Tharpe was sentenced to death. 

Tharpe's current case centers on the post-conviction testimony of Barney Gattie, a white juror in Tharpe's trial....  Brian Kammer, Tharpe's attorney with the Georgia Resource Center, said Gattie showed in his interview that he "harbored very atrocious, racist views about black people."  Tharpe's lawyers claim Gattie, who is now deceased, used the n-word with the lawyers throughout the interview, in reference to Tharpe and other black people....

Georgia law states that juror testimony cannot be used to impeach the verdict, or render it invalid -- even if it involves racial bias, Kammer said.  At the time Gattie made the statements in question, this rule kept Tharpe's attorneys from being able to use them to prove his death sentence was the result of racial bias.  In Georgia, defendants can only receive a death sentence if the jury reaches the decision unanimously.

But Kammer and his team are relying on some recent United States Supreme Court decisions to back their motion for a stay of execution.  The central one, Kammer told CNN, is Pena-Rodriguez v Colorado.  In March, the US Supreme Court held in a 5-3 vote that laws like Georgia's are invalidated when a juror "makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant," Justice Anthony Kennedy wrote in the majority opinion.

Essentially, a juror's racial bias constitutes a violation of a defendant's rights to an impartial jury guaranteed by the Sixth Amendment, and prevents defendants from being able to prove a violation of their constitutional rights.  "A constitutional rule that racial bias in the justice system must be addressed -- including, in some instances, after the verdict has been entered -- is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right," Kennedy said.

Tharpe's request for a stay was denied by the 11th Circuit Court on September 21.  A federal district court denied Tharpe's motion seeking a reopening to federal habeas proceedings on September 5, the day before the state issued a warrant for his execution.

September 25, 2017 at 04:21 PM | Permalink


"The attorneys are not claiming that Tharpe is innocent of the crimes for which he's been convicted."

That makes the motion frivolous. The defense lawyer should be made to pay all costs from his personal assets. There is an infinite number of errors to pick on in any human enterprise. All pre-textual if the substance is not challenged.

Posted by: David Behar | Sep 25, 2017 5:18:23 PM

Obviously one would prefer that he didn't have a racist juror.

That said, I'm sick of all the "it isn't fair to execute this guilty murderer because of [insert reason here]." If there is an argument the person is innocent, or even might be innocent, that is an excellent reason not to execute them. If there is an argument the person, while guilty of murder, didn't intend to cause death, or even might not have intended to cause death, I think that's good enough, too. But if the killer intended to kill, then, well, how much fairness did he show to his victim?

Posted by: William Jockusch | Sep 26, 2017 1:06:44 AM


This is the argument about the fairness of the process. The defense has wisely chosen a fairness issue that few can (will) argue with. But it won't be about something as clear as racist decision-maker in most claims and they will still be attempting to rip open old judgments long settled with no question of guilt. I personally think the concept of the finality of judgments has been undermined to the point of being nearly non-existent. The Real limiting factor here is not the law, it is money.

Here in California we have gotten to the point where "fairness" in the process is as or more important than the question of guilt. Unfortunately that argument seems to be more important than whether the person is guilty or not and fairness is not defined in terms of due process fairness, but rather if law enforcement has properly navigated the increasingly complex rules applied to their behavior.

Posted by: David | Sep 26, 2017 9:41:26 AM

Fairness. Let me translate. Endless lawyer procedure to generate massive, worthless, lawyer make work jobs. This is straight stealing from the taxpayer, and actually unfair to all the parties, including the defendant. The latter is kept on death row and receives its cruelties so lawyers can make a bad living.

Posted by: David Behar | Sep 26, 2017 10:13:40 AM

Last time I checked, due process is right there in the Constitution. Twice! And yes, "fairness," or as I would put it, fairness, is crucially important to the legitimacy (real and perceived) of any legal system -- more important than finality. Fairness includes, among many other things, the right not to have people voting for the state to put you to death because they don't like the color of your skin.

Posted by: Ain't Nick | Sep 26, 2017 10:14:37 AM

“Those who would abolish capital punishment are not urging British to embark upon a new and hazardous experiment, or traverse uncharted seas, but merely to follow the lead of the many other countries where the death penalty as already dispensed with.”
Calvert Roy. Capital Punishment in the Twentieth Century. Putnam. London. 1927 p 45

“Indeed, it would have been odd if it had transpired that Englishmen alone are so peculiarly brutal by nature that they require some special deterrent from murder which nearly all the civilised countries of the world have found unnecessary in practice - in many cases for generations.”
Gerald Gardiner, Capital Punishment as a Deterrent, London, Gollanz, 1956. p 56

Posted by: Claudio Giusti | Sep 26, 2017 10:38:37 AM

The article notes the challenge raises various claims, including regarding how the juror is tainted. It is by now basic that a tainted juror can taint the verdict. The article, e.g., notes there is a claim the juror knew the victim's family. It is unclear how much, but we can assume for sake of argument a close friend. Someone who can reasonably be deemed biased enough to be tainted. Same as if the judge was found tainted. There is nothing "recent" about such claims. Some years back, e.g., I read a study of American law that discussed "technicalities" being used to overturn verdicts in the 19th Century.

Ain't Nick is correct too.

Posted by: Joe | Sep 26, 2017 11:24:56 AM

“The history of American freedom is in no small measure the history of procedure.” Malinski v. New York, 324 U.S. 401, 414 (1945) (Frankfurter, J, concurring).

"It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

Posted by: Michael R. Levine | Sep 26, 2017 12:25:20 PM

Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

Posted by: Joe | Sep 26, 2017 1:25:01 PM

The unworthy. The Devil. The skin color of the murderer.

All are lawyer clients. All of that is bullshit, that pleading for fairness. All fairness is code for lawyer procedure and salary. While you prostitutes make your lousy living, thousands of murder victims die, and millions of attack victims are injured and suffer.

I would flatten all the laws of the land to stop the lawyer profession. It is the most dangerous, stupidest, most toxic, most treasonous gang of a criminal cult enterprise in our land, that has fully infiltrated and is now in total control of our government.

Posted by: David Behar | Sep 26, 2017 7:16:29 PM

Supreme Court held it up for now, 6-3.

Posted by: Joe | Sep 26, 2017 11:29:48 PM

You are right, legal hassles involving car accidents & personal injury cases are very complicated & stressful. Dealing with the Insurance Corporation of British Columbia (ICBC) when trying to settle your injury claim can be complex. But with the help of a personal injury lawyer in Surrey, you can work through these complexities and be satisfied with the outcome achieved. http://NirwanLawCorp.com/Surrey-ICBC-Car-Accidents-Lawyer/ are the most experienced in the market, do check them out.

Posted by: Nic Carters | Sep 27, 2017 3:11:48 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB