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September 26, 2017

US Supreme Court, voting 6-3, issues last-minute stay of execution in Georgia

As revealed in this new order and explained in this local article, the "U.S. Supreme Court granted a stay of execution tonight to condemned killer Keith Tharpe, three and a half hours after he was scheduled to be put to death by lethal injection." Here are the basics:

In a 6-3 decision, the court’s justices were apparently concerned about claims that one of Tharpe’s jurors was racist and sentenced Tharpe to death because he was African-American. Three justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — dissented.

The high court will now decide whether to hear Tharpe’s appeal, and, if it doesn’t, the court said the stay of execution shall terminate automatically. But that will not happen tonight.

Tharpe’s lawyers were overjoyed with the decision. “We’re gratified the court understands this case merits thoughtful consideration outside the press of an execution warrant,” said Brian Kammer, one of Tharpe’s attorneys. “We are extremely thankful that the court has seen fit to consider Mr. Tharpe's claim of juror racial bias in regular order."

Prior related post:

September 26, 2017 at 11:35 PM | Permalink


another lawless stay

Posted by: federalist | Sep 27, 2017 6:52:08 AM

The hyper-proceduralism of the death penalty for lawyer employment is from the top. If lawyer employment is the goal, it is a successful system.

Posted by: David Behar | Sep 27, 2017 9:40:13 AM

Regardless of the merits, I have come to the conclusion that it look terrible for the court to issue these last minute reprieves. He was convicted 27 years ago! If the issues were so meritable then why could they not have been looked at by SCOTUS long before? @David thinks the system is rent-seeking but to me it seems designed more to heighten the drama and drive media profits.

I make no opinion here about whether he deserves state execution but I the system as it is, reeks.

Posted by: Daniel | Sep 27, 2017 10:00:21 AM

Because hyper-proceduralism is really make work for lawyers, it is a form of theft of tax payer money. It returns nothing of substance nor of value to the taxpayer. There is no controversy about the guilt of the appellant.

The Justices of the Supreme Court should be impeached for suborning tax fraud. The dissenters should also be impeached because they failed to stop their accomplices or to report them to the Justice Department for investigation of stealing tax money. The recordings of their deliberations also are proof of their conspiracy, a separate crime to the predicate crime of stealing tax money.

Posted by: David Behar | Sep 27, 2017 10:01:42 AM

I'm sure I don't totally come from this at the same angle as Daniel, but I too find it problematic on a basic level that these appeals last decades. Justices Stevens and Breyer have been on the case since the 1990s, while other justices come from it on the other end. Breyer, e.g., has discussed how the reasons why these things go on so long result in a mixture of reasons involving various players.

On the specific racist juror claim, a recent opinion involving allegedly racist jurors affects the strength of the claim itself. So, on some level, I can see why something that in theory could have been brought up years ago has special force now. I say this without knowing about fact-finding that often brings to light, especially with additional resources of well-financed appellate representation etc., stuff years later.

Posted by: Joe | Sep 27, 2017 11:41:54 AM

I'll state this freestanding: I understand the attempt to limit appeals and reduce overall the time to do that. It on some level is sound policy. But, the devil is in the details. Years ago, e.g., I read a habeas lawyer discuss how AEDPA ironically extends appeals in various cases. And, there is a special concern here about the unrevocable wrongful state ending of life. Not having the death penalty would help there in my book.

Posted by: Joe | Sep 27, 2017 11:46:42 AM

Daniel. Viewing this decision from the personal interest of a Justice, they make no money personally. Outside of leadership duties to the criminal cult interest in rent, they do not profit from this decision. Nor do they care about drama, nor about getting their names in the paper. They do not even like that. Getting your name in the paper is always nasty.

Their interest lies in the appearance of false piety. They do not want to be called racist, and want to be above that criticism by bending over backwards, and to the extreme. You may use your term of, virtue signaling. Your theory is the single best explanation for this irrational decision. They are trying to protect the reputation of the Court, by using this frivolous motion as an excuse to show, not racist.

Take home message. Always use the race card at the Supreme Court. It works.

Posted by: David Behar | Sep 27, 2017 12:30:28 PM

"L'll state this freestanding: I understand the attempt to limit appeals and reduce overall the time to do that."

That is not my concern. My concern is a system that takes 27 years to figure out the course of justice on anything is seriously broken, a point that Dickens hammers at in his novel Bleak House. You are concerned about protecting life--fine--but we launch wars and and kill hundreds of thousands in the span of a few years. Does this imply that appeals should be rushed? Define rushed. Because if you are going to tell me with a straight face that death row appeals can't be finalized in ten years then once again the system is broken.

It was King who said that justice delayed is justice denied. That cuts both ways. 27 years fails a credulity test. I may be weak and sometimes foolish but damn I am not that weak and that foolish as to believe 27 years is a feature of a system working correctly.

Posted by: Daniel | Sep 27, 2017 12:38:20 PM

The system is corrupt.

Posted by: LC in Texas | Sep 27, 2017 1:00:32 PM

The portion quoted is my respect for the attempt to limit appeals.

I'm not sure where the disagreement is there. You suggest we should be able to finalize appeals in a decade. Okay. So, that would require some streamlining. But, that might require making sure those ten years are better spent. So, details/devils.

I can tell you with a straight face that sometimes new evidence comes up after ten years and so on, but figure if all the parties wished to do so, a decade can be enough time. But, that tends not to be the case. For instance, CA and the feds are in no rush from as far as I can tell. Other states repeatedly have problems that slow things down.

I am not just concerned with process, sure. I overall oppose the death penalty. But, to the degree of streamlining appeals -- as long as they are open-ended, incentives will be in place to draw things out, including leaving open new avenues of appeals as new law develops what happened here in respect to racist jurors -- I think it helps. Since there is a special concern about ending when you end a life. Many do with a straight face worry even after 10 years. Including those who support the death penalty.

Posted by: Joe | Sep 27, 2017 1:12:13 PM

Under AEDPA, everything is supposed to be brought up in the first petition and the most meritorious claims do tend to be brought up in the first petition. From experience, once the U.S. Supreme Court denies cert on the first habeas petition, the case tends to go into hibernation until an execution date is set. At that point, counsel for the accused tend to raise very claim that they can think of in the -- most often unsuccessful -- hope that one of the claims will get them a stay to further pursue the merits of that claim.

In this case, the recent decision altering the rules for impeaching verdicts (technically not yet held to be retroactive) might permit a second habeas petition and a late filing. So the fact that this claim has only been viable for seven months might explain why this claim is being raised at this point in time.

Posted by: tmm | Sep 27, 2017 1:13:55 PM

“A small and capricious selection of offenders have been put to death.”

Posted by: Claudio Giusti | Sep 27, 2017 1:50:49 PM

AEDPA limits the discretion of federal judges but especially early on it was unclear what exactly the limits were. Debate over the limits leading to more litigation was what the specific lawyer I referenced talked about. This was probably around ten years ago. Things might be somewhat different now.

Posted by: Joe | Sep 27, 2017 1:55:58 PM

Claudio. If one in ten serious crimes results in an arrest, that is also a "small and capricious" fraction that is arrested. So, by your logic, let's end arresting criminals.

Posted by: David Behar | Sep 28, 2017 9:19:22 AM

Poor little DB ... it's a quotation about capital punishment ..

Posted by: Claudio Giusti | Sep 28, 2017 2:11:14 PM

Hi, Claudio. Only 1 in 100 speeding violations results in a traffic ticket. That is a very small and capricious enforcement of the traffic laws. These laws actually save many lives, far more than the death penalty. Should we end traffic tickets? I think so, by your logic.

In America, Ramsey Clark is considered to be a notorious traitor, a supporter of the terror activities of Iran, against our nation, and a rabid, foam at the mouth anti-Semite. He joined the Dream Team to defend Saddam Hussein at his trial for crimes against humanity. Saddam killed a lot of Arabs, like a million, far more than Israel ever has in it history. Then he defended Milosevic at his trial for crimes against humanity, ethnic cleansing, and mass murder.

Ramsey Clark, not a good authority to quote to Americans. He defends people who kill people in the hundreds of thousands at a time. A little hypocritical, don't you think?

Posted by: David Behar | Sep 28, 2017 4:12:00 PM

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