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January 8, 2018

SCOTUS back to work with remarkable split habeas ruling giving capital defendant another (long-shot?) chance to obtain relief

At the end of this long Supreme Court order list, comprised primarily of a long list of cases in which certiorari has been denied, comes a fascinating little per curiam opinion in Tharpe v. Seller, No. 17–6075 (S. Ct. jan 8, 2018) (available here).  The ruling is a rare summary SCOTUS win for a capital habeas defendant, and the short majority opinion provides only a small glimpse into the case (though a clear view of what motivated a majority of Justices to want to intervene).  Here are excerpts from the opinion (with cites removed):

Petitioner Keith Tharpe moved to reopen his federal habeas corpus proceedings regarding his claim that the Georgia jury that convicted him of murder included a white juror, Barney Gattie, who was biased against Tharpe because he is black. See Fed. Rule Civ. Proc. 60(b)(6). The District Court denied the motion on the ground that, among other things, Tharpe’s claim was procedurally defaulted in state court. The District Court also noted that Tharpe could not overcome that procedural default because he had failed to produce any clear and convincing evidence contradicting the state court’s determination that Gattie’s presence on the jury did not prejudice him....

Our review of the record compels a different conclusion.  The state court’s prejudice determination rested on its finding that Gattie’s vote to impose the death penalty was not based on Tharpe’s race.  And that factual determination is binding on federal courts, including this Court, in the absence of clear and convincing evidence to the contrary.  Here, however, Tharpe produced a sworn affidavit, signed by Gattie, indicating Gattie’s view that “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; that “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t my reason”; and that, “[a]fter studying the Bible, I have wondered if black people even have souls.”  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.  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.

Justice Thomas, joined by Justices Alito and Gorsuch, authored a lengthy dissent to the majority's short ruling. It starts and ends this way:

If bad facts make bad law, then “unusual facts” inspire unusual decisions.  Ante, at 3.  In its brief per curiam opinion, the Court misreads a lower court’s opinion to find an error that is not there, and then refuses to entertain alternative grounds for affirmance. The Court does this to accomplish little more than a do-over in the Court of Appeals: As it concedes, petitioner Keith Tharpe faces a “high bar” on remand to obtain even a certificate of appealability (COA).  Ante, at 2.

One might wonder why the Court engages in this pointless exercise.  The only possible explanation is its concern with the “unusual facts” of this case, specifically a juror affidavit that expresses racist opinions about blacks.  The opinions in the affidavit are certainly odious.  But their odiousness does not excuse us from doing our job correctly, or allow us to pretend that the lower courts have not done theirs.

The responsibility of courts is to decide cases, both usual and unusual, by neutrally applying the law.  The law reflects society’s considered judgments about the balance of competing interests, and we must respect those judgments.  In bending the rules here to show its concern for a black capital inmate, the Court must think it is showing its concern for racial justice.  It is not.  Its summary vacatur will not stop Tharpe’s execution or erase the “unusual fac[t]” of the affidavit.  It will only delay justice for Jaquelin Freeman, who was also black, who is ignored by the majority, and who was murdered by Tharpe 27 years ago. I respectfully dissent....

Today’s decision can be explained only by the “unusual fac[t]” of Gattie’s first affidavit.  Ibid.  The Court must be disturbed by the racist rhetoric in that affidavit, and must want to do something about it.  But the Court’s decision is no profile in moral courage.  By remanding this case to the Court of Appeals for a useless do-over, the Court is not doing Tharpe any favors.  And its unusual disposition of his case callously delays justice for Jaquelin Freeman, the black woman who was brutally murdered by Tharpe 27 years ago. Because this Court should not be in the business of ceremonial handwringing, I respectfully dissent.

This is quite the way to start Supreme Court activity in 2018, a year that seems certain to have at least the usual share of SCOTUS fireworks. (I am also inspired by Justice Thomas's closing thought to imagine a new tagline for this blog: "Engaged in ceremonial handwringing since 2004.")

January 8, 2018 at 10:13 AM | Permalink


"By remanding this case to the Court of Appeals for a useless do-over, the Court is not doing Tharpe any favors."

Other than, e.g., delaying his execution in the process or something.

One notable thing here is that SCOTUS review is -- as CJ Taft said as I recall -- on some basic level not about the person who already had two shots at least to have a case reviewed. It is about settling law and policy for the nation. That is a basic reason six justices, including Chief Justice Roberts, reached out to do this.

The "ceremonial handwringing" is an extra effort to show even a chance of racial discrimination is too much. It is not "callous" to decide this even if there is some disagreement on the merits. Of course, as seen on this blog, ymmv.

The dissent speaks of the victim being "ignored." Unclear. This line can be provided in each case involving a victim. The Supreme Court determines let's say some Sixth Amendment provision is violated. This requires re-litigating a case, delaying punishment. The dissent disagrees with the argument. Do we need another claim the victim is being ignored? Each criminal case has victims. Justices are ignoring that, including when Thomas/Alito/Gorsuch decide the defendant's claim is correct.

Posted by: Joe | Jan 8, 2018 10:53:55 AM

"Justices are ignoring that, including when Thomas/Alito/Gorsuch decide the defendant's claim is correct."

Are NOT ignoring that. New year, same typos.

Anyways, I don't know what the victims feel about this result, but after 27 years, the cry of "ceremonial hand-wringing" can apply here too. Me personally, I would not think too much about this result -- the person wasn't executed for nearly three decades. Delaying it a bit further would not be for me much of a concern for me all things factored in, including the issue of racial equality that is being honored.

My loved one is still dead and I waited this long. I would realize how bad the affidavit looks and would be upset with the moron involved. But, I would actually understand this result. I know how the legal process works, including how courts practice extra care not to look like they are being racist and such. But, that's just me. Thomas and others had a different view. The whole thing is a tad subjective.

Posted by: Joe | Jan 8, 2018 11:03:36 AM


Anyways, reference is made to the U.S. admitting error in another case and GVR granted. Jimmie White v. U.S. Looking at SCOTUSBlog, appears to be a criminal case.

Posted by: Joe | Jan 8, 2018 11:12:33 AM

Long-shot, indeed. Mr. Tharpe finds himself in the 11th Cir. after all.

My take is that the p/c op. was so narrow precisely b/c Roberts was in the majority.

Posted by: John | Jan 8, 2018 11:55:14 AM

The competing opinions in this case (and earlier cases on when a COA should issue) remind me a little of the old parable of the six sight-impaired persons and the elephant. Everybody is describing something different and nobody can give an accurate picture of the ultimate issue -- how much merit is enough to warrant a COA. It's probably aggravated in this case because -- as the dissent noted -- the lower court gave several reasons for denying a COA and the Supreme Court only set one of those reasons aside, remanding for the Eleventh Circuit to reconsider whether to grant a COA.

While my expectation is that Tharpe will be a "good for this one case only" precedent, the disagreement in the opinions could make for interesting arguments in other cases to other courts. Most circuits do not grant a COA merely because the inmate can point to some evidence in the record which could have permitted the state courts to reach the opposite result. Instead, applying the plain language of 2254, they hold that the claim is not debatable because the federal courts have to defer to the state courts factual findings unless clearly erroneous. Here, the inmate had a good solid piece of evidence that would have supported his claim, but the state courts found the conflicting evidence more credible. To the extent that this ruling requires COAs to be granted if a defendant had good evidence supporting his claim in state court, there will be a lot more habeas appeals in the various circuit -- although very few inmates will actually receive relief from these additional appeals.

Posted by: tmm | Jan 8, 2018 2:32:00 PM

Face it. The majority opinion is anti-majoritarian. The dissent focuses on the perception of the victim/extended family. Many victims want retribution. Heck, many victims need retribution as part of the "healing process." In my experience, a majority of victims do not "turn the other cheek" or accept their lot. Which, of course, is understandable -- family protects family, tribe protect tribe.
The majority focuses on the perception of legitimacy of the judiciary by the extended citizenry. In the US we live in a republic, not a democracy. In a republic, it is more divisive to give into the majority -- individual retribution -- then it is to support broad unifying principles that do not necessarily elevate individual perceptions of justice. The majority of SCOTUS made a value judgment -- elevate the principal that the judiciary guards against racism in a single case even if it frustrates individual needs for retribution and closure. I like living in a country where the majority isn't always right. It ain't ceremonial hand-wringing if the citizenry are reminded the Constitution/rule-of-law is what makes this country great and, hopefully free of dictators.

Posted by: ? | Jan 8, 2018 9:31:15 PM

Prof. Berman. Joe is hogging the Comment Section. Tell him to limit his meaningless, weasel, drivel rants to 1 or 2 a day.

Posted by: David Behar | Jan 9, 2018 3:46:35 AM

"The only possible explanation is its concern with the “unusual facts” of this case, specifically a juror affidavit that expresses racist opinions about blacks."

Gorsuch is a Harvard Law School radicalized lawyer. Thus he is too stupid to understand the real explanation. There is no question of factual guilt in the case. The decision is to generate jobs for government make work, worthless government lawyer workers.

Rent seeking should be criminalized in statute. The Supreme Court Justices should have their immunity cancelled, arrested, and sent to federal prison for a decision that is to steal tax money, and to return nothing of any value.

Posted by: David Behar | Jan 9, 2018 5:03:22 AM

Thomas got it right---are we going to toss the murder verdict? The answer is (or should be) anyway: no. So the DP stands as well.

I can see capital defense attorneys now digging through the lives of jurors and shaking them down with threats of publicity. That's what the case will do.

Posted by: federalist | Jan 9, 2018 8:03:33 AM

Federalist, speaking from experience and as shown by the facts of this case, defense counsel is already doing so. Even before Pena-Rodriguez, most states permitted defendants (and civil litigants) to argue that jurors intentionally failed to disclose certain information during voir dire. (In my state, we have been averaging around 4-5 appellate cases per year in which juror non-disclosure is one of the claims.) While many states are strict about what jurors can say at a later hearing about actual deliberations, there are often exceptions for certain types of misconduct (e.g. bailiff coming into jury room, conversations back at the hotel or during recesses prior to the start of deliberation). In capital cases, at some stage of the review process, even before Pena-Rodriguez and this decision, it was a given that some attorney for the defendant would try to talk to the former jurors to see if they would say anything that might open the door to a claim of nondisclosure or some type of misconduct outside deliberations (or ineffective assistance if the trial attorneys failed to do this during the limited period for investigating and filing a motion for new trial).

Posted by: tmm | Jan 9, 2018 2:04:33 PM

TMM. Assume a member of the jury had to be asked to remove his KKK hood and robe when entering the court. If the defendant was factually guilty, why should the views of the juror be constitutionally relevant? What right was violated if the defendant is factually guilty?

Posted by: David Behar | Jan 9, 2018 4:17:16 PM

A wonderfully sober question, David, that can be simply answered by saying that the decision to recommend a death sentence is always a discretionary one for jurors and so there is reason to fear you KKK member advocate for death based on the unconstitutional factor of race rather than based on proper factors.

If only issue is jury determination of guilt, it would still be unconstitutional (a violation of the Equal Protection Clause) if a juror were to decide in guilt based on the defendant's race rather than on the evidence. Your suggestion seems to be that such a violation ought to be found harmless if there is clear evidence that the defendant is guilty. But courts are generally inclined to call race-based case-processing concerns structural errors not subject to harmless error analysis. See, e.g., Justice Kennedy for the Court in a ruling last year, Weaver v. Mass:

"the Court’s precedents [provide] that certain errors are deemed structural and require reversal because they cause fundamental unfairness, either to the defendant in the specific case or by pervasive undermining of the systemic requirements of a fair and open judicial process. See Murray, A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791, 1813, 1822 (2017) (noting that the “eclectic normative objectives of criminal procedure” go beyond protecting a defendant from erroneous conviction and include ensuring “ ‘that the administration of justice should reasonably appear to be disinterested’ ” (quoting Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847 –870 (1988)))."

Posted by: Doug B | Jan 9, 2018 9:17:14 PM

Empirically, the sole structural error, the sole discrimination was to find the undervaluation of black murder victims. Kill a white, get the death penalty, whether the defendant is black or white. Kill a black, get a lighter sentence, whether the defendant is black or white. This effect was likely true in the days of facial (statutory) discrimination. It is the sole empirically validated and ubiquitous discrimination. It is the most disturbing form of discrimination. It may be a factor in the 5 fold higher risk of being murdered if black. In the days of statutory discrimination, lynch mobs killing black males had immunity by prosecutorial discretion. There were hundreds of witnesses at some of them.

I deem the undervaluation of black murder victims and Justice Kennedy's views to be in that tradition, with greater cover of piety, but greater lethality. This discrimination is not just procedural, but is also deadly to real people, especially, young black males. So Justice Kennedy promotes the false piety of the legal system, fixes appearances of procedure, and black young males die. The KKK lynched 5000 black males in 100 years. The excess of murder of young black males is around 5000 a year, today. The modern and pious criminal justice system has been 100 times more effective at killing young black males than the KKK.

Posted by: David Behar | Jan 10, 2018 5:50:08 AM

Would an algorithm, written, updated yearly, and owned by the legislature, solve the problem of "‘that the administration of justice should reasonably appear to be disinterested’ ”? The technology exists today for such.

Let me have 2 hours with Justice Kennedy's personal computers. I can find dozens of inappropriate, and biased remarks disqualifying him from serving on the jury. I can find criminal acts, sending him to prison and justifying heavy fines. That is true of all of us. No one can withstand forensic review of personal computers, without deserving decades in federal prison. Should all prospective jurors be qualified only after such a review?

Posted by: David Behar | Jan 10, 2018 6:07:11 AM

David, for the comments I made, it doesn't matter if that bias would be harmless error. I was replying to Federalist's comment that these opinions will open the door to defense attorneys pestering jurors afterward -- noting that defense attorneys are already doing that.

More importantly, your question assumes that it is clear that the defendant is factually guilty. I deal regularly with claims of ineffective assistance of counsel. In every one of them, the inmate's attorney makes a creative argument about why the evidence at the original trial was sufficiently unclear that this one piece of evidence might have made a difference. While the test for prejudice -- structural vs. presumed prejudice vs. harmless error analysis vs. Strickland prejudice -- matters to the ultimate result after the hearing on the claim, it really has little impact on whether the inmate's counsel will raise the claim, particularly in a capital case.

Posted by: tmm | Jan 10, 2018 10:55:37 AM

When Justice O'Connor used the phrase, a lawyer's performance meeting a standard of reasonableness, what does it mean? Is the professional standard of due car, i.e. the competent lawyer? Is it the Dream Team standard, because it is a capital case? Is it, the every conceivable argument standard?

I am not in any way trying to provoke you. If a judge has declared inadequacy of counsel, is there cause for a malpractice claim? It would be a per se tort, and skip all the obstacle to finding malpractice by a lawyer. Does such a decision induce a duty in both the judge and in the prosecutor to report the substandard performance of defense counsel to the Disciplinary Counsel? Does absolute trial immunity preclude such a claim?

I am sure we share the value of not convicting an innocent defendant. Wouldn't greater liability improve the performance of defense attorneys across the country, benefiting defendants and the rule of law?

Posted by: David Behar | Jan 10, 2018 11:45:00 AM

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