Source: National Law Journal

Keith Tharpe sits on Georgia’s death row, at least in part, because he is black. One of the jurors in Tharpe’s case signed a stunning affidavit in which he asserted that there are two types of Black people—“good black folks” and “ni**ers.” The juror, Bernard Gattie, claimed Tharpe fell into the second category, which influenced Gattie in voting for a death sentence. Underscoring his utter lack of respect for Tharpe’s humanity, Gattie stated: “After studying the Bible, I have wondered if Black people even have souls.”

As Chief Justice John Roberts Jr. recently observed in another capital case, a death sentence infected with such racism represents “a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are.” (Buck v. Davis).

And yet, for more than 20 years, no state or federal court has considered the merits of Tharpe’s extraordinary claim. Instead, the lower courts have imposed a variety of procedural roadblocks to deny relief.

In the fall of 2017, on the evening Tharpe was scheduled to die, the U.S. Supreme Court stayed the execution in order to consider whether the lower federal courts had erred in refusing to hear his claim. A few months later, in Tharpe v. Sellers, the High Court vacated the lower court judgment by a 6-3 vote, observing that “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.” The Court ordered the U.S. Court of Appeals for the Eleventh Circuit to reconsider its decision that Tharpe’s racial bias claim did not deserve to be heard on the merits.

The Eleventh Circuit, however, again denied Tharpe the right to have his claim heard, this time on the basis of inherently inconsistent grounds: first, that Tharpe should have raised his claim sooner, and second, that a significant new Supreme Court decision (Peña-Rodriguez v. Colorado) could not be applied because it was decided long after Tharpe had been convicted and sentenced to death.

If our criminal justice system functioned as it should, the Eleventh Circuit would have addressed the merits of Tharpe’s claim that he was unconstitutionally sentenced to death because he is black. In reviewing a prisoner’s death sentence in habeas corpus proceedings, the federal courts are charged with administering the rules with flexibility to correct miscarriages of justice. In this instance, Tharpe could not have raised his claim until it was investigated and discovered after trial. Because he raised the claim promptly after its discovery, it is unfair for the courts to punish him for not filing it sooner.

And Peña-Rodriguez is properly applied to Tharpe’s case because it imposed no new obligation on the states; it simply created a mechanism to enforce the well-established principle that racial prejudice should have no role in a juror’s vote for death. Not permitting Tharpe to rely on Peña-Rodriguez would unfairly deny Tharpe his basic right to be sentenced free from racial discrimination.

More fundamentally, the Eleventh Circuit’s reliance on procedural barriers to avoid confronting the shocking facts of this case is inconsistent with the Supreme Court’s repeated recognition that “[d]iscrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice.” When a person has presented compelling evidence that he was sentenced to death because of his race, no judge-made procedural obstacles should preclude review of his claim on the merits. The court’s failure to address this kind of overt racial bias in sentencing harms not only the defendant sentenced to die but undermines public confidence in the justice system.

As the U.S. Supreme Court explained in Peña-Rodriguez, “[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.” That observation applies with particular force in Tharpe’s death penalty case.

Tharpe’s case is similar to a capital case the Supreme Court decided in 2017, Buck v. Davis, where the court held that the defendant’s claim of racial bias should be reached despite procedural obstacles that would have otherwise barred review. There, an “expert” had testified before the sentencing jury that Buck, because he was black, posed a greater risk of committing violent acts in the future. The introduction of this powerful stereotype created the real possibility that Buck was sentenced to death because of his race. In a 6-2 opinion, the Court held that these “extraordinary circumstances” justified overcoming procedural rules that had blocked Buck’s claim, and the Court granted relief on the merits.

The racism at issue in Tharpe’s case is just as odious as the discrimination that contaminated Buck’s case. The circumstances are just as extraordinary. The result in Buck’s case—the opportunity to have his appeal heard on the merits—should also be afforded to Tharpe. The Eighth Amendment required Gattie to consider Tharpe’s humanity and the possibility that there were mitigating factors that called for a life sentence. But Gattie’s words reveal that he refused to recognize Tharpe’s humanity, reducing Tharpe to a racial epithet and questioning whether any black person had a soul. Gattie, therefore, could not impartially perform his duty as a juror.

Tharpe’s case is once again pending before the Supreme Court with a petition seeking review of the Eleventh Circuit’s recent ruling. The petition is the one thing standing between Tharpe and execution. In keeping with its duty to eradicate the pernicious effects of racial discrimination in the judicial system, the U.S. Supreme Court must, once again, intervene in Tharpe’s case and prevent the State of Georgia from executing Tharpe before any court has considered the compelling evidence that Tharpe was sentenced to death, at least in part, because he is black.  Such intervention is critical to Tharpe, to the enforcement of our core constitutional principles, and to our collective faith in the fairness of our justice system.

Read LDF’s amicus brief on behalf of Mr. Tharpe here.

Samuel Spital is the Director of Litigation at the NAACP Legal Defense & Educational Fund, Inc.

Reprinted with permission from the National Law Journal. © 2019 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.