Keith Tharpe's Scheduled Execution Tests Our Tolerance for Racial Bias in Executions

In 1991, a jury in Jones County, Georgia, sentenced Keith Tharpe, a Black man, to death for the murder of his sister-in-law. Seven years later, Tharpe's defense counsel met with a white juror from Tharpe's trial as part of their routine investigation of the case. The juror explained to the lawyers why he voted for Tharpe's death, and then reviewed, edited, and signed a sworn statement, which set out his views of race and Tharpe:

I have observed there are two types of Black people: 1. Black folks and 2. Niggers. For example, some of them who hang around our little store act up and carry on. I tell them, "nigger, you better straighten up or get out of here fast."

I felt Tharpe who wasn't in the "good" black folks category in my book, should get the electric chair for what he did. . . .

After studying the Bible, I have wondered if black people even have souls. Integration started in Genesis. I think they are wrong. For example, look at O.J. Simpson. That white woman wouldn't have been killed if she hadn't married that black man.

The defense lawyers filed the juror's signed statement in court the next day.

Only a unanimous jury can convict and impose a death sentence in Georgia, and the law has long recognized that misconduct by a single juror requires reversal. The juror's stunning admission of racially biased views, including his view of the defendant, should have led to a hearing and a new trial. Instead, Tharpe faces possible execution next Tuesday, September 26, 2017.

In what threatens to be a grave miscarriage of justice, no court has ever considered the testimony about this misconduct. The federal courts must act now under the law's constitutional promise of equality and fairness and reopen his case so that his claim of racial bias can finally be heard.

What should have happened in 1998 is that the then-elected prosecutor for the Ocmulgee District, Joseph Briley, and the Georgia Attorney General should have responded to the juror's affidavit by announcing they would not tolerate racial bias in capital sentencing and agreeing that Tharpe should get a new trial.

Instead, counsel from the Georgia Attorney General's office responded by trying to minimize the juror's statements and asking the court to ignore the bias. First, they went to see the juror the next day after reading his statements of racial bias and obtained a new statement. In this new statement, the juror did not deny what he said about Black people or Tharpe. Instead, he complained that the lawyers were not clear enough about their purpose in talking with him and that he had been drunk when he talked with the lawyers.

The state attorneys then came to court and argued that the racial bias of the juror should be irrelevant to Tharpe's death sentence because the law should not permit investigation into racial bias by jurors after the verdict. Unfortunately, this response was hardly surprising. Georgia's Attorney General's office had years of practice defending racially tainted capital cases from Mr. Briley's office.

How do we know that capital prosecutions in Briley's office were contaminated by racial discrimination? He put it in writing.

In 1978, Briley wrote an "infamous" handwritten memo instructing the clerk's office on how to reduce the number of Black people and women on juries without detection. In other words, he explained how to discriminate and get away with it. He also repeatedly removed qualified Blacks from jury service in violation of the constitutional prohibition of using race in jury selection. Although it is notoriously difficult to show purposeful discrimination in jury selection because of the wide deference afforded to prosecutors, courts found that Briley's actions in fact met the high burden of proof required.

During his 20-year tenure between 1974 and 1994, Briley tried 33 capital cases -- 24 of which were against Black defendants like Tharpe. In the cases with Black defendants, 90 percent of the jurors Briley removed from serving in these capital cases were Black.

In Tharpe's case, the state court ruled that the noxious statements by the juror were inadmissible because the law protects jury verdicts as unimpeachable. In other words, even where there is smoking-gun proof that one or more jurors used racially biased decision-making, courts will not reopen jury verdicts. The state court denied the claim on the wrong theory that jurors should not be permitted to testify about how their racial bias affected the verdict.

This question -- whether courts should revisit jury verdicts when presented with proof of racial bias by a juror in decision making -- was answered with a resounding yes earlier this year in the Supreme Court case, Pena-Rodriquez v. Colorado. In a 5-3 decision, the justices ruled that it "must become the heritage of our Nation to rise above the racial classifications that are so inconsistent with our commitment to the equal dignity of all persons."

Tharpe's appeals proceeded through state and federal courts without any court ever considering whether the juror's profoundly troubling remarks violated the Constitution. Even though Pena-Rodriguez makes clear that Tharpe should receive a hearing, halting his execution and reopening his federal case requires that he show extraordinary circumstances. The Supreme Court ruled in another case this year, Buck v. Davis, that the "noxious strain of racial prejudice" constituted extraordinary circumstances that required the reopening of federal habeas proceedings.

Halting Tharpe's execution today should be an easy call. Reopening his case and allowing a court to rule on the proof of racial taint by the juror in Tharpe's case is the only path forward commensurate with recognition of equal dignity of all. Keith Tharpe deserves a new trial before a jury of his peers. Otherwise, we will condone a criminal justice system that allows racial animus to influence matters of life and death.