by Lauren Sudeall Lucas, Associate Professor, Georgia State University College of Law
In imposing the most severe of sentences—the death penalty—our legal system expects and requires jurors to be fair and impartial.That requires them to refrain from making decisions based on race. What then would we make of a capital juror who questions whether black people “have souls” and suggested that a black defendant wasn’t “in the ‘good’ black folks category” but instead told an attorney in a sworn affidavit that the defendant was a “ni**er”? Allowing that juror to decide whether a black defendant should be sentenced to death would directly contradict the principles on which our legal system is based, and yet that is precisely what happened in the case of Keith Tharpe, who is scheduled for execution in Georgia on September 26.
Thanks to camera phones and police cameras, we live in an age where the public can see and react to some of the racial bias that infects our criminal justice system. Unfortunately, that bias can also extend into the jury room, where there is no camera, and thus no means to identify or measure the biases harbored by those entrusted with making such a serious decision.
In Mr. Tharpe’s case, however, there can be no doubt that such bias was present in the jury room. One of the jurors who heard his case and contributed to the jury’s decision to issue a death sentence was a white man named Barney Gattie. Mr. Gattie held racist beliefs against African-Americans and against Mr. Tharpe in particular, even though he testified he had “no preconceived notions about the case” before being seated as a juror. Regardless of what he may have believed or not believed about the case, he had very clear feelings about African-Americans and their relative worth.
After the conviction, Mr. Tharpe’s attorneys took a sworn statement from Mr. Gattie, which he edited and signed. In that statement, Mr. Gattie explained that there are two kinds of black people: “black folks” and “ni**ers.” Mr. Gattie went on to explain that he voted for the death penalty in Mr. Tharpe’s case because the victim’s family were in the “nice black folks” category, which elevated their worthiness. “If they had been the type that Tharpe is,” he said, “then picking between life or death for Tharpe wouldn’t have mattered so much. My feeling is, what would be the difference?... I felt Tharpe, who wasn’t in the ‘good’ black folks category in my book, should get the electric chair.”
Mr. Gattie’s statement continued, “After studying the Bible, I have wondered if black people even have souls.”
Incredibly, when this juror’s views came to light, prosecutors refused to concede that Mr. Tharpe’s capital sentencing was tainted. Instead, they dug in, getting a new statement from Mr. Gattie intended to undermine the validity of his affidavit. Even in this effort, they were able only to get Mr. Gattie to say that he was drunk at the time of the affidavit. He neither denied that he said nor disavowed the racist statements contained therein.
Although the evidence of racial bias in Mr. Tharpe’s case is unequivocal, both state and federal courts have ruled that this evidence is inadmissible. They have refused to consider it on the grounds that such evidence cannot be used to “impeach” a jury verdict.
Recent rulings from the U.S. Supreme Court, however, suggest that when racial bias has clearly infected the proceedings, procedural rules like Georgia’s must take a backseat to a defendant’s right to a fair and impartial jury. In Buck v. Davis (2017), the Court set aside procedural arguments to hold that where expert testimony relying on racial stereotype results in a defendant being sentenced to death based in part on his race, the circumstances warrant extraordinary relief. In Pena-Rodriguez v. Colorado (2017)—more directly relevant to the case at hand—the Court found that if a juror holds racial animus against the defendant, it must be considered in order to protect our criminal justice system’s promise of a fair trial. Thus, as the Court held in Pena-Rodriguez, the court here cannot “disregard” such evidence, but instead must take a close look at Mr. Gattie’s statements and consider whether a new sentencing hearing is warranted in Mr. Tharpe’s case.
Lawyers for Mr. Tharpe, who also contend that Mr. Tharpe is intellectually disabled, are currently appealing the courts’ refusal to consider the racist views of Mr. Gattie and their possible impact on his sentence. That refusal casts a cruel irony on the phrase “justice is blind:” here, the courts’ willful blindness to clear evidence of racial bias undermines the very notion of justice.
There are many capital cases in which we may never know if race played a role. Mr. Tharpe’s case is not one of them. The juror, now deceased, willingly told Mr. Tharpe’s attorneys that he wanted to put him in the electric chair because he was a “ni**er.” We should listen to Mr. Gattie’s words and believe them. The death sentence that Mr. Gattie voted for has to be vacated; the integrity of our legal system requires nothing less.