Wading again into the murky area of how and when juror racial prejudice can upset a criminal conviction, the U.S. Supreme Court temporarily halted the scheduled execution of a Georgia inmate.

The move came in September in order to hear the inmate’s appeal of a lower federal court’s decisions that evidence of a juror’s racially biased statements did not make his sentence unconstitutional. Georgia’s highest court had earlier rejected a similar challenge, and the state board of pardons and parole—the state’s only avenue for clemency appeals—declined to change the inmate’s death sentence to life without parole.

The high court’s decision came almost literally at the eleventh hour of the night the inmate was scheduled to be executed by lethal injection; the 7 p.m. execution was delayed for almost four hours by legal wrangling and communications with the Supreme Court, which issued the stay to allow a still-to-be-scheduled hearing on the inmate’s appeal. The decision was not unanimous: three justices (Thomas, Alito and Gorsuch) dissented.

The African-American inmate, Keith Leroy Tharpe, has been incarcerated for about 27 years. He was convicted early in 1991 of the shotgun murder of his sister-in-law, who had been driving Tharpe’s estranged wife after she left him, taking their four daughters. In Tharpe v. Sellers, the Supreme Court will consider whether Tharpe’s trial was impermissibly tainted by racial bias from at least one juror at his trial.

The evidence of juror bias comes from an interview held seven years after the conviction with a white juror, Barney Gattie, in which he used racial slurs and at one point observed that he wondered whether blacks “had souls.” The now-deceased Gattie soon backtracked, after talking with lawyers for the state, claiming he had been drinking before the interview, and did not understand why he was being questioned, and alleging the affidavit he signed “misconstrued” his statements.

About a year ago, the high court heard another capital punishment case (Buck v. Davis), this one from Texas, dealing with racial prejudice. In that decision, handed down this February, the court ruled the inmate’s death penalty sentence was infected with racial prejudice. At the trial, an expert witness testified black people are more violent than others, when the likelihood of future violence was required to invoke capital punishment. Justices Alito and Thomas dissented from the majority opinion delivered by Chief Justice Roberts. Before re-trial, Buck’s sentence was reduced to life in prison.

The next month, in Peña-Rodriguez v. Colorado, the high court split 5-3 in ordering a Colorado court to reconsider whether a juror’s anti-Hispanic remarks justified overturning a sex-crime conviction and requiring a new trial. The decision did not give much concrete guidance on how the reviewing state court should go about determining how great an impact the biased remarks had—though it did say more would be needed than an “offhand comment” of racial prejudice or animus—or how much unfairness would need to be shown to merit a new trial, beyond saying it would have to be shown racial bias was a “significant motivating factor” of the conviction.

Unlike the case in Tharpe, however, the juror’s remarks came during jury deliberations, not years afterward. Three justices dissented (Chief Justice Roberts and Justices Alito and Thomas) in the Colorado case.

About Christopher Zoukis
Christopher Zoukis is an outspoken prisoner rights and correctional education advocate who is incarcerated at FCI Petersburg Medium in Virginia. He is an award-winning writer whose work has been published widely in major publications such as The Huffington Post, Prison Legal News, New York Daily News and various other print and online publications. Learn more about Christopher Zoukis at christopherzoukis.com and prisoneducation.com.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).