Supreme Court Refuses to Review Juror’s Racial Bias in Death Penalty Case


On Monday, the United States Supreme Court declined to review Keith Tharpe’s claim that a juror’s racism invalidates his death sentence, despite the fact that one justice stated that the case is “an arresting demonstration that racism can and does seep into the jury system.”

Keith Tharpe, who is Black, was convicted of killing his estranged wife’s sister, Jacqueline Freeman, who was also Black, and the jury voted to sentence him to death. Years later, a white juror, Barney Gattie, signed an affidavit saying:

In my experience I have observed that there are two types of Black people: 1. Black folks and 2. Niggers . . . . Because I knew the victim and her husband’s family and knew them all to be good Black folks, I felt Tharpe, who wasn’t in the ‘good’ Black folks category in my book, should get the electric chair for what he did.

Mr. Gattie went on to state that, “[a]fter studying the Bible, I have wondered if Black people even have souls.”

Mr. Tharpe argued that this juror’s racial bias invalidated his death sentence, but the Georgia state courts and lower federal courts all refused to address the claim on the merits because it was not raised earlier and the facts in the case did not establish that Mr. Gattie’s presence on the jury prejudiced Mr. Tharpe.

In January 2018, the Supreme Court ordered the United States Court of Appeal for the Eleventh Circuit to reconsider its rejection of Mr. Tharpe’s claim, explaining that Mr. Tharpe had “present[ed] a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.”

On remand, the Court of Appeals again refused to address the merits of Mr. Tharpe’s racial bias claim for procedural reasons, and Mr. Tharpe sought review in the Supreme Court.

The Court denied certiorari. Justice Sonia Sotomayor concurred in the denial but wrote a separate opinion urging that “we should not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.”

Observing that Gattie’s affidavit is “truly striking evidence of juror bias,” Justice Sotomayor wrote that the juror’s racist sentiments “suggest an appalling risk that racial bias swayed Tharpe’s sentencing.” She continued:

The danger of race determining any criminal punishment is intolerable and endangers public confidence in the law. That risk is especially grave here, where it may have yielded a punishment that is unique in its “complete finality.” When Tharpe went on trial for his crimes, the Constitution promised him the “fundamental ‘protection of life and liberty against race or color prejudice.'” There is strong evidence that this promise went unfulfilled.

The juror’s sentiments in this case, Justice Sotomayor wrote, “amount to an arresting demonstration that racism can and does seep into the jury system.”

The Court recognized in its 2017 decision in Pena-Rodriguez v. Colorado that “racial bias in the justice system must be addressed.” Justice Sotomayor quotes that decision in affirming that “racial bias is ‘a familiar and recurring evil” and that the “work of ‘purg[ing] racial prejudice from the administration of justice’ is far from done.”