The US Supreme Court issued an unsigned opinion on January 8, 2018, regarding the merits of appealing a case based on the racial bias of a juror. The case in question, Tharpe v. Sellers, was decided back in 1991, and the Supreme Court’s opinion raises the important possibility of using evidence of juror bias to later nullify a verdict on appeal.
Seven years after Keith Tharpe was found guilty of killing his sister-in-law, his attorneys interviewed juror Barney Gattie in the interest of uncovering racial bias. Gattie (a white man) told them in a signed statement: “there are two types of black people: 1. Black folks and 2. N——-s.”
Despite Gattie’s use of such a derogatory term, the District Court denied Tharpe’s appeal on grounds of racial bias. The court determined that Tharpe failed to present any clear and convincing evidence that contradicted the state’s original claim that Gattie’s racial bias did not impact his decision. On a subsequent appeal in the Eleventh Circuit, the court also denied Tharpe’s certificate of appealability application on the grounds that “jurists of reason could not dispute that the District Court’s procedural ruling was correct.”
But the Supreme Court, in an unsigned 6-3 opinion, said Tharpe deserved another chance in court, writing:
But on the unusual facts of this case, the Court of Appeal’s review should not have rested on the ground that it was indisputable among reasonable jurists that Gattie’s service on the jury did not prejudice Tharpe.
The Supreme Court’s decision has moved Tharpe’s case back to the Eleventh Circuit Court of Appeals. Back in 1991, Tharpe was sentenced to death for three charges in the murder of his sister-in-law, Jaquelin Freeman, and the kidnapping and rape of his estranged wife. The Supreme Court halted Tharpe’s execution in the fall when it decided to take the case.
In an opinion issued in March 2017 on a separate case, SCOTUS ruled that courts must make an exception to the usual rule that jury deliberations are secret when evidence emerges that these closed deliberations were tainted. Unfortunately the legal reasoning of the March opinion in Pena- Rodriguez v. Colorado, although apropos, does not retroactively apply to former verdicts. However, in Tharpe’s case, new evidence in the form of Gattie’s affidavit has opened the doors for an appeal on the grounds that the juror’s bias may have prejudiced the case.
Justices Clarence Thomas, Samuel Alito, and Trump-appointed Neil Gorsuch signed off on a dissenting opinion, protesting the unnecessary delay this ruling will cause in getting justice for the murder victim, Freeman, who they note is also black. The dissenting opinion makes note that the jury took only two hours to return a verdict of a unanimous sentence of death. While Justice Thomas accused his colleagues of “ceremonial hand-wringing,” the majority’s ruling is an important statement: justice is not served without proper due process and the equal protection of the laws per our nation’s Fourteenth Amendment.
An unsound verdict, no matter how many years have passed, should not sit well with Georgians or the rest of our nation. The Supreme Court acknowledges that new and “unusual” facts in this case warrant fresh consideration of an appeal. A jury tainted by racial bias is not a surprising occurrence in a nation with a complex racial history. Revisiting the appealability of a problematic verdict is a promising move on the part of the Supreme Court justices.