Every Defendant Deserves a Trial Free of Race Discrimination

In September of 2017, Keith “Bo” Tharpe came within hours of execution; the Supreme Court granted a stay at the 11th hour. This week, the same Court announced that it would not be re-examining the 11th Circuit Court of Appeals’ decision to deny Mr. Tharpe the ability to appeal his death sentence. No state or federal court has yet to consider whether Mr. Tharpe’s death sentence is invalid due to one of his juror’s openly racist views

Mr. Tharpe, now 61, was convicted of murder and sentenced to death in Jones County, Georgia, in 1991. His trial — like so many others — was tainted by race discrimination. Racial bias can, and often does, infect a case early on in what are called “peremptory strikes.” In the jury selection process (called “voir dire”) potential jurors are questioned, and both prosecutors and defense attorneys are permitted a certain number of strikes, where they can block potential jurors from serving. While it’s unconstitutional to strike a potential juror on the basis of their race, coming up with race-neutral excuses is a strategy often employed – successfully –  by prosecutors. The Jury Sunshine Project found that prosecutors strike roughly 20% of available Black jurors in the pool, compared with only 10% of whites. In many communities, those numbers are much more extreme. According to the Equal Justice Initiative, Houston County, Alabama prosecutors have struck 8 out of 10 qualified Black potential jurors in death penalty cases. Studies have consistently shown that all-white juries are considerably harsher towards black defendants, are prone to making more errors, and less likely to discuss all of the case facts.

Joseph Briley, the prosecutor who secured Mr. Tharpe’s capital conviction, had earned a reputation for his use of peremptory strikes in jury selection. In 1988, Southern Center client Tony Amadeo’s conviction and death sentence were overturned in a unanimous opinion by the Supreme Court, after the court found that Briley and Putnam County, Georgia officials illegally kept Black residents out of the pool of potential jurors. In Mr. Tharpe’s case, Briley struck five out of eight black potential jurors. A white man named Barnie Gattie was selected to serve on the jury. Seven years after Mr. Tharpe’s conviction, his lawyers interviewed Gattie, and the evidence of his deep-rooted racial animus became clear.

In a sworn affidavit, Gattie said “after studying the Bible, I have wondered if black people even have souls. For example, look at OJ Simpson. That white woman wouldn’t have been killed if she hadn’t have married that black man.” Gattie further testified that the murder victim, who was also Black, came from a family of “nice black folks. “… If they had been the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much,” Gattie said. “My feeling is, what would be the difference?”

Black people have been and still are systematically barred from serving on juries. This was the case for Southern Center client Johnny Lee Gates, who was wrongfully convicted of murder by an all-white jury after all potential black jurors were excluded. This was also the case for former Southern Center client Timothy Foster, whose conviction and death sentence were overturned by the Supreme Court in 2016. The court found racial bias during the selection of the all-white jury that decided Mr. Foster’s fate, bolstered by the prosecution’s own color-coded notes describing their efforts to keep Black people off the jury.

In light of Timothy Foster’s win at the Supreme Court, the court remanded the case of Curtis Flowers, a black Mississippi man who has been tried six times for the same crime, and argues that his conviction and death sentence should be thrown out due to his prosecutor’s history of excluding black jurors. The Mississippi courts denied relief again. On Wednesday, the Supreme Court heard Mr. Flowers’ case.

Black people are frequently sentenced to death for murdering white people, but white people are seldom sentenced to death for murdering black people. The death penalty as we know it today is a direct scion of racial violence in America, primarily in the South.

Read more about Keith Tharpe.

Read more about Curtis Flowers.

Read more about Johnny Lee Gates.

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