“Two Types”

By Liana Stinson

A no-contact order was issued against Keith Tharpe by Migrisus, Tharpe’s wife. Tharpe v. Sellers, 138 S. Ct. 545, 547 (2018) (Dissent). Regardless of the order, Tharpe told his wife that if she wanted to “’play dirty’ he would show her ‘what dirty was.’” Id. The next morning, Tharpe ambushed his wife and her sister, Jaquelin Freeman, by pulling his vehicle in front of the car they were in to force them to stop. Id. Once they were stopped, Tharpe pulled out a shotgun from his vehicle, aimed it at their car, and order his wife to get into his truck. Id. Tharpe then told Freeman that he was going to “f– [her] up” and then took her to the back of his vehicle, shot her, “rolled her body into a ditch, reloaded, and shot her again, killing her.” Id. Tharpe next both kidnapped and raped his wife, leaving behind Freeman’s body in the ditch to be later found by her husband while driving their children to school. Id.

Subsequently, Tharpe was convicted by a jury of malice murder and two counts of aggravated kidnapping. Id. The jury only needed two hours to return the unanimous death sentence after hearing all of the evidence. Id. The jury noted that not only did Tharpe commit a murder that was “outrageously or wantonly vile, horrible, or inhuman,” he also committed two other capital offenses at the same time: the aggravated kidnappings of Ms. Freeman and his own wife. Id. at 547-548.

Fast forward to seven years after Tharpe’s trial, Tharpe’s attorneys interviewed one of the jurors in his trial, Barney Gattie, and drew up an affidavit. Id. at 548. During the interview, Gattie stated that he knew Freeman and that her family was “what [he] would call a nice [b]lack family.” Id. Gattie then stated that “there are two types of black people: 1. Black folks and 2. N******.” Id. Thereafter, the affidavit included that Gattie thought Tharpe “wasn’t in the ‘good’ black folks category’” and if Freeman had be “‘the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much.’” Id. Gattie then stated that because Freeman, along with her family, were “good black folks,” Tharpe “should get the electric chair for what he did.” Id. The affidavit even included a statement by Gattie that “[a]fter studying the Bible, “he had “wondered if black people even have souls.” Id. In regards to the other jurors, Gattie noted that some of them “wanted blacks to know they weren’t goin to get away with killing each other.” Id.

Two days later, Gattie presented an affidavit to the State saying that he “did not vote to impose the death penalty because [T]harpe was a black man,” but because “the evidence presented at trial justified it and because Tharpe showed no remorse.” Id. Gattie explained in the affidavit that although the previous affidavit through Tharpe’s attorneys was signed by Gattie, he “never swore to [it] nor was [he] ever asked if [the] statement was true and accurate” and also that he had consumed “seven or more beers” when he signed the first affidavit. Id. In regards to the statements in the first affidavit, Gattie stated that they “were taken out of context and simply not accurate.” Id. He also mentioned how he felt that Tharpe’s attorneys who took the affidavit “were deceiving and misrepresented what they stood for.” Id.

Thereafter, Tharpe moved to reopen his federal habeas corpus proceedings and claimed that the jury that convicted him of murder included a juror, Gattie, whom was biased against Tharpe simply because he was black. Id. at 545. The state court made a factual determination that Tharpe failed to show “prejudice in connection with his procedurally defaulted claim. Id. Tharpe then appealed to the District Court. Id. The District Court denied his claim because it was “procedurally defaulted in state court.” Id. Also, the District Court noted that Tharpe “failed to produce any clear and convincing evidence contradicting the state court’s determination that Gattie’s presence on the jury did not prejudice him.” Id. Tharpe then appealed to the Eleventh Circuit which agreed with the state court’s factual determination and concluded that Tharpe had “failed to demonstrate that Barney Gattie’s behavior ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Id. Tharpe then appealed to the Supreme Court of the United States which granted certiorari.

Although the state court, before the District Court, concluded that Gattie’s vote to impose the death penalty on Tharpe was not based on race, that finding, absent “clear and convincing evidence to the contrary, is binding on the Supreme Court. However, the Court found that there was clear and convincing evidence to the contrary in this case. Id.

The affidavit produced by Tharpe was signed by Gattie which explicitly expressed his view that “there are two types of black people” and that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did.” Id. These statements, among all of Gattie’s other statements in the affidavit, would at least allow jurors to debate whether Tharpe did meet his burden by showing clear and convincing evidence to show that the state court’s factual determination was wrong. Id. Therefore, the Court concluded that the Eleventh Circuit erred when it concluded that Tharpe had failed to produce evidence to the contrary. Id.

The dissent argued that the second affidavit submitted by Gattie was significant and that, because none of the other jurors corroborated his story that they “wanted blacks to know they weren’t going to get away with killing each other,” the dissent argues that Gattie’s second affidavit was credible. Id. at 548. The dissent is however, mislead.

Regardless of whether it was true that Gattie had consumed alcoholic beverages prior to the meeting with Tharpe’s lawyers, he signed the affidavit. His signature on the affidavit affirms that those statements were told by him in response to the lawyer’s questions. There was no sign of duress in this case, being that this affidavit was taken seven years after the death sentence was imposed on Tharpe. Therefore, Gattie’s statements reflected what he truly felt, intoxicated or not.

I am extremely pleased with the Court’s holding in this case. Had the dissent become the majority, there would have been an injustice to Tharpe as well as any proceeding case where a defendant finds out later that there was any sort of bias against him by a juror which might have cause his harsh sentence and possibly subjected him/her to the death penalty. A slippery slope may have been created if the majority did not rule that the question of juror bias should be left to the finder of fact; jurors then would be free to hide their true feelings towards defendants to obtain a favorable conviction to them and then subsequently unveil those true feelings after the trial. Jurors would then intentionally try to convict those defendants that they have harsh feelings towards.

This outcome in this case, however, may have an impact on the court system. Because this case needs to now be remanded to have a jury decide whether Tharpe produced clear and convincing evidence, the case is not final. It will now be another case in the court system. If every death penalty conviction or conviction in general is found to have a possibility of bias jurors, while fairness and justice dictates they be remanded, the court system may become bogged down with all of the remands. However, because we should look at the element of fairness and justice to all persons, the jury should decide whether Tharpe met his burden of showing the jury pool was bias against him. If that is found to be the case, he has the right to a fair and just trial.

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