Barney Gattie served on the jury in Georgia that sentenced Keith Tharpe to death for the murder of Jaquelin Freeman. Gattie is white; Tharpe is black, and so was Freeman. Seven years after the trial, Gattie stated in a sworn affidavit that he believed “there are two types of black people”—“black folks” and “niggers.” He declared that Tharpe was a “nigger” while the Freemans were “nice black folks.” Gattie added that “after studying the Bible, I have wondered if black people even have souls.” In light of this affidavit, Tharpe argued that his constitutional right to an impartial jury had been violated. A state court disagreed, as did a federal district court. In September, a federal appeals court also ruled against Tharpe, clearing the way for his execution—which the Supreme Court blocked in September, over the dissents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.
On Monday morning, the Supreme Court gave Tharpe a second chance, vacating the appeals court’s decision that Gattie’s racism did not affect the jury’s sentence and sending the case back down for further consideration. Once again, Thomas, Alito, and Gorsuch dissented. This time, the trio explained their objections in an inflammatory dissent by Thomas that accused the majority of attempting to prove “its concern for racial justice.” The dissenters excoriated their colleagues for allegedly twisting the law in Tharpe’s favor to meet an ideological end. But their underlying argument isn’t just that the majority distorts the law. It’s that the law shouldn’t protect people like Tharpe.
Tharpe was sentenced to death in 1991. His attorneys, Diana Holt and Laura-Hill Patton, did not uncover Gattie’s flagrant racism until they interviewed him at his house in 1998. That year, Patton testified that Gattie told them:
If the victim in Mr. Tharpe’s case had just been one of the niggers, he would not have cared about her death. But as it was, the victim was a woman from what Mr. Gattie considered to be one of the “good black families” in [the community]. … Mr. Gattie stated that that sort of thing really made a difference to him when he was deciding whether to vote for a death sentence.
Holt confirmed this account in an affidavit and added:
Mr. Gattie said that he was congratulated for a good job as a juror on this case by some folks in the community. He said that one of the victim’s family members had even told him, “Thanks for sending that nigger to the chair.”
Shortly after this conversation, Patton and Holt returned with a draft affidavit for Gattie to sign. This draft included Gattie’s discussion of “niggers,” skepticism that black people have “souls,” and opposition to interracial marriage. (“For example, look at O.J. Simpson. That white woman wouldn’t have been killed if she hadn’t have married that black man.”) And it stated that some of the other jurors “wanted blacks to know they weren’t going to get away with killing each other.” As Holt explained:
I read the statement from beginning to end to him, including the preface declaring that Mr. Gattie was swearing to the following information. After each point, I looked at him and asked him if the statement was right. He nodded or said, “yes” after each point, except for one point [conflating interracial marriage with integration]. I corrected the statement on that point to reflect Mr. Gattie’s actual words. He confirmed the accuracy of every word of the rest of the statement.
This affidavit did not persuade a state court that Gattie’s vote to impose the death penalty rested on Tharpe’s race. Tharpe took his fight to the federal judiciary, but a district court ruled that no “clear and convincing evidence” contradicted the state court’s decision. The U.S. Court of Appeals for the 11th Circuit affirmed that ruling. It asserted that “jurists of reason could not dispute” the district court’s decision, because Tharpe “failed to demonstrate” that Gattie’s racism “had substantial and injurious effect or influence in determining the jury’s verdict.”
The Supreme Court held otherwise. “Gattie’s remarkable affidavit,” the court explained on Monday, “presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.” On the “unusual facts of this case,” the majority wrote, the 11th Circuit should not have found “that it was indisputable among reasonable jurists that Gattie’s service on the jury did not prejudice Tharpe.”
This decision will not necessarily spare Tharpe from execution. It’s a procedural ruling that will merely give Tharpe another chance to make a “substantial showing” that he was denied a constitutional right. But the narrow nature of Monday’s decision is part of what so angered Thomas. Because the ruling will not guarantee Tharpe a victory in the 11th Circuit, Thomas dismissed it as “ceremonial handwringing” that will lead to a “useless do-over.” He also criticized the majority for insufficiently deferring to the lower courts’ conclusions.
Thomas’ primary objection, however—one apparently shared by Alito and Gorsuch—is more fundamental. The justice derided his colleagues’ palpable horror at Gattie’s racist comments, as well as their respect for Tharpe’s rights under the law in light of the murder he commited. Thomas downplayed Gattie’s racism. He pointed out that, by Gattie’s own admission, he had consumed “[m]aybe a 12 pack, [and] a few drinks of whiskey” when he signed his affidavit—as if intoxication excuses racial animus. Moreover, Thomas wrote that prosecutors later obtained a second affidavit from Gattie; in this statement, Gattie said he definitely wasn’t racist but was drunk when he signed the first affidavit. The justice failed to mention that Gattie never actually retracted his initial affidavit.
Is Thomas really so gullible that he believes this prosecutorial damage control? Of course not. There’s something else going on here: Thomas wants to shame his colleagues for what he views as their naïve and facile political correctness. To that end, Thomas described Tharpe’s crime in gratuitously graphic detail, accusing the majority of “callously delay[ing] justice” for Freeman. He then charged his colleagues with “bending the rules” for “a black capital inmate” to show a contrived “concern for racial justice.” Finally, he noted that Freeman “was also black,” but was “ignored by the majority,” which only wished to disclaim the “racist rhetoric in that affidavit.” The court’s decision, Thomas scoffed, “is no profile in moral courage.”
There are three disturbing aspects of Thomas’ dissent. The first is the fact that Gorsuch joined it in full, providing further evidence of his shallow commitment to racial equality. The second is that Thomas felt compelled to level a searingly personal attack at his colleagues over a fairly minor legal dispute. As he has in the past, the justice appeared more focused on swift punishment than dispassionate application of the law, eagerly anticipating Tharpe’s “inevitable execution.”
Third, and most importantly, Thomas’ dissent confirms that he simply does not care when racism infects the criminal justice system. In the past few years, the Supreme Court has granted relief to a black man whose prosecutors dismissed all potential black jurors; a black man whose expert witness said black people were unusually dangerous; and a Mexican man whose jury was tainted by anti-Latino animus. Only Thomas dissented from all three decisions. The justice has given up on equal rights under the law. At this point, he just wants retribution.
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