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Supreme Court Stays Death Sentence to Hear Appeal on Juror’s Racial Bias

Wading again into the murky area of how and when juror racial prejudice can upset a criminal conviction, the U.S. Supreme Court temporarily halted the scheduled execution of a Georgia inmate.

The move came in September in order to hear the inmate’s appeal of a lower federal court’s decisions that evidence of a juror’s racially biased statements did not make his sentence unconstitutional. Georgia’s highest court had earlier rejected a similar challenge, and the state board of pardons and parole—the state’s only avenue for clemency appeals—declined to change the inmate’s death sentence to life without parole.

The high court’s decision came almost literally at the eleventh hour of the night the inmate was scheduled to be executed by lethal injection; the 7 p.m. execution was delayed for almost four hours by legal wrangling and communications with the Supreme Court, which issued the stay to allow a still-to-be-scheduled hearing on the inmate’s appeal. The decision was not unanimous: three justices (Thomas, Alito, and Gorsuch) dissented.

The African-American inmate, Keith Leroy Tharpe, has been incarcerated for about 27 years. He was convicted early in 1991 of the shotgun murder of his sister-in-law, who had been driving Tharpe’s estranged wife after she left him, taking their four daughters. In Tharpe v. Sellers, the Supreme Court will consider whether Tharpe’s trial was impermissibly tainted by racial bias from at least one juror.

The evidence of juror bias comes from an interview held seven years after the conviction with a white juror, Barney Gattie, in which he used racial slurs and at one point observed that he wondered whether blacks “had souls.” The now-deceased Gattie soon backtracked, after talking with lawyers for the state, claiming he had been drinking before the interview, and did not understand why he was being questioned, and alleging the affidavit he signed “misconstrued” his statements.

supreme courtAbout a year ago, the high court heard another capital punishment case (Buck v. Davis), this one from Texas, dealing with racial prejudice. In that decision, handed down this February, the court ruled the inmate’s death penalty sentence was infected with racial prejudice. At the trial, an expert witness testified black people are more violent than others, in a situation where the likelihood of future violence was required to invoke capital punishment. Justices Alito and Thomas dissented from the majority opinion delivered by Chief Justice Roberts. Before re-trial, Buck’s sentence was reduced to life in prison.

The next month, in Peña-Rodriguez v. Colorado, the high court split 5-3 in ordering a Colorado court to reconsider whether a juror’s anti-Hispanic remarks justified overturning a sex-crime conviction and requiring a new trial. The decision did not give much concrete guidance on how the reviewing state court should go about determining how great an impact the biased remarks had—though it did say more would be needed than an “offhand comment” of racial prejudice or animus—or how much unfairness would need to be shown to merit a new trial, beyond saying it would have to be shown racial bias was a “significant motivating factor” of the conviction.

Unlike the case in Tharpe, however, the juror’s remarks came during jury deliberations, not years afterward. Three justices dissented (Chief Justice Roberts and Justices Alito and Thomas) in the Colorado case.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to The Huffington PostNew York Daily News, and Prison Legal News. He can be found online at and

About Christopher Zoukis

Christopher Zoukis, a writer currently incarcerated at FCC Petersburg (Medium), is an impassioned and active prison education advocate, a legal commentator, and a prolific writer of books, book reviews, and prison law articles. While living in federal prison at various security levels, retaliations for his activism have earned him long stretches in solitary, or "the hole." While in prison, he has earned numerous academic, legal, and ministerial credentials. Christopher is very knowledgeable about prison-related legal issues, prison policy, federal regulations, and case law. He is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons (Middle Street Publishing, 2017), College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014) and thePrison Education Guide (Prison Legal News Publishing, 2016).The Federal Prison Handbook is an IndieReader Discovery Awards winner. A regularly featured contributing writer for The Huffington Post and Prison Legal News, the nation's most prominent prison law publication, Christopher has enjoyed significant media exposure through appearances with the Wall Street Journal's Market Watch,,, In These Times, The Jeff McArthur Show, The Simi Sara Show,, 88.9 WERS' award-winning "You Are Here" radio segment, and The Examiner. Other articles and book reviews appeared in The New York Journal of Books, the Kansas City Star, The Sacramento Bee, Blog Critics, Midwest Book Review, Basil and Spice, Seattle Post-Intelligencer, SF Gate, AND Magazine,, Rain Taxi, and the Education Behind Bars Newsletter, with content syndicated by the Associated Press, Google News, and Yahoo News. He established three websites:,, and, and was a former editor of the Education Behind Bars Newsletter. In 2011, his fiction won two PEN American Center Prison Writing Awards for a screenplay and a short story. He taught a popular course on writing and publishing to over 100 fellow prisoners. Today Christopher is successfully working on a Bachelor's Degree in Interdisciplinary Studies (Business/Law) from Adams State University. Following his 2016 graduation, he plans on attending Adams State University's MBA program. He regularly advises fellow prisoners and prison consultants about legal issues and federal regulations governing the Federal Bureau of Prisons operations. Upon release he plans to attend law school and become a federal criminal defense attorney. Christopher will not allow incarceration to waste his years or halt the progress of his life. He began his prison terms as a confused kid who made poor decisions but is today determined to create a better life. "We can't let the past define us," he says. "We have to do something today to make tomorrow what we want it to be."

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