On Monday, six members of the Supreme Court issued a promising per curiam opinion—an opinion no one justice claimed credit for—in a racial bias case. Justices Thomas, Alito, and Gorsuch, however, disagreed so strongly that they took the unusual step of writing a dissent from a per curiam opinion.
Kevin Tharpe was convicted of murder and sentenced to death by a jury that included a white juror named Barney Gattie, who later signed an affidavit strongly suggesting racism affected his vote.
Tharpe produced a sworn affidavit, signed by Gattie, indicating Gattie’s view that “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; that “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t my reason”; and that, “[a]fter studying the Bible, I have wondered if black people even have souls.”
Citing evidence that at least one juror was racially biased, Tharpe sought a chance to appeal the denial of his petition for habeas corpus in federal court. Habeas corpus is the last legal stop for people contesting imprisonment or, in this case, the death penalty.
Despite the affidavit, the federal district court and then the appeals court denied Tharpe the “certificate of appealability” needed to appeal. When the case arrived at the Supreme Court, however, a six-justice majority found the affidavit gave ample reason to suspect bias infected the juror’s vote. Their ruling means the circuit court has to take another crack at the case. The result may well be the same for Tharpe, but the principle the Supreme Court has shored is significant.
Usually, appeals courts have to work with the facts as the court below, whether a federal trial court or, as in this case, a state court, has found them. The exception? A factual finding may be found erroneous in the presence of “clear and convincing evidence to the contrary.” Here, the Supreme Court decided that clear evidence of a juror’s racially biased approach to deliberations provided a strong basis for questioning the determination that the juror’s vote was bias-free. It’s the latest in a series of rulings surrounding racial bias in the jury room.
Alas, Justice Clarence Thomas was having none of it. To Thomas, the ruling is “pointless” because a re-hearing will likely generate the same result and, on the whole, mystifying.
The only possible explanation is its concern with the “unusual facts” of this case, specifically a juror affidavit that expresses racist opinions about blacks. The opinions in the affidavit are certainly odious. But their odiousness does not excuse us from doing our job correctly, or allow us to pretend that the lower courts have not done theirs.
The responsibility of courts is to decide cases, both usual and unusual, by neutrally applying the law. The law reflects society’s considered judgments about the balance of competing interests, and we must respect those judgments. In bending the rules here to show its concern for a black capital inmate, the Court must think it is showing its concern for racial justice. It is not. Its summary vacatur will not stop Tharpe’s execution or erase the “unusual fac[t]” of the affidavit. It will only delay justice for Jaquelin Freeman, who was also black, who is ignored by the majority, and who was murdered by Tharpe 27 years ago.
If it seems odd that Thomas penned the dissent in this case—it’s not. In March 2017, Thomas, Alito and Roberts dissented from another racial bias case, one addressing whether courts can violate the norm of secrecy for jury deliberations if there’s evidence of racial bias.
The Supreme Court ruled on Monday that courts must make an exception to the usual rule that jury deliberations are secret when evidence emerges that those discussions were marred by racial or ethnic bias.
“Racial bias implicates unique historical, constitutional and institutional concerns,” Justice Anthony M. Kennedy wrote for the majority in the 5-to-3 decision.
The case arose from statements made during jury deliberations in a 2010 sexual assault trial. “I think he did it because he’s Mexican, and Mexican men take whatever they want,” a juror said of the defendant, according to sworn statements from other jurors submitted by defense lawyers after the trial was over.
The juror, identified in court papers as H.C., was a former law enforcement officer. After the trial was over, two other jurors submitted sworn statements describing what he had said during deliberations. “He said that where he used to patrol, nine times out of 10 Mexican men were guilty of being aggressive toward women and young girls,” one juror recalled.
Those statements, Justice Kennedy wrote, warranted an investigation by the trial judge into deliberations that are ordinarily secret. Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion.
Flash back to February 2017, when the majority, led by Roberts, found that a defendant whose sentencing was affected by racist expert testimony should be re-sentenced.
Testimony laced with “a particularly noxious strain of racial prejudice” in a Texas death penalty case required a new sentencing for the defendant, Duane Buck, the Supreme Court ruled on Wednesday.
The testimony came from a psychologist who said black defendants were more dangerous than white ones. Chief Justice John G. Roberts Jr., writing for the majority in a 6-to-2 decision, said the psychologist’s report “said, in effect, that the color of Buck’s skin made him more deserving of execution.”
“Our law punishes people for what they do, not who they are,” Chief Justice Roberts wrote. “Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.”
Then, too, Thomas and Alito dissented, and Thomas authored the dissent.
The case reached the Supreme Court on the narrow question of whether a federal appeals court should have allowed Mr. Buck to appeal a challenge to his death sentence. But Chief Justice Roberts’s opinion answered larger questions, too, ruling that Mr. Buck’s lawyers had been ineffective and had prejudiced him, making him entitled to a new sentencing hearing.
In his dissent, Justice Thomas said the majority had been so eager to reach its “desired outcome” that it had bulldozed procedural obstacles and misapplied settled law. As a consequence, the decision in the case, Buck v. Davis, No. 15-8049, “has few ramifications, if any beyond the highly unusual facts presented here,” Justice Thomas wrote.
It’s heartening that Roberts is receptive to ensuring defendants’ rights are protected, but this is one more area of law in jeopardy under Trump should he get to make another nomination to the court.