Supreme Court Update: Tharpe v. Sellers (17-6075)
Greetings, Court Fans!
And Happy New Year! Though we're still awaiting the second signed opinion of October Term 2017, the Supreme Court kicked off Calendar Year 2018 with a per curiam decision in a case mixing (as so many do) race, capital punishment, . . . and certificates of appealability. In the immediate term, the Court's split decision in Tharpe v. Sellers (No. 17-6075) extends a (possibly short) lifeline to an inmate on Georgia's death row who contends that his sentence was impacted by juror bias. In the longer scheme, the decision may be more significant for the message it sends to lower courts about how heavy the doors to federal court should be in habeas cases involving possible racial bias in capital sentencing.
Keith Tharpe was convicted of murder and sentenced to death in 1991. Seven years later, his attorneys obtained an affidavit from one of the jurors in his case, a white man named Barney Gattie, suggesting that Gattie bore racial animus toward Tharpe. Armed with the affidavit, Tharpe sought collateral relief in state and federal court on the basis that juror bias infected his conviction and sentence. The state court determined that he had procedurally defaulted by failing to raise his claim on direct appeal and had failed to show cause and prejudice to excuse the default, and the federal courts concluded that the state determination was not clearly erroneous. In addition to the state procedural default, another obstacle to collateral relief was that Georgia law prohibited parties from impeaching a verdict with post-trial testimony from jurors. But last term in Peña-Rodriguez v. Colorado (2017), the Supreme Court held that state no-impeachment rules must give way when a juror makes a clear statement indicating he relied on racial stereotypes or animus to convict a criminal defendant. Tharpe therefore moved to reopen his federal habeas proceedings, citing Peña-Rodriguez as the "extraordinary circumstance" warranting that relief, but the District Court denied his motion because he still hadn't overcome his state procedural default by demonstrating that he was actually prejudiced by Gattie's participation in the case. The Eleventh Circuit agreed and therefore denied Tharpe's application for a certificate of appealability (COA).
As the Supreme Court put it in a per curiam opinion joined by the Chief, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, "[o]ur review of the record compels a different conclusion." In his "remarkable affidavit," the Gattie attested 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." To the majority, this was enough to present "a strong factual basis for the argument that Tharpe's race affected Gattie's vote for a death verdict." At the very least, "jurists of reason" could debate whether Tharpe had demonstrated by clear and convincing evidence that the state court's contrary determination was wrong. Although the Court acknowledged that the District Court's decision denying Tharpe's motion to reopen rested on other grounds as well, it faulted the Eleventh Circuit for denying a COA on the ground that it was indisputable that Gattie's service on the jury did not prejudice Tharpe. Accordingly, it granted Tharpe's cert petition, vacated the Eleventh Circuit's judgment, and remanded for further consideration of the question whether Tharpe is entitled to a COA.
Justice Thomas dissented, joined by Alito and Gorsuch. In his view, the majority had gone out of its way to twist the factual and procedural history of the case and grant Tharpe meaningless relief in an exercise of "ceremonial handwringing." To begin with, the majority misrepresented the facts underlying Tharpe's juror-bias claim. As it turns out, Gattie signed a second affidavit swearing that his vote for a death verdict was based solely on the evidence and Tharpe's lack of remorse, and that the first affidavit was obtained by Tharpe's lawyers while he was under the influence of "seven or more beers." The state court made its no-prejudice determination after presiding over a deposition of Gattie, in which he again distanced himself from the initial affidavit (though now attributing it to the influence of "a 12 pack [and] a few drinks of whiskey"), and considering the live testimony or affidavits of all eleven other jurors, who uniformly attested that race was not a factor in their votes.
Thomas similarly accused the majority of misrepresenting the decisions of the courts below, ignoring the fact that they rested not only on the conclusion that Tharpe wasn't prejudiced by Gattie's participation, but on the ground that he had not shown "cause" for failing to raise his claim in his direct appeal. (Tharpe claimed ineffective assistance of counsel, but did not support the claim with any evidence, according to Thomas.) And he faulted the majority for failing to consider alternative grounds for affirmance, including that Peña-Rodriguez does not apply retroactively on collateral review. Finally, he sharply criticized the majority for failing to defer to the lower courts' view of the prejudice issue. Even if a reasonable jurist could debate whether Gattie's participation on the jury prejudiced Tharpe (which Thomas clearly doubted), no reasonable jurist could debate the actual question that the Eleventh Circuit answered in denying a COA: whether it was an abuse of discretion for the District Court to deny Tharpe's motion to reopen, considering the deference owed to the state court's prejudice determination.
Inasmuch as even the majority appeared to concede that Tharpe was unlikely to prevail on remand, Thomas wondered what purpose was served by ignoring the problems he identified and providing Tharpe with a pyrrhic victory. One possibility (assuming Thomas is correct that the Court's decision "merely delays Tharpe's inevitable execution"), is that the majority's purpose was not to spare Tharpe's life, but instead to send a message that claims of racial animus in capital sentencing will be taken seriously in federal court, notwithstanding the procedural obstacles that so often stand in the way of habeas relief. As you'll no doubt recall, we suspected that a similar purpose lay behind the Chief's opinion last term in Buck v. Davis (2017), a case that also addressed both COAs and racial bias in capital sentencing. In Buck, the Supremes held that circuit courts should not get carried away with the merits when considering COA applications, but should instead determine merely whether reasonable jurists "could conclude the issues presented are adequate to deserve encouragement to proceed further." Justice Thomas (joined by Alito, with Gorsuch not yet confirmed) penned a similarly strident dissent in Buck, accusing the majority of "bulldoz[ing] procedural obstacles" to reach a desired result. But he considered it a silver lining that the majority's "single-minded focus on according relief to this petitioner on these facts naturally limits the reach of its decision." Maybe not. Though the per curiam decision in Tharpe doesn't cite Buck, the Roberts Court certainly seems to be doubling down on a message that habeas claims alleging potential racial bias in capital sentencing should be taken seriously, with something approaching a default presumption that such claims should be considered by an appellate panel before the doors to federal relief are shut.That's all for now. No new cert grants in Monday's Order List, but stay tuned next week, as Friday's conference may be the last opportunity for the Court to add cases that can be argued and decided this term.