Chamblee54

When You Agree With Justice Thomas

Posted in Georgia History, Library of Congress, Race, The Death Penalty by chamblee54 on January 9, 2018

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SCOTUS sent the death penalty case of Keith Tharpe back to the lower courts today. This is the Pontius Pilate approach, which might not save Mr. Tharpe from eventual execution. Here is the opinion, and the dissent by Justice Clarence Thomas.

Chamblee 54 has written about this case twice before. Keith Tharpe And Jaquelin Freeman is about the case itself. The short version is that Mr. Tharpe allegedly murdered his sister in law, and raped his estranged wife, after kidnapping both. There is little doubt that Mr. Tharpe is guilty. A jury sentenced him to death, after deliberating for two hours.

The Juror Who Said The N-Word is about the ‘extraordinary circumstances’ of this case. Seven years after the crime, a lawyer interviewed a juror, Barney Gattie. The gentleman said some rude things about black people. This post has a verbatim rendering, and some more information that is salient to the case. “Gat­tie’s remarkable affidavit—which he never retracted— presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.”

The dissent tells a different story. “More than seven years after his trial, Tharpe’s lawyers interviewed one of his jurors, Barney Gattie. The result­ing affidavit stated that Gattie knew Freeman, and that her family was “what [he] would call a nice black family.” The affidavit continued that, in Gattie’s view, “there are two types of black people: 1. Black folks and 2. Niggers.” Tharpe “wasn’t in the ‘good’ black folks category,” according to the affidavit, and if Freeman had been “the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much.” But because Freeman and her family were “good black folks,” the affidavit continued, Gattie thought Tharpe “should get the electric chair for what he did.” Gattie’s affidavit went on to explain that “after studying the Bible,” he had “wondered if black people even have souls.” The affidavit also noted that some of the other jurors “wanted blacks to know they weren’t going to get away with killing each other.”

A couple of days later, the State obtained another affi­davit from Gattie. In that second affidavit, Gattie stated that he “did not vote to impose the death penalty because [Tharpe] was a black man,” but instead because the evi­dence presented at trial justified it and because Tharpe showed no remorse. The affidavit explained that Gattie had consumed “seven or more beers” on the afternoon he signed the first affidavit. Although he had signed it, he “never swore to [it] nor was [he] ever asked if [the] statement was true and accurate.” He also attested that many of the statements in the first affidavit “were taken out of context and simply not accurate.” And he felt that the lawyers who took it “were deceiving and misrepresented what they stood for.” “which he never retracted.”

“A state postconviction court presided over Gattie’s depo­sition. Gattie again testified that, although he signed the affidavit, he did not swear to its contents. Gattie also testified that when he signed the affidavit he had con­sumed “maybe a 12 pack, [and] a few drinks of whiskey, over the period of the day.” Tharpe’s lawyers did not question Gattie about the contents of his first affidavit at the deposition. They instead spent much of the deposition asking Gattie unrelated questions about race, which the state court ruled irrelevant—like whether he was familiar with Uncle Tom’s Cabin or whether his granddaughter would play with a black doll. The lawyers’ failure to address the contents of Gattie’s first affidavit troubled the state court. Just before it permitted Gattie to leave, the court advised Tharpe’s lawyers that it might “totally discount” Gattie’s first affidavit, and it again invited them to ask Gattie questions about its contents. Tharpe’s lawyers declined the opportunity.

The state court also heard deposition testimony from ten of Tharpe’s other jurors and received an affidavit from the eleventh. None of the jurors, two of whom were black, corroborated the statements in Gattie’s first affidavit about how some of the jurors had considered race. The ten jurors who testified all said that race played no role in the jury’s deliberations. The eleventh juror did not mention any consideration of race either.”

Justice Thomas goes full Scalia in this closing paragraph. “Today’s decision can be explained only by the “unusual fact” of Gattie’s first affidavit. The Court must be disturbed by the racist rhetoric in that affidavit, and must want to do something about it. But the Court’s decision is no profile in moral courage. By remanding this case to the Court of Appeals for a useless do-over, the Court is not doing Tharpe any favors. And its unusual disposition of his case callously delays justice for Jaquelin Freeman, the black woman who was brutally murdered by Tharpe 27 years ago. Because this Court should not be in the busi­ness of ceremonial handwringing, I respectfully dissent.”

There is a lot of legalese in this document, which makes IANAL heads hurt. One wonders if the second affidavit qualifies as a retraction. Maybe SCOTUS felt the need to virtue signal on racism. There is also a lot of talk about whether the statements by Mr. Gattie should be allowed to influence the appeals process. Pena-Rodriguez is cited, along with many other cases. This is what lawyers do.

The majority opinion, as well as most press reports on today’s ruling, does not mention Mr. Gattie’s intoxication during the first affidavit. Indeed, since Mr. Gattie never read this affidavit, nor swore to it, there is no telling how accurate it is. We don’t know what questions attorneys were asking the elderly drunk. Did the lawyers lead him on, and put words in his mouth? The ethics of interviewing an intoxicated man, to try to save your client from execution, are questionable.

One might also ask what this says about the death penalty process. The state bends over backwards to give the illusion of fairness, and due process. An attorney goes out, interviewing jurors seven years after the trial, trying to find dirt. Getting a criminal off on a technicality is a regrettable consequence of our judicial system. Maybe in this case justice would have been served with a life sentence, without fishing trip juror interviews.

Pictures are from The Library of Congress. These details are from picture #06666, documenting “First Internation[al] Pageant of Pulchritude & Seventh Annual Bathing Girl Review at Galveston, Texas.” It was taken in 1926.

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3 Responses

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  1. […] UPDATE SCOTUS stays execution of Georgia death row inmate amid claims of racial bias. UPDATE SCOTUS issued a ruling on the case January 8, […]

  2. […] were taken in North Platte, Nebraska. John Vachon took the pictures in October, 1938. UPDATE SCOTUS issued a ruling on the case January 8, 2018, with a dissent from Justice Clarence […]

  3. Ceremonial Handwringing | Chamblee54 said, on January 15, 2018 at 12:14 pm

    […] had been given a life sentence, nobody would have played gotcha with a drunken, elderly juror. ~ SCOTUS issued a ruling on the case January 8, 2018, ~ @nihilist_arbys Bannon is a reminder that, even if […]


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