February 23, 2019
Last month, after Keith Tharpe ate what he thought was going to be his last meal in the Georgia state penitentiary where he was scheduled to be put to death, the U.S. Supreme Court granted him a stay. (Three justices dissented, led by Justice Thomas, who wrote a peculiar and meandering opinion in favor of allowing Tharpe to be killed).
The issue? Several years after his 1991 conviction and death sentence for murder, one of the jurors who had sat in judgment of him signed an affidavit stating that there are two types of black people: good ones and “niggers.” The juror, who was white, put the defendant in the latter category and said that “After studying the Bible, I have wondered if black people even have souls.”
If you think that might be a pretty good reason to set aside a conviction (and the death sentence that went along with it), you’d be wrong.
The problem is that, by and large, courts prohibit jurors from testifying about deliberations.
And Tharpe is by no means out of the woods yet. The Court remand was narrow, and directed the Circuit Court of Appeals — which had previously ruled that the juror’s presence on the panel did not prejudice Tharpe — to determine if Tharpe is entitled to a certificate of appealability.
On a related note, yesterday in Concord, death row exonerees, clergy from multiple denominations, former Attorneys General, judges and law enforcement, murder victim family members, legal experts, and scores of ordinary citizens converged on the State House to testify in favor of legislation that would end capital punishment in New Hampshire. New Hampshire is the only state in the Northeast that retains the death penalty. There is one (1) prisoner on death row in New Hampshire. He happens to be black. In a state that is 93.9% white and in which African-Americans constitute 1.1% of the population