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Justice Clarence Thomas

Once again, the Supreme Court has turned back for further review and a possible new trial a capital murder conviction and death sentence because of a juror’s racist comments. Tharpe v. Sellers, decided Jan. 8. Tharpe had been convicted of a particularly brutal murder. He ambushed his wife who had left him and forced her into his truck. He then shot her sister, dumped her into a ditch and murdered her, before driving off to kidnap and rape his wife. After unsuccessful appeals to state and federal courts, he again sought habeas corpus relief on the ground that a white juror was biased against him because he is black. The 11th Circuit, federal district and state courts all had concluded that he failed to demonstrate that the juror’s “behavior had substantial and injurious effect or influence in determining the jury’s verdict.” This conclusion, the five-justice per curiam majority agreed, generally would be binding “in the absence of clear and convincing evidence to the contrary.” The majority found such evidence in an affidavit by a single white juror, interrogated by defense counsel seven years after Tharpe’s conviction. As summarized by the majority, the affiant stated: “In his view there are two types of black people,: 1: Black folks and 2. N****r;” that Tharpe, “who wasn’t in the ‘good‘ black’ folks category in my book, should get the electric chair for what he did”; that some of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t his reason. The majority concluded that this “remarkable affidavit – which he never retracted” presented a strong factual basis for the argument that Tharpe’s race affected the juror’s vote for a death verdict, and that at the very least jurists of reason could debate whether Tharpe had shown by clear and convicting evidence that the state court’s factual determination was wrong.  The court had stayed Tharpe’s execution just moments before he was to be lethally injected, granted his petition for certiorari,  and without further briefing or argument summarily vacated the 11th Circuit judgment and remanded for further consideration of entitlement to habeas corpus relief.

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