(CNN) — The Supreme Court declined on Monday to take up the case of Georgia death row inmate Keith Tharpe, who claims a juror voted to put him to death because of his race.
Lawyers for Tharpe pointed to an affidavit from an interview conducted seven years after Tharpe’s sentencing. Juror Barney Gattie used a racial slur in reference to African-Americans. He also questioned whether “black people even have souls.”
The court had heard this case back in 2018, and revived Tharpe’s case over the dissents of Justices Thomas, Alito and Gorsuch.
Now the state of Georgia is free to set an execution date.
Justice Sonia Sotomayor agreed with the court’s decision not to take up the case, in part because the lower court ruled that Tharpe had “not given a sufficient justification for failing to raise the juror-bias claim” in a timely fashion.
Sotomayor said she respected the denial of cert in the case because it did not turn on the merits of Tharpe’s racial-bias claim. But she wrote separately to say that she was “profoundly troubled by the underlying facts of the case.”
“It may be tempting to dismiss Tharpe’s case as an outlier, but racial bias is a familiar and recurring evil,” Sotomayor wrote. “That evil often presents itself far more subtly than it has here. Yet Gattie’s sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arresting demonstration that racism can and does seep into the jury system.”
A lawyer for Tharpe condemned the court’s decision.
“Today’s decision from the U.S. Supreme Court takes giant steps backwards from the court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice,” Marcia Widder said in a statement.”
As Justice Sotomayor explained in her statement concurring in the denial of certiorari, the court’s action in denying the petition had nothing to do with the merits of Mr. Tharpe’s claim — a claim that, she noted, ‘to this day . . . has never been adjudicated on its merits.’
Rather, she observed, the court was bound to defer to complex procedural rulings made by the federal district and appeals courts below,” Widder continued.
When the court first heard the case in 2018, it said that Tharpe’s legal team had produced a “remarkable” affidavit from a juror, written after the conviction, that presented a “strong factual basis” for the argument that Tharpe’s race had affected the juror’s vote.
The majority then cautioned, however, that Tharpe faced “a high bar in showing that jurists of reason could disagree” with the state court’s opinion.
Upon further review, the lower court again ruled against Tharpe, finding he had not met the procedural burdens necessary to reopen his case. The court also held that a 2017 Supreme Court opinion that said the secrecy of jury deliberations can be pierced when there is evidence that a juror relied on racial animus did not apply retroactively to Tharpe’s case.
DOJ Will Take Suspended Federal Executions To US Supreme Court
WASHINGTON (AP) — Attorney General William Barr told The Associated Press on Thursday that he would take the Trump administration’s bid to restart federal executions after a 16-year hiatus to the Supreme Court if necessary.
Barr’s comments came hours after a district court judge temporarily blocked the administration’s plans to start executions next month. The administration is appealing the decision, and Barr said he would take the case to the high court if Thursday’s ruling stands.
He said the five inmates set to be executed are a small portion of 62 death row inmates.
“There are people who would say these kinds of delays are not fair to the victims, so we can move forward with our first group,” Barr said aboard a government plane to Montana, after he met with local and federal law enforcement officials in Cleveland.
The attorney general unexpectedly announced in July that the government would resume executions next month, ending an informal moratorium on federal capital punishment as the issue receded from the public domain.
Some of the chosen inmates challenged the new procedures in court, arguing that the government was circumventing proper methods in order to wrongly execute inmates quickly.
U.S. District Judge Tanya S. Chutkan put the cases on ice while the challenge plays out. She said in a Wednesday evening ruling that the public is not served by “short-circuiting” legitimate judicial process.
“It is greatly served by attempting to ensure that the most serious punishment is imposed lawfully,” she wrote.
Her ruling temporarily postpones four of the five scheduled executions beginning next month; the fifth had already been halted. It’s possible the government could win an appeal in time to begin executions Dec. 9, but that would be an unusually fast turnaround.
“This decision prevents the government from evading accountability and making an end-run around the courts by attempting to execute prisoners under a protocol that has never been authorized by Congress,” said the inmates’ attorney, Shawn Nolan. “The court has made clear that no execution should go forward while there are still so many unanswered questions about the government’s newly announced execution method.”
Most Democrats oppose the death penalty. Republican President Donald Trump has spoken often about capital punishment and his belief that executions serve as an effective deterrent and an appropriate punishment for some crimes, including mass shootings and the killings of police officers.
Still, executions on the federal level have been rare. The government has put to death only three defendants since restoring the federal death penalty in 1988, most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.
In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs.
Barr said in July that the Obama-era review had been completed, clearing the way for executions to resume.
He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Georgia, Missouri and Texas, but not all.
Chutkan said in her opinion that the inmates’ legal challenge to the procedure was likely to succeed because the Federal Death Penalty Act requires that federal executions employ procedures used by the states in which they are carried out.
On Thursday, Barr defended the protocols, saying the Bureau of Prisons has been testing and conducting practice drills ahead of the first execution. He would not say where the cocktail of drugs would come from.
“I was kept advised and reports were given to me, scientific tests, the drills they are running through,” Barr said.
Those chosen were among inmates who had exhausted their appeals, and the cases were forwarded to senior Justice Department officials who reviewed the cases and made recommendations to him, Barr said.
Danny Lee of Yukon, Oklahoma, was the first person scheduled to be executed. Lee was convicted in the 1996 deaths of an Arkansas family as part of a plot to set up a whites-only nation in the Pacific Northwest.
The death penalty remains legal in 30 states, but only a handful regularly conduct executions. Texas has executed 108 prisoners since 2010, far more than any other state.
Though there hasn’t been a federal execution since 2003, the Justice Department has continued to approve death penalty prosecutions, and federal courts have sentenced defendants to death.
Federal Judge Stays All Pending Scheduled Federal Executions
A judge has blocked the scheduled executions of four federal death row inmates, effectively stopping the Trump administration’s effort to continue inflicting the death penalty in a national system that saw its last execution more than a decade and a half ago.
The order issued Wednesday night by U.S. District Court Judge Tanya Chutkan halts four executions that U.S. officials intended to carry out starting next month.
The only other execution that officials had put on the calendar, also for December, was blocked last month by the 9th Circuit U.S. Court of Appeals.
In July, Attorney General William Barr announced plans to resume executions at the federal prison in Terre Haute, Ind. He implied the practice had been allowed to languish for too long and said it would deliver justice in cases involving what he called the “worst criminals.”
Barr announced a new federal death penalty protocol that would use a single drug, pentobarbital, instead of a three-drug “cocktail” employed in the most recent federal executions.
In the wake of Barr’s announcement, a series of death row inmates enteredered a long-dormant legal challenge to that previous method. They asked Chutkan to block their executions under the new protocol until their legal challenges to it were fully adjudicated.
In her ruling Wednesday, Chutkan stated the death row inmates appeared likely to prevail on their arguments that the new protocol violates longstanding federal law because the procedures to be used vary from state law. A 1994 federal statute says federal executions shall be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.”
Justice Department attorneys contended that the use of lethal injection was sufficiently similar despite the drugs used or other details of the execution protocol. Still, Chutkan ruled that the law likely requires federal authorities to utilize the same drugs or drugs and a similar process.
“Requiring the federal government to follow more than just the state’s method of execution is consistent with other sections of the statute and with historical practices. For all these reasons, this court finds that the FDPA [Federal Death Penalty Act] does not authorize the creation of a single implementation procedure for federal executions,” wrote the judge, an appointee of President Barack Obama.
“There is no statute that gives the [Bureau of Prisons] or DOJ the authority to establish a single implementation procedure for all federal executions,” Chutkan added.
In imparting the injunction, Chutkan noted the apparent fact that allowing the executions would deny the inmates of their ability to continue their legal challenges. She also fled from the Justice Department’s claim that time was of the essence, noting that revisions to the federal death penalty protocol failed for years after shortages developed of at least one drug used in the earlier three-drug cocktail.
The earliest of the five executions that federal officials planned to carry out in the coming weeks was scheduled for Dec. 9.
“While the government does have a legitimate interest in the finality of criminal proceedings, the eight years that it waited to establish a new protocol undermines its arguments regarding the urgency and weight of that interest,” the judge wrote.
Read the order here. Live updates on America’s executions below.
Georgia Won’t Examine DNA Evidence That Could Vindicate A Man On Death Row, Who’s Being Executed Tonight
A Georgia man on death row in Georgia is scheduled to be executed Wednesday evening with a lethal injection, although he repeatedly insists that the state examine crucial DNA evidence that could exonerate him.
Ray “Jeff” Cromartie, 52, acknowledges being involved in a robbery in a shop near the Georgia-Florida border in 1994 that left one clerk dead, but he has long confirmed that he was not the person who shot the gun that killed Richard Slysz. He maintains his co-defendant, Corey Clark, shot Slysz, and that DNA testing on both clothing and bullet casings might prove that claim. One of the co-suspects of Cromartie also believes that Clark may have shot Slysz, and the victim’s daughter has also asked for DNA testing as well.
Since Cromartie retains his innocence, he refuses to ask the state for leniency. He also rejected the original 1997 plea deal offered to him by prosecutors, since he would be required to plead guilty.
In the second half of the nineties, both Clark and the getaway driver for the robbery, Thad Lucas, evaded the charges of murder and the death penalty for agreeing to testify for the state. In exchange, they were given shorter sentences. Meanwhile, Clark designated Cromartie as the shooter, although there was never any physical evidence that linked him to the murder. Cromartie was still convicted. Lucas and Clark both completed time in prison, but were released in the early 2000s, according to the Atlanta Journal-Constitution.
Although Clark has been mainly out of sight of the public since he was accused of violating his parole back in 2015, Lucas came forward in an affidavit this week to affirm that he once overheard Clark confess, and said that he couldn’t be sure that Cromartie was the shooter after all.
“I keep hearing that Jeff Cromartie is the shooter, and I know that is probably not true,” Lucas wrote. He said he didn’t come forward earlier because he didn’t think it would change anything, but then news coverage compelled him to speak out.
Slysz’s daughter, Elizabeth Legette, has also said she supports DNA testing to prevent another “meaningless” death. “My father’s death was senseless. Executing another man would also be senseless, especially if he may not have shot my father,” she wrote in a July 16 letter released by Cromartie’s defense team.
Cromartie’s lawyers also appealed Friday, stating that in 1997, Lucas told the Georgia Board of Pardons and Probation in 1997 that Clark, not Cromartie, shot Slysz.
State attorneys, however, have argued that Lucas does not know what happened in the store on the night of the shooting (he was waiting in the car while Clark ran inside with Cromartie) and that the claims do not conform to the standard where the court would review the evidence or would hold a new trial.
As early as September, a judge ruled that the attorneys had failed to review DNA evidence and that the verdict was ratified by the Georgia Supreme Court this month. Southern Judicial Circuit Senior Judge Frank Horkan, who had originally headed Cromartie’s death penalty trial, also said in September that Cromartie waited too long to request DNA testing and that testing would make no difference.
Cromartie could still be executed, even if DNA evidence were to prove he didn’t pull the trigger due to Georgia’s law of parties, which holds people legally responsible, also if they are involved in a crime and not the main culprit of a crime such as murder.
Currently, Cromartie is scheduled to die by lethal injection at 7.00 pm EST. in Georgia Diagnostic Prison in Jackson. He is said to be the third prisoner to be executed in Georgia in 2019, and at least the second high-profile execution of a black man who insists he can be acquitted by DNA evidence. Rodney Reed, a Texas man on death row who claims to be innocent of the murder he was indicted, is due to be executed on November 20. According to the Innocence Project, a legal organization that’s representing Reed in his call to survive, DNA evidence has exonerated at least 20 people in death row.