When racism lurks in the heart of a death penalty juror, does a killer deserve to live?

“Who knows what evil lurks in the hearts of men?” This single, sinister question, asked over a sepulchral-sounding musical score, was rhetorical; for after a dramatic pause and a malevolent cackle, the narrator smugly informed the audience: “The Shadow knows.”

And so it was with this somber admonition on September 26, 1937, that the gritty, crime-fighting character dubbed “The Shadow,” whose exploits had previously been limited to pulp fiction magazines, burst into American consciousness with his own radio program. The uber-successful first episode called “The Death House Rescue” would lead to a run of 664 more installments over 18 seasons.

Exactly 80 years later another story about a scheduled execution, this time one that is all too real, is playing out; but, unlike that first episode of “The Shadow,” there is little chance of a tidy and fair resolution (much less “a death house rescue”). Indeed, absent an unlikely intervention, the state of Georgia will execute death row inmate Keith Tharpe by lethal injection on September 26, 2017.

Also, unlike the condemned man in “The Shadow’s” fictional “Death House Rescue,” no one is arguing that Tharpe is innocent. Nevertheless, Tharpe’s attorneys argue he shouldn’t be put to death because, as has been widely reported, after Tharpe’s conviction and death sentence, Tharpe’s lawyers secured a prejudice-laden sworn affidavit from a now-deceased juror by the name of Barney Gattie.

Despite having affirmed under oath during jury selection that he could be fair and impartial — as all jurors in a criminal case must — Gattie swore in his affidavit, that there are two kinds of black people in the world: “good black folks” and “ni**ers.” Gattie attested that the victim’s family in Tharpe’s case belonged to this first group of black people whereas Tharpe belonged to the latter, and further, that this was precisely the warped logic he used to sentence Tharpe to death. Finally, as if these despicable admissions weren’t sufficiently outrageous — and reason enough to commute Tharpe’s death sentence to life without the possibility of parole, because it was so odiously and impermissibly tainted by race — Gattie’s affidavit abominably asserts: “After studying the Bible, I have wondered if black people even have souls.”

Huge problem, right? Red flags and alarm bells are sounding all over, aren’t they? Obviously a clear moral imperative exists to call off this 21st century style lynching? Nope. At least, not yet. And, given our increasingly prosecution-leaning, capital punishment-enabling Supreme Court, maybe not at all.

You see, according to asinine arguments advanced by blood-thirsty prosecutors — which thus far both state and federal courts have adopted — Gattie’s vile and hateful comments were merely “racially insensitive offhand remarks.” To fully wrap your mind around this deplorable position, all you have to do is take a break from reality and cue your favorite off-color, cringe-worthy soliloquy by Archie Bunker. (You remember that affable but avowedly racist, anti-Semitic television character from the ‘70s, don’t you?).

Georgia prosecutors are basically arguing that, just like Archie Bunker, Gattie wasn’t really such a bad guy, was he? If the bigoted but big-hearted Archie Bunker were a real person we would all, each and every one of us, surely trust him to be a fair and impartial juror . . . wouldn’t we? Especially in the case of a black man on trial for his life?

Moreover, Georgia prosecutors are insisting Tharpe’s death sentence remains kosher because, after the revolting details of his affidavit were revealed, Gattie subsequently tried to explain it all away by testifying he was drunk. Specifically, Gattie claimed he was inebriated — both on the day he initially spoke to Tharpe’s defense team — and then, again, on the day he reviewed his racially tinged affidavit and signed it. Thus, not unlike The Shadow’s power to “cloud men’s minds,” prosecutors in Georgia maintain as the actor/producer Mel Gibson (infamously) once did, that it was only because Gattie was wasted that he made his racially repugnant statements.

This is a tough sell — tougher even than that whole ridiculous Archie Bunker bit — because as the saying goes, “a drunken man’s words are a sober man’s thoughts” (or alternatively, as was commonly said in Latin many hundreds of years ago, “in vino, veritas“). Indeed, as Belisa Vranich, a clinical psychologist who specializes in alcohol addiction told ABC News at the time of Gibson’s highly publicized highway rant: “People dredge up feelings and sentiments from somewhere deep in their brains, so what one says or does certainly reflects what’s going on deep down. Alcohol can most definitely act as a truth serum — something that allows people to say what is truly on their mind.”

And it is with that truism in mind, one that anyone who has ever been drunk before already knows, that we arrive full circle to the question that the Supreme Court of the United States will likely soon be forced to consider about the pending execution of Keith Tharpe: What evil lurked in the heart of Barney Gattie? The answer, of course, is hatred — and racism — as rank and real as it is repulsive. And you don’t need to be The Shadow or even a Supreme Court justice to know that.

Source: The Telegraph, Opinion, Stephen Cooper, September 21, 2017. Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California. Follow him on Twitter at @SteveCooperEsq

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde