The Problem of Racial Bias in Jury Trials
February 4, 2020 by Valencia Richardson
By XINMIN MA*
On January 24, 2020, Keith Tharpe, a death row inmate who claimed that his conviction was the result of a juror’s racial bias, died due to complications of cancer. In 1991, Tharpe was sentenced to death for malice murder and aggravated kidnaping. More than seven years after his conviction, Tharpe’s lawyer interviewed a juror in that case, who signed an affidavit where that juror called Tharpe the n-word and claimed that Tharpe “should get the electric chair for what he did.” Tharpe filed the juror-bias claim to courts but his claim was never evaluated on the merits because of procedural bars.
Tharpe’s story calls attention to the problem of racial bias in jury verdicts. James Forman noted that the rate of incarcerating blacks in 2011 was eight times greater than the rate in 1954, when Brown v. Board of Education was decided. According to another study, African Americans account for forty percent of the United States incarcerated population while representing only thirteen percent of the United States’ population. This disparity strongly implies that a jury’s racial bias, at least in some circumstances, can taint its deliberation. Indeed, race historically determined which witness could testify, and what punishments would be imposed. Given such history, it remains an open question whether, as a practical matter, it is possible to completely eliminate racial bias in jury trials.
The Sixth Amendment provides that the accused shall enjoy impartial jury in all criminal prosecutions. All states provide procedural devices to combat jury bias during trials. In Pena-Rodriguez v. Colorado, the Supreme Court held that where a juror makes a clear statement that indicated he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment required the trial court to consider the evidence of the juror’s statement notwithstanding the final verdict. This case, however, only created a limited exception to the general rule that precludes jurors from offering testimony to impeach their own verdict. It also does not help Tharpe or other similar defendants in the Eleventh Circuit whose cases were decided before Pena-Rodriguez, as the circuit court held that Pena-Rodriguez had no retroactivity.
Additionally, Pena-Rodriguez does not help civil cases where the right of jury trial was also provided. Title VII of the 1964 Civil Rights Act, for example, provides the right to a jury trial in employment discrimination cases involving compensatory or punitive damages. How to better resolve the problem of jury bias in the context of civil litigations is still an open question subject to debates. One point, however, is clear. As Justice Sotomayor suggested, racial bias is “a familiar and recurring evil”, and the work of purging it from the administration of justice is far from done.
* Staff Editor, GEO. J. L. & MOD. CRIT. RACE PERSP.; J.D. Candidate, Georgetown University Law Center (L’21), © 2020, Xinmin Ma.
 See Artemis Moshtaghian & Christina Maxouris, A Georgia Death Row Inmate Who Argued a Racist Juror Voted for His Sentence Has Died, Attorneys Say, CNN, (Jan. 26, 2020), https://www.cnn.com/2020/01/26/us/georgia-death-row-inmate-dies-racist-juror/index.html.
 See Tharpe v. Sellers, 138 S. Ct. 545, 548 (2018) (Thomas J., dissenting).
 Grace Manning, Note, Valuing Procedure Over Substance: Racial Bias in The Capital Jury Room, 56 Am. Crim. L. Rev. Online 52, 52 (2019).
 James Forman, Jr., The Black Poor, Black Elites, and America’s Prisons, 32 Cardozo L. Rev. 791, 792-93 (2011).
 Katherine Brosamle, Fairness over Finality: Peña-Rodriguez v. Colorado and the Right to an Impartial Jury, 51 Loy. L.A. L. Rev. 489, 489 (2018).
 See I. Bennett Capers, Critical Race Theory and Criminal Justice, 12 Ohio St. J. Crim. L. 1, 2 (2014).
 U.S. Const. amend. VI.
 See Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017).
 Grace Manning, supra note 4, at 54.
 Roy L. Brooks, A Critical Race Theory Critique of the Right to a Jury Trial Under Title VII, 5 U. Fla. J. of L. & Pub. Pol. 156, 162-63 (1993).
 Tharpe v. Ford, 139 S. Ct. 911, 913 (2019) (Sotomayor, J., concurring) (mem.).