The U.S. Supreme Court on Monday declined to hear an appeal by Georgia inmate Keith Tharpe who contends a juror's racist views helped send Tharpe to death row.
Georgia can now set a new execution date for Tharpe, who was convicted in 1991 of killing his sister-in-law. It’s unclear when they will do so.
The high court’s unanimous decision Monday was accompanied by a concurring opinion from Justice Sonia Sotomayor, who said she was “profoundly troubled by the underlying facts of this case.” Tharpe, she said, “has uncovered truly striking evidence of juror bias.”
That juror, Barney Gattie, once said, “After studying the Bible, I have wondered if black people even have souls.” Gattie, who is now deceased, made the remark in a sworn statement in which he also used a racial slur when referring to African-Americans.
Gattie, who was white, also said he voted to sentence Tharpe to death because he “wasn’t in the ‘good’ black folks category.”
Even though Gattie later backed off that statement, Sotomayor said the juror’s comments demonstrate that “racism can and does seep into the jury system.”
Such sentiments “suggest an appalling risk that racial bias swayed Tharpe’s sentencing,” the justice wrote. “The danger of race determining any criminal punishment is intolerable and endangers public confidence in the law.”
Sotomayor expressed frustration that Tharpe’s juror bias claim has never been considered on its merits. Lower courts have declined to hear the issue on grounds it was raised too late in the appeals process. The federal appeals court in Atlanta also ruled that a 2017 Supreme Court opinion that ordered a new trial because of a Colorado juror’s racial animus could not be applied retroactively to Tharpe’s case.
Because she saw “little likelihood” that the high court would reverse those prior rulings, Sotomayor joined in the decision to deny Tharpe’s appeal.
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“As this may be the end of the road for Tharpe’s juror bias claim,” Sotomayor added, “we should not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.”
Tharpe’s attorneys expressed outrage at the high court’s decision.
“Allowing Mr. Tharpe’s death sentence to stand is an affront to the fairness and decency to which we, as a society, should aspire,” Marcia Widder, one of his attorneys, said. “True justice would not permit the state of Georgia to execute Mr. Tharpe on the basis of this record.”
Tharpe’s legal team plans “to pursue all available options” going forward, she said.
Tharpe was previously scheduled to be executed in September 2017. But the Supreme Court issued an extraordinary stay of execution three hours after he was to have been put to death by lethal injection and after he had eaten what was expected to be his last meal.
The high court sent Tharpe’s case back to 11th U.S. Circuit of Appeals, which rejected his appeal.
The case dates back to Sept. 25, 1990, when Tharpe drove a borrowed pickup truck to intercept his estranged wife and her sister-in-law, Jaquelin Freeman, on a Jones County road as they set out for work.
Tharpe blocked their car, and fatally shot the 29-year-old Freeman three times with a shotgun. Tharpe then kidnapped his wife and allegedly sexually assaulted her on the side of the road. He drove her to Macon and ordered her to take money out of her credit union account for him. Instead, she called police and Tharpe was soon arrested.
Seven years after the trial, Tharpe’s lawyers interviewed Gattie, one of the jurors.
“In my experience,” Gattie said in a sworn statement, “there are two types of black people: 1. Black folks and 2. (n-word).”
Freeman came from a family of “nice black folks,” Gattie said of the murder victim. “If they had been the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much. My feeling is, what would be the difference?”
Gattie said he felt Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did.” (Georgia has changed its method of execution to lethal injection since Tharpe’s 1991 trial.)
After learning about Gattie’s affidavit, state attorneys rushed to his house and got him to sign yet another sworn statement. In this one, Gattie changed his tune.
“I believe Keith Tharpe was a cold, calculated murderer,” he said. “I did not vote to impose the death penalty because he was a black man.”
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