The U.S. Supreme Court, in a stunning turn of events, granted a stay of execution Tuesday night to condemned Georgia killer Keith Tharpe, three and a half hours after he was scheduled to be put to death by lethal injection.
In a 6-3 decision, the court’s justices were apparently concerned about claims that one of Tharpe’s jurors was racist and sentenced Tharpe to death because he is African-American.
Reliably conservative Chief Justice John Roberts agreed to grant the temporary stay along with Justices Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Three justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — dissented.
The high court will now decide whether to hear Tharpe’s appeal. If it doesn’t, the court said the stay of execution shall terminate automatically.
Prison officials told The Atlanta Journal-Constitution they expect the Supreme Court to decide in a few weeks whether to hear the case or whether to let the stay of execution expire.
But the Georgia attorney general’s office said it did not have a “timeline” as to when or if this matter might be heard.
Tharpe’s lawyers were overjoyed with the decision. “We’re gratified the court understands this case merits thoughtful consideration outside the press of an execution warrant,” said Brian Kammer, one of Tharpe’s attorneys.
“We are extremely thankful that the court has seen fit to consider Mr. Tharpe's claim of juror racial bias in regular order."
Kristina Roth, senior program officer with Amnesty International USA, had this to say:
“One of the many ways that the death penalty system is irrevocably broken is the discriminatory way it is applied.
“Keith Tharpe’s case is a chilling example of how callous the state can be in matters of life and death,” she said.
“While the Supreme Court has granted a temporary reprieve to Keith Tharpe, this cannot be allowed to happen again. Capital punishment is cruel and inhuman and should be left in the dustbin of history once and for all,” Roth said.
Tharpe’s lawyers are appealing both state and federal court rulings that rejected claims that a racist juror voted for a death sentence because Tharpe is African-American, and that Tharpe is ineligible to be executed because he is intellectually disabled.
Late Tuesday afternoon, the Georgia Supreme Court, in its own 6-3 ruling, declined to hear Tharpe’s appeals, explaining that other courts had already ruled against him on those issues and that his new claims were barred on procedural grounds.
Meanwhile, at the Georgia Diagnostic and Classification Prison near Jackson where the state’s Death Row is located, officials had begun the usual routine followed during the hours before an execution.
Tharpe spent the afternoon visiting with eight family members, five friends, three members of the clergy and seven members of his legal team — after which he received clean clothes. He ate his final meal, but said no to a sedative.
He also pre-recorded a final statement.
Outside the prison, about 20 anti-death-penalty opponents and supporters of Tharpe held a vigil. They left almost immediately upon learning there would be no execution Tuesday night.
Late Monday, the state Board of Pardons and Paroles turned down Tharpe's pleas — as well as pleas from about 20 friends and relatives — to spare his life. They insisted the 59-year-old is not the same man who murdered his sister-in-law, Jacquelyn Freeman, 27 years ago. They wrote in his clemency petition that Tharpe is now a man of God and every day he regrets what he did on Sept. 25, 1990, on a Jones County road.
Having failed before the Parole Board, Tharpe continues to push in the courts to stop his execution for another reason: his lawyers claim at least one juror who voted to convict and condemn him may have been a racist.
While Tharpe's victim — like him — was African-American, a juror later told Tharpe's lawyers that Freeman had come from a "good black family." The juror, now deceased, went on to say that had she been like Tharpe, whom he described using a slur, he might not have agreed to a death sentence, according to filings. The next day, when that juror was interviewed by the state's lawyers, he said he was drunk when he spoke with Tharpe's attorneys and racism had no role in his vote to convict and condemn Tharpe, a father of five daughters.
In late August 1990, Tharpe’s wife had moved in with her mother to escape their violent marriage. On Sept. 24, 1990, despite a court order that he not contact his estranged wife, Tharpe told her in a phone call if she wanted “to play dirty,” he would “show her what dirty was,” according to court records and testimony.
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The next morning, Tharpe drove a borrowed pickup to intercept his estranged wife and her brother’s wife as they began their drive to their jobs in Macon. He blocked their car and then dragged Freeman out. Tharpe shot the 29-year-old Freeman three times, reloading each time after he pulled the trigger on his shotgun.
Freeman’s body was left in a ditch to be discovered moments later by her husband as he drove their children to school.
By then Tharpe had kidnapped his wife. Later, he allegedly sexually assaulted her while parked on the side of a road in a nearby county.(Tharpe was never tried for charges that he raped his estranged wife.)
A Jones County jury convicted him of murder and kidnapping three months later.
Tharpe’s lawyers have already unsuccessfully challenged his conviction and sentence by arguing that race played a factor in the jury’s decisions. Those appeals were decided, however, before the U.S. Supreme Court ruled earlier this year that a jury’s decision could be impeached if racism was behind it.
But so far, no state or federal court has allowed him to relitigate that issue.
If he is executed, Tharpe will be the second man to die by lethal injection this year in Georgia. Last year the state executed a record nine murderers.
