ATLANTA — The U.S. Supreme Court on Monday declined to hear an appeal by Georgia inmate Keith Tharpe who contends a juror's racist views prejudiced his decision to send Tharpe to death row.
The unanimous decision was issued with a concurrence written by Justice Sonia Sotomayor, who said she was “profoundly troubled by the underlying facts of this case.” She also expressed frustration that the jury bias claims have never been considered on their merits.
The now-deceased juror, Barney Gattie, once said, “After studying the Bible, I have wondered if black people even have souls,” court filings say.
Gattie, who signed a sworn affidavit documenting that comment, later backed off his statement that he voted to sentence Tharpe to death because he “wasn’t in the ‘good’ black folks category.” In his initial sworn statement, Gattie used racial slurs when referring to African-Americans.
Georgia can now set a new date for Tharpe to be put to death by lethal injection, although his lawyers are likely to file more appeals to try and stop the execution.
In September 2017, the high court issued an extraordinary stay of execution in Tharpe’s case. Its decision came down three hours after Tharpe was supposed to have been put to death by lethal injection and after he had eaten what he believed to be his last meal.
Tharpe sits on death row for a murder he's been convicted of committing almost 29 years ago.
On Sept. 25, 1990, 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 their jobs in Macon.
Tharpe blocked their car, dragged the 29-year-old Freeman out and fatally shot her three times with a shotgun. Moments later, Freeman’s husband drove by, taking their children to school, and he saw his wife’s body in a ditch. By then, Tharpe had kidnapped his wife.
He allegedly sexually assaulted her on the side of the road and drove her to Macon, telling her to take money out of her credit union account for him. Instead, she called police and Tharpe was soon arrested.
Tharpe’s case went to trial a little more than three months after his arrest — a short span of time unheard of today for a defendant facing a capital prosecution. During the trial, jurors found Tharpe guilty of murder and kidnapping and sentenced him to death on Jan. 10, 1991.
Seven years after the trial, Tharpe’s lawyers interviewed Gattie, a white man who served on the jury.
Gattie, who said his wife warned him about using racial slurs when talking about black people, used a racial slur when referring to Tharpe. “In my experience, there are two types of black people: 1. Black folks and 2. (n-word),” he said.
Gattie also said that Freeman, the murder victim, came from a family of “nice black folks. … 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 which he changed his tune.
“I believe Keith Tharpe was a cold, calculated murderer,” Gattie said. “I did not vote to impose the death penalty because he was a black man.”
After the U.S. Supreme Court stayed Tharpe’s execution, the high court sent his case back to the federal appeals court in Atlanta.
Last August, a three-judge panel of the 11th U.S. Circuit Court of Appeals unanimously rejected Tharpe’s juror bias claims, saying they were barred on procedural grounds. The court declined to hear arguments on the issue and said a 2017 opinion by the U.S. Supreme Court that allows courts to consider evidence of racial animus by jurors could not be applied retroactively to Tharpe’s case.
Even so, one 11th Circuit judge expressed discomfort with the outcome. “Gattie’s repugnant comments were rife with racial slurs (and) deeply seeded views regarding integration, interracial marriage and the like; a comment inquiring whether black people even had souls; and even an explicit statement that the juror’s decision to sentence Tharpe to death was at least, in part, based on race,” Judge Charles Wilson wrote separately.
Absent intervention from the U.S. Supreme Court, Wilson said, "it seems that we would have approved of the idea that Mr. Gattie's affidavit would not have amounted to prejudice. I do not stand by that idea."
On her concurring opinion issued Monday, Sotomayor expressed similar sentiments.
Tharpe’s case “has uncovered truly striking evidence of juror bias,” Sotomayor wrote. ” … These racist sentiments, expressed by a juror entrusted with a vote over Tharpe’s fate, suggest an appalling risk that racial bias swayed Tharpe’s sentencing. The danger of race determining any criminal punishment is intolerable and endangers public confidence in the law.”
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