Juror’s Racist Tirade Nets Supreme Court Relief for Death-Row Inmate

Undated booking photograph of Keith Tharpe from the Georgia Department of Corrections.

WASHINGTON (CN) – Quoting a juror’s signed affidavit questioning whether black people have souls, the U.S. Supreme Court ordered a hearing Monday on whether his involvement in a capital trial prejudiced its outcome.

While the 3-page opinion focuses wholly on what is described as juror Barney Gattie’s “remarkable affidavit,” three of the court’s Republican judges use a 13-page dissent to lay out the gruesome crime of which Keith Tharpe was convicted in Georgia.

It says Tharpe ambushed his estranged wife in 1990 as she was driving to work with her sister. Before kidnapping and raping his wife, Tharpe killed his in-law, Jaqueline Freeman. Rolled into a ditch, Freeman’s body was found a short time later by her husband. He had been driving the couple’s children to school.

An excerpt from the affidavit signed by Georgia juror Barney Gattie. (Keith Tharpe’s high school yearbook photo. (Courtesy of Georgia Resource Center)

Justice Clarence Thomas notes in Monday’s dissent that it was more than seven years after Tharpe was convicted and put on death row that his attorneys interviewed juror Gattie.

Gattie has since died but told the attorneys “there are two types of black people: 1. Black folks and 2. Niggers.”

He went on to say that some of his fellow jurors “voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t my reason.”

“After studying the Bible, I have wondered if black people even have souls,” Gattie said, according to his signed affidavit.

These remarks remain unretracted, but Thomas notes that Gattie did claim later that he felt the lawyers had deceived him.

Thomas also says Gattie signed the affidavit but “never swore to [it] nor was [he] ever asked if [the] statement was true and accurate.” The affidavit was signed after Gattie had consumed “seven or more beers” moreover, and Gattie later attested that many of his statements “were taken out of context and simply not accurate.”

The juror’s second affidavit, obtained by the state days after the first, quotes Gattie as saying he voted for Tharpe to be executed because the evidence presented at trial justified it and because Tharpe showed no remorse.

Keith Tharpe’s high school yearbook photo. (Courtesy of Georgia Resource Center)

Tharpe brought a federal habeas petition after the state court denied his bid for postconviction relief.

Though his first attempt failed — the U.S. Supreme Court denied Tharpe a writ of certiorari last year — Tharpe then argued that new precedent created extraordinary circumstances that entitled him to reopen federal habeas proceedings.

After a federal judge denied his motion, the 11th Circuit denied Tharpe a certificate of appealability.

The Supreme Court stayed Tharpe’s execution in September 2017 and summarily vacated the 11th Circuit’s ruling against him Monday.

“Gattie’s remarkable affidavit — which he never retracted —  presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict,” the unsigned opinion states. “At the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court’s factual determination was wrong. The Eleventh Circuit erred when it concluded otherwise.”

Tharpe’s attorney Brian Kammer, executive director of the Georgia Resource Center, applauded the outcome. “We are thankful that the U.S. Supreme Court recognized the serious implications for fundamental fairness of the clear evidence of racial animus on the part of one of the jurors who sentenced Mr. Tharpe to death,” Kammer said in a statement. “We look forward to pressing Mr. Tharpe’s case in the Eleventh Circuit per the U.S. Supreme Court’s direction.”

Monday’s ruling emphasizes that it offers no view on whether Tharpe will succeed on the merits.

“It may be that, at the end of the day, Tharpe should not receive a COA,” the opinion says, abbreviating certificate of appealability. “And review of the denial of a COA is certainly not limited to grounds expressly addressed by the court whose decision is under review. But on the unusual facts of this case, the Court of Appeals’ review should not have rested on the ground that it was indisputable among reasonable jurists that Gattie’s service on the jury did not prejudice Tharpe.”

Keith Tharpe and a granddaughter during a prison visit. (Courtesy of Georgia Resource Center)

Thomas, joined by Justices Samuel Alito and Neil Gorsuch, called this a mistake.

“One might wonder why the court engages in this pointless exercise,” he wrote. “The only possible explanation is its concern with the ‘unusual facts’ of this case, specifically a juror affidavit that expresses racist opinions about blacks. The opinions in the affidavit are certainly odious. But their odiousness does not excuse us from doing our job correctly, or allow us to pretend that the lower courts have not done theirs.

“The responsibility of courts is to decide cases, both usual and unusual, by neutrally applying the law. The law reflects society’s considered judgments about the balance of competing interests, and we must respect those judgments. In bending the rules here to show its concern for a black capital inmate, the Court must think it is showing its concern for racial justice. It is not. Its summary vacatur will not stop Tharpe’s execution or erase the ‘unusual fac[t]’ of the affidavit. It will only delay justice for Jaquelin Freeman, who was also black, who is ignored by the majority, and who was murdered by Tharpe 27 years ago.”

Tharpe’s case is the only one granted certiorari Monday. The court denied relief to dozens of other cases.

Georgia is being represented in the above matter by Senior Assistant Attorney General Sabrina Graham. A spokesman for Graham’s office said they will address the court’s concerns in subsequent proceedings if asked to do so.

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