(CN) – Justice Sonia Sotomayor said Monday she agrees with the Supreme Court’s decision not to hear the appeal of a black death-row inmate who claims he was convicted by a jury that included an outspoken racist, but wrote in a concurrence that she is “profoundly troubled by the underlying facts” of the case.
The high court denied Georgia inmate Keith Tharpe’s petition for a writ of certiorari for a second time after vacating an 11th Circuit ruling against him last year.
According to court records, 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.
It was more than seven years after Tharpe was convicted and put on death row in 1991 that his attorneys interviewed now-deceased juror Barney Gattie.
Gattie 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.
The Supreme Court first denied Tharpe’s petition for a writ of certiorari in 2017, and did so again Monday after sending the case back to the 11th Circuit.
A three-judge panel in the Atlanta-based appeals court unanimously rejected Tharpe’s juror-bias claim in August on procedural grounds. The judges said the Supreme Court’s 2017 ruling in Pena-Rodriguez v. Colorado that allows consideration of racial bias in a jury does not apply retroactively.
Justice Sotomayor noted in a five-page concurrence Monday that Tharpe’s appeal does not focus on the merits of his racial-animus claim but instead asks the high court to weigh the 11th Circuit’s procedural ruling.
“Even setting aside whether Pena-Rodriguez is retroactive, he would have to establish that he arguably showed sufficient cause to excuse his procedural default,” she wrote. “I see little likelihood that we would reverse the court of appeals’ factbound conclusion that Tharpe did not make that showing.”
But the liberal justice wrote that she was nevertheless “profoundly troubled by the underlying facts of this case” and said the court “should not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.”
“Gattie’s sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arresting demonstration that racism can and does seep into the jury system. The work of ‘purg[ing] racial prejudice from the administration of justice’ is far from done,” Sotomayor said, quoting the Pena-Rodriguez ruling.
Tharpe’s attorney, Marcia Widder with the Georgia Resource Center, said in a statement Monday that the rejection of her client’s appeal “takes giant steps backwards from the court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice.”
“Allowing Mr. Tharpe’s death sentence to stand is an affront to the fairness and decency to which we, as a society, should aspire,” Widder said. “True justice would not permit the state of Georgia to execute Mr. Tharpe on the basis of this record."
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