Supreme Court Reopens Death Sentence of Black Convict
Jan 10 2018 by Kathy Alvarado
The summary decision came in the case of Keith Tharpe, who in 1991 was sentenced to death for the murder of his sister-in-law.
Study after study shows that juries are far more likely to convict a black person for murder and far more likely to give them the death penalty, but the Supreme Court has done nearly nothing to help fix that. Gattie signed an affidavit, although he testified he ruled in favor of Tharpe's conviction due to the evidence. Reportedly, Gattie used racial slurs when describing Tharpe, and alleged his knowledge of the Bible led him to wonder "if black people even have souls".
The court's only black judge, Clarence Thomas, disagreed with Monday's ruling, arguing in a 13-page dissent that by delaying the execution judges were engaging in "ceremonial handwringing".
The U.S. Supreme Court had already halted Tharpe's scheduled execution the night it was initially scheduled in September.
Previously, a state post-conviction court rejected Tharpe's petition, finding that he could not prove juror misconduct because Georgia law doesn't allow parties to impeach jury verdicts with post-trial testimony, and he did not raise the issue on direct appeal.
On Sept. 25, 1990, Tharpe drove a pickup truck to intercept his estranged wife and her sister in law, Jaquelin Freeman, as they set out for their jobs in Macon.
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Tharpe then kidnapped his wife and allegedly sexually assaulted her. They found that the jury had not been prejudiced against Tharpe. Seven years later, defense attorneys interviewed juror Barney Gattie, who is white. He said "there are two types of black people: 1". Black folks and 2. Gattie also said that Tharpe "wasn't in the good black folks category in my book..."
The high court's majority opinion said Gattie, who has since died, never retracted his "remarkable affidavit", which provides evidence that "Tharpe's race affected Gattie's vote for a death verdict". "At the very least", the court reasoned, "jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court's factual determination was wrong".
In dissent, Thomas said the lower courts had properly considered and disposed of Tharpe's claims.
Lower courts turned down Tharpe's appeals based on Gattie's statement, which he said had been taken after a long day of drinking.
The majority's decision "merely delays Tharpe's inevitable execution", Thomas said.
Thomas wrote that his colleagues "must be disturbed by the racist rhetoric in that affidavit, and must want to do something about it". And review of the denial of a COA is certainly not limited to grounds expressly addressed by the court whose decision is under review.