Justices Order New Look at Death Sentence After Racial Slur

(Bloomberg) -- A divided U.S. Supreme Court ordered a new look at a Georgia inmate's death sentence after one of the jurors referred to the defendant using a racial slur and questioned whether black people have souls.

The justices, over three dissents, said a federal appeals court was too quick to conclude that racial prejudice didn't infect the jury's decision that Keith Leroy Tharpe should be executed for a 1990 murder. The majority, however, said Tharpe still faces a "high bar" to get the death sentence set aside given how long his lawyers waited to raise the issue.

The juror, Barney Gattie, said in a sworn statement seven years after the 1991 trial that "there are two types of black people: 1. Black folks and 2. N----rs." He said the victim, Jaquelin Freeman, came from "what I would call a nice Black family," while Tharpe "wasn't in the ‘good' black folks category in my book."

Gattie added, "After studying the Bible, I have wondered if black people even have souls." Tharpe's lawyers interviewed Gattie while working on appeals.

In an unsigned opinion, the Supreme Court said the juror's statement "presents a strong factual basis for the argument that Tharpe's race affected Gattie's vote for a death verdict." The court halted Tharpe's execution in September.

Tharpe was convicted of shooting Freeman, his sister-in-law, in 1990 while in a rage because his wife had left him. After killing Freeman, Tharpe drove off with his wife and raped her, prosecutors said.

In sending the case back to the appeals court, the justices said Georgia officials still have other arguments for not reopening the case at this stage. The case has bounced up and down the court system, and Tharpe is now using a procedural device that requires him to show "extraordinary circumstances."

Three dissenting justices -- Clarence Thomas, Samuel Alito and Neil Gorsuch -- said the order merely delays an "inevitable" execution.

"By remanding this case to the court of appeals for a useless do-over, the court is not doing Tharpe any favors," Thomas wrote for the group. "And its unusual disposition of his case callously delays justice for Jacquelin Freeman, the black woman who was brutally murdered by Tharpe 27 years ago."

Georgia Attorney General Christopher Carr said Tharpe and his lawyers should have raised the juror-bias issue long ago. Carr also said that Gattie had been drinking at the time he signed the statement and that later testimony he provided didn't show evidence of racial animus.

In March, the Supreme Court opened the way for greater post-trial scrutiny of jury verdicts in criminal cases, ruling that judges can consider evidence that a juror made racially biased comments during deliberations.

The case is Tharpe v. Warden, 17-6075.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo, Justin Blum

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