Attorneys for condemned killer Keith Tharpe are trying to halt his Sept. 26 execution with arguments that a juror on the case was racist and voted for death because Tharpe was African-American.
(CNN) The Supreme Court declined on Monday to take up the case of Georgia death row inmate Keith Tharpe, who claims a juror voted to put him to death because of his race.
At issue is an affidavit from an interview conducted seven years after Tharpe's sentencing. Juror Barney Gattie used a racial slur in reference to African-Americans. He also questioned whether "black people even have souls."
The court had heard this case back in 2018, and revived Tharpe's case over the dissents of Justices Thomas, Alito and Gorsuch.
Now the state of Georgia is free to set an execution date.
Justice Sonia Sotomayor agreed with the court not to take up the case, but she wrote separately to say that she was "profoundly troubled by the underlying facts of the case."
"It may be tempting to dismiss Tharpe's case as an outlier, but racial bias is a familiar and recurring evil," Sotomayor wrote. "That evil often presents itself far more subtly than it has here. Yet Gattie's sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arrest demonstration that racism can and does seep into the jury system."
When the court first heard the case in 2018, it said that Tharpe's legal team had produced a "remarkable" affidavit from a juror, written after the conviction, that presented a "strong factual basis" for the argument that Tharpe's race had affected the juror's vote.
The majority then cautioned, however, that Tharpe faced "a high bar in showing that jurists of reason could disagree" with the state court's opinion.
Upon further review, the lower court again ruled against Tharpe, finding he had not met the procedural burdens necessary to reopen his case.
The court also held that a 2017 Supreme Court opinion that said the secrecy of jury deliberations can be pierced when there is evidence that a juror relied on racial animus did not apply retroactively to Tharpe's case.
Source: cnn.com, Ariane de Vogue, March 18, 2019
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