A federal appeals court on Tuesday rejected the arguments of a Georgia death row inmate whose scheduled execution was temporarily halted last year by the U.S. Supreme Court.
Keith Leroy Tharpe, known as “Bo,” had been scheduled to die on Sept. 26, but the Supreme Court stepped in and granted him a temporary stay hours after the appointed execution time had passed. The justices voted 6-3 in January to order the 11th U.S. Circuit Court of Appeals in Atlanta to take up his case, giving him another chance to raise claims of racial bias on his jury.
Tharpe, 59, was convicted of murder and two counts of kidnapping in the September 1990 slaying of his sister-in-law, Jacquelyn Freeman.
His appeal arises from interviews his legal team did in 1998 with Barney Gattie, a white juror. Gattie freely used racial slurs and said his study of the Bible had led him to question “if black people even have souls,” according to court filings. Gattie signed an affidavit, though he later testified that he voted to sentence Tharpe to death because of the evidence against him.
State and federal courts had ruled that Gattie’s statements and some other evidence cannot be used because of a state evidentiary rule that prohibits jurors from impeaching their verdicts. Tharpe’s lawyers argued that two recent U.S. Supreme Court rulings opened the door for that evidence to be admitted.
The Supreme Court ruled in March 2017 that if a juror states clearly that he relied on racial stereotypes or animus to reach a conviction, the rules that bar jurors from impeaching their verdicts can be set aside so the judge can determine whether the right to a fair trial was upheld.
A federal judge last year declined to reopen the case, and Tharpe’s lawyers appealed to the 11th Circuit. A three-judge panel of the 11th Circuit declined to halt Tharpe’s execution, saying he didn’t make a “substantial showing” that his constitutional rights were denied. The appeals court also said that if Tharpe wanted to rely on the Supreme Court ruling from March 2017, the issue would have to be taken up first in state court rather than federal court.
Tharpe’s lawyers appealed the 11th Circuit ruling to the Supreme Court and also tried unsuccessfully to get a state court to examine the alleged juror racial bias.
The Supreme Court ruled in January that the 11th Circuit had been mistaken. The unsigned majority opinion noted that Gattie never retracted his “remarkable affidavit” and that it provides strong evidence that “Tharpe’s race affected Gattie’s vote for a death verdict.”
Justice Clarence Thomas wrote in a dissenting opinion, joined by Justices Samuel Alito and Neil Gorsuch, that the court was letting Gattie’s “odious opinions” trump the right approach to the law. He predicted the 11th Circuit would reach the same conclusion and deny Tharpe’s appeal on other grounds and referred to his colleagues’ action as a “useless do-over.”
Indeed, the 11th Circuit panel on Tuesday said it was denying Tharpe’s appeal for the other reason that it originally cited, that his arguments based on the March 2017 Supreme Court opinion had not been exhausted in state courts. The appeals court said its denial allows Tharpe to pursue those arguments in the state courts.
Brian Kammer, a lawyer for Tharpe, did not immediately respond to email and phone messages seeking comment Tuesday.
Tharpe’s wife left him in August 1990, taking their four daughters to live with her mother. About a month later, on Sept. 25, 1990, Tharpe’s wife was driving to work with her brother’s wife when Tharpe used a truck to block them. Armed with a shotgun, he ordered them out of their vehicle and fatally shot Freeman during an argument over whether his estranged wife would go with him, his lawyers have said.
About three months after the killing, Tharpe was tried, convicted and sentenced to death.