Keith Tharpe, who sits on death row for a 1990 murder. (Georgia Department of Corrections)

5 things to know about Georgia death row case with ‘racist juror’

The U.S. Supreme Court on March 18 declined to hear an appeal brought by Georgia inmate Keith Tharpe who contends a juror’s racist views prejudiced his decision to send Tharpe to death row.

The justices’ unanimous decision was accompanied by a concurring opinion by Justice Sonia Sotomayor, who said she was “profoundly troubled by the underlying facts of this case.”

The state of Georgia could soon set an execution date for Tharpe, although his lawyers said they will continue to pursue all options on their client’s behalf.

Here are five things you need to know about this unusual — and highly controversial — case:

1. The stay of execution. In September 2017, the U.S. Supreme Court issued an extraordinary stay of execution three hours after Tharpe had been scheduled to be put to death by lethal injection. 

RELATED: An AJC reporter describes being inside Georgia’s death chamber

He had already eaten what had been expected to be his last meal and he was preparing to die. The high court’s last-minute decision to halt the execution was the first time it had done so in a Georgia case in almost a decade.

2. The murder. On Sept. 25, 1990, Tharpe drove a borrowed pickup truck to intercept his estranged wife and her sister-in-law, Jaquelin Freeman, on a Jones County road as they set out for their jobs in Macon. Tharpe blocked their car, dragged the 29-year-old Freeman out and fatally shot her three times with a shotgun. Moments later, Freeman’s husband drove by, taking their children to school, and he saw his wife’s body in a ditch. By then, Tharpe had kidnapped his wife. He allegedly sexually assaulted her on the side of the road and drove her to Macon, telling her to take money out of her credit union account for him. Instead, she called police and Tharpe was soon arrested.

3. Tharpe’s death-penalty trial. Tharpe’s case went to trial a little more than three months after his arrest — a short span of time unheard of today for a defendant facing a capital prosecution. During the trial, jurors found Tharpe guilty of murder and kidnapping and sentenced him to death on Jan. 10, 1991.

4. The juror. Seven years after the trial, Tharpe’s lawyers interviewed Barney Gattie, a white man who served on the jury. Gattie, who is now deceased, signed a sworn statement in which he said, “After studying the Bible, I have wondered if black people even have souls.”

Gattie, who said his wife warned him about using racial slurs when talking about black people, used a racial slur when referring to Tharpe. “In my experience, there are two types of black people: 1. Black folks and 2. (n-word),” he said.

Gattie also said that Freeman, the murder victim, came from a family of “nice black folks. … If they had been the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much. My feeling is, what would be the difference?”

Gattie said he felt Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did.” (Georgia has changed its method of execution to lethal injection since Tharpe’s 1991 trial.)

After learning about Gattie’s affidavit, state attorneys rushed to his house and got him to sign yet another sworn statement in which he changed his tune.

“I believe Keith Tharpe was a cold, calculated murderer,” Gattie said. “I did not vote to impose the death penalty because he was a black man.”

5. Tharpe’s appeal. After the U.S. Supreme Court stayed Tharpe’s execution, the high court sent his case back to the federal appeals court in Atlanta.

Last August, a three-judge panel of the 11th U.S. Circuit Court of Appeals unanimously rejected Tharpe’s juror bias claims, saying they were barred on procedural grounds. The court declined to hear arguments on the issue and said a 2017 opinion by the U.S. Supreme Court that allows courts to consider evidence of racial animus by jurors could not be applied retroactively to Tharpe’s case.

In her concurring opinion, Justice Sotomayor expressed frustration that Tharpe’s juror bias claim has not been considered on its merits and instead was barred on procedural grounds.

Gattie’s comments show that “racism can and does seep into the jury system” and “suggest an appalling risk that racial bias swayed Tharpe’s sentencing,” the justice wrote. “The danger of race determining any criminal punishment is intolerable and endangers public confidence in the law.”

Sotomayor added: “As this may be the end of the road for Tharpe’s juror bias claim, however, we should not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.”

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