“I’m extremely grateful that the justices agreed to take their time with Keith’s petition and not decide this issue under the time pressure of a scheduled execution,” said Brian Kammer, one of Tharpe’s lawyers.
It’s important for the high court to take its time considering Tharpe’s claims, because there was “a die-hard racist juror who actually decided Keith’s fate,” he said. The Supreme Court has begun to address claims of racial bias in the criminal justice system, “and it’s appropriate that they thoroughly consider whether Keith’s case represents another opportunity to remedy them.”
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The juror has denied racial motives and called Tharpe "a cold, calculated murderer."
The Supreme Court now has three options: they can decide not to hear the appeal, meaning the execution would be re-scheduled; it can agree to hear the case, which would require legal briefs to be filed and oral arguments; or it could send the case back to the lower courts with instructions on how to proceed.
"A Lot of Things Are Possible"
Robert Dunham, executive director of the Death Penalty Information Center said Georgia is unique because of the narrow window — no more than 20 days — in which an execution must take place after the death warrant is signed.
“When stays are granted in Georgia cases, they are much more likely to be at the last minute and that’s because Georgia has one of the country’s most restrictive death warrant practices,” Dunham said. “That means if there are any 0utstanding legal issues, there is entirely an inadequate period of time for the lower courts to address them.”
Tharpe was scheduled to die by lethal injection at 7 p.m. Tuesday evening for the 1990 murder of his sister-in-law, Jacquelyn Freeman. Georgia officials historically do not proceed if there are any final appeals pending and Tharpe had two pending when the 7 o’clock hour came.
The stay arrived around 10:30 p.m. Chief Justice John Roberts sided with the court's more liberal wing in signing off on the stay. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.
“It’s important to not read too much into it,” said Georgia State University professor Lauren Sudeall Lucas, who teaches constitutional and death penalty law. “It might mean the court wants to be sure there is time.”
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The order said the stay “shall terminate automatically” if the justices decide not to hear his case.
The court has not said when it would decide.
Stephen Bright, who teaches law at Yale University and Georgia State, said Tharpe could still be executed in the coming days if the stay is terminated before the current execution warrant expires at noon next Tuesday.
“I would say a lot of things are possible,” Bright said.
Last-minute stays from the high court are unusual, but not unheard of.
Davis' execution was stayed two hours before he was scheduled to die. It was one of three times his scheduled lethal injection was stopped just as he neared his time of death.
Last November, the Supreme Court granted a stay of execution just minutes before an Alabama convict was to have been executed. Thomas Archer, 75, was executed on May 26.
The legal matter at the heart of the stay in Tharpe's case is whether one of the Jones County jurors who voted to convict him treated him differently because of his race.
The question had already been raised in previous appeals but failed because Georgia law doesn't allow a jury’s verdict to be impeached. But last March, the U.S. Supreme Court, ruling in a Colorado case, carved out an exception if a juror’s decision was fueled by racism.
Cases with such claims can be reopened, the opinion said, when it can be shown that a juror made “a clear statement that he … relied on racial stereotypes or animus to convict a criminal defendant.”
Tharpe’s lawyers argued that Supreme Court decision is retroactive. The 11th U.S. Circuit Court of Appeals based in Atlanta last week declined to hear the appeal until the state courts reviewed the claim.
A question of race
The murder that landed Tharpe on Georgia’s death row took place 27 years ago after his wife moved in with her mother to escape their violent marriage.
On Sept. 25, 1990, Tharpe drove a borrowed pickup truck to intercept his estranged wife and her sister in law as they set out for their jobs in Macon. Tharpe blocked their car, dragged Freeman out of it and shot the 29-year-old mother three times, reloading each time after he pulled the trigger on his shotgun.
Moments later, Freeman’s husband drove by, taking their children to school, and saw his wife’s body in a ditch. By then, Tharpe had kidnapped his wife. Later, he allegedly sexually assaulted her.
A Jones County jury convicted him of murder and kidnapping three months later. He was sentenced to die on Jan. 10, 1991.
Seven years after his conviction, Tharpe’s lawyers interviewed juror Barney Gattie.
“After studying the Bible, I have wondered if black people even have souls,” said Gattie, according to an affidavit
Freeman, the murder victim, came from a family of “nice black folks,” Gattie said. "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, who is now deceased, also used a racial slur when referring to Tharpe, the affidavit said.
Just days after Gattie made those incendiary statements, he recanted them after meeting with lawyers in the state Attorney General’s Office.
“I did not vote to impose the death penalty because he was a black man," Gattie said in a newly signed, second affidavit.
As for signing the March 25, 1998, affidavit, Gattie said he’d been drinking beer and whiskey that day and didn’t pay much attention when Tharpe’s lawyers read the affidavit back to him before he signed it.
But members of Tharpe’s legal team who obtained the initial statement countered by signing their own affidavits. They said that Gattie did not appear to be impaired that day and was alert and animated.