Sotomayor agreed that the denial may have been justified because the latest decision of the U.S. Court of Appeals for the Eleventh Circuit in Keith Tharpe’s case did not turn on the merits of his claim, but rather on procedural issues.
But Sotomayor, who has raised concerns about capital cases in the recent past, said she was “profoundly troubled by the underlying facts of this case.” Sotomayor wrote:
“I therefore concur in the court’s decision to deny Tharpe’s petition for certiorari. 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.”
Sotomayor recounted the statements made in an affidavit by a white member of the jury, Barney Gattie, who has since died, that “there are two types of black people: 1. Black folks and 2. Niggers” and that Tharpe, “who wasn’t in the ‘good’ black folks category in [his] book, should get the electric chair for what he did.”
Tharpe, Sotomayor noted, has not received a hearing on the merits of his racial-bias claims. Gattie’s statements, Sotomayor wrote, “amount to an arresting demonstration that racism can and does seep into the jury system. The work of ‘purg[ing] racial prejudice from the administration of justice’ … is far from done.”
Tharpe was convicted of murder and two counts of kidnapping in the September 1990 death of Jaquelyn Freeman.
The high court blocked Tharpe’s execution in a per curiam decision in January, asserting that Gattie’s statement “presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict.” The court sent the case back to the Eleventh Circuit, over the dissent of Justice Clarence Thomas.
In a column published last month by The National Law Journal, Samuel Spital, director of litigation at the NAACP Legal Defense & Educational Fund, said Tharpe’s petition “is the one thing standing between Tharpe and execution.” He urged the justices to “intervene in Tharpe’s case and prevent the state of Georgia from executing Tharpe before any court has considered the compelling evidence that Tharpe was sentenced to death, at least in part, because he is black.”
Tharpe is represented by Brian Kammer and Marcia Widder of the Atlanta-based Georgia Resource Center.
“Today’s decision from the U.S. Supreme Court takes giant steps backwards from the Court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice,” Widder said in a statement. “What happened in Mr. Tharpe’s death penalty case was wrong. There is compelling evidence that a juror who voted for Mr. Tharpe’s death sentence was influenced by racist beliefs he held about African Americans in general and Mr. Tharpe in particular.”
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