Tharpe argued that attitude affected the Georgia jury's death sentence decision for his convictions of kidnapping and raping his estranged wife and murdering her sister almost three decades ago. Gattie signed an affidavit, though he later testified that he voted to sentence Tharpe to death because of the evidence against him. Reportedly, Gattie used racial slurs when describing Tharpe, and alleged his knowledge of the Bible led him to wonder "if black people even have souls".
The majority acknowledged that Tharpe faces a "high bar" to have his claims considered in federal court and "it may be that, at the end of the day" his appeal fail.
The ruling also orders Georgia's US Court of Appeals for the 11th Circuit to hear an appeal from Tharpe, and to take the juror's admission of racism into account in their ruling.
Justice Clarence Thomas authored a dissenting opinion joined by Justices Samuel Alito and Neil Gorsuch in which he accused the majority of bending the rules to show their concern for racial justice. "But their odiousness does not excuse us from doing our job correctly, or allow us to pretend that the lower courts have not done theirs", Thomas wrote in the dissent.
But the U.S. Supreme Court rightly said today that his case needs a closer look.
The Supreme Court halted Tharpe's execution on September 26, after Tharpe had eaten what was to be his last meal and more than three hours after the scheduled time of his execution. He shot Freeman with a shotgun, rolled her body into a ditch, reloaded and fired again, killing her. Freeman's husband found her body in the ditch not long afterward. Seven years later, defense attorneys interviewed juror Barney Gattie, who is white. Nearly nothing short of an admission that they hate black people and knew that this defendant was innocent but they railroaded them anyway is good enough to meet that standard. Black folks and 2.
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Thomas said the court's handling of the case "callously delays justice" for Freeman, "the black woman who was brutally murdered by Tharpe 27 years ago".
Tharpe's lawyers subsequently litigated the racial bias issue in state court, but a judge ruled against them.
"Gattie's remarkable affidavit-which he never retracted-presents a strong factual basis for the argument that Tharpe's race affected Gattie's vote for a death verdict", the majority wrote.
"At the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court's factual determination was wrong".
In dissent, Thomas said the lower courts had properly considered and disposed of Tharpe's claims. "The court's decision is no profile in moral courage", Thomas wrote. And review of the denial of a COA is certainly not limited to grounds expressly addressed by the court whose decision is under review.
Georgia courts would not consider any evidence of potential racial bias and a U.S. District Court also refused to consider that evidence.