Supreme Court Reopens Death Sentence of Black Convict

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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. 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 appeal stems from interviews Tharpe's legal team conducted in 1998 with Barney Gattie, a white juror.

The majority reasoned that, "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". Tharpe tried to have the district court's ruling reopened and reconsidered, but the U.S. Court of Appeals for the 11th Circuit rejected his request.

Additionally, the affidavit states that Gattie knew Jaquelin Freeman, Tharpe's sister-in-law, and saw her and her family as "what he would call a nice black family", according to the opinion, Tharpe v. Sellers (PDF). But the state post-conviction court would not consider any evidence of potential racial bias, and a federal district court also declined to consider that evidence.

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Tharpe's execution by lethal injection was halted in September on day it was to be carried out. "But on the unusual facts of this case, the Court of Appeals' review should not have rested on the ground that it is indisputable among reasonable jurists that Gattie's service on the jury did not prejudice Tharpe", the majority writes.

Thomas said the court was swayed by the "odious" remarks in Gattie's statement, but should have focused on procedural problems with Tharpe's case and the lower court's determination that Tharpe's death sentence did not depend upon racist considerations by the jury. Tharpe blocked their vehicle, dragged Freeman out and shot her three times with a shotgun.

Also, Gattie told Tharpe's lawyers that some jurors thought Tharpe should receive the death penalty as an example to black people who kill other blacks.

Justice Clarence Thomas, who wrote the dissent and was joined by Justices Samuel Alito and Neil Gorsuch, said the court's unsigned opinion demonstrated "ceremonial hand-wringing" and he predicted Tharpe would lose his appeal.

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The majority's decision "merely delays Tharpe's inevitable execution", Thomas said.

"We are disappointed with the Supreme Court's decision", Spencer Hahn, an assistant federal public defender who represents Moody, said in a statement to AL.com on Monday.

Stephen Bright, a law professor at Yale and Georgia State law schools, said the decision shows how the high court is increasingly requiring lower courts to carefully examine racial bias issues.

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