Georgia Department of Corrections via AP
Keith Tharpe is set to be executed in Georgia on Tuesday for the 1991 murder of his sister-in-law, Jaqueline Freeman.
Tharpe's lawyers are fighting for his execution to be stopped on the grounds that “racism played a pivotal role” in his death sentence.
They asked the US Supreme Court on Saturday to stop the execution, saying that one of the jurors who voted to have Tharpe executed later admitted that his decision was influenced by Tharpe's race.
The juror, Barney Gattie, was interviewed by Tharpe's lawyers from the Georgia Resource Center in 1998 as part of his post-conviction appeals process, according to Tharpe's petition.
During the interview, Gattie, who was white, told Tharpe's attorneys that he favored the death penalty because Tharpe was a “nigger” who had killed someone Gattie considered to be “‘good’ black folk,” and that Gattie's Bible study had led him to “wonder if black people even have souls.”
In an affidavit, Gattie — now deceased — said, “In my experience, I have observed that there are two types of black people. 1. Black folks and 2. Niggers.”
Gattie said that he knew Tharpe's victim, Jacquelin Freeman, and called her family “nice black folks,” adding that if the Freemans had been “the type Tharpe is” then picking between life and death for Tharpe “wouldn't have mattered so much.”
He said that Tharpe wasn't in the “good black folks category” and that he deserved the electric chair for what he did to Freeman.
He continued: “After studying the Bible, I have wondered if black people even have souls.”
Gattie went on to invoke the O.J. Simpson case, saying, “That white woman wouldn't have been killed if she hadn't have married that black man.”
In his interview, Gattie also noted that he understood some people did not like the n-word but that he “tells it like he sees it,” one of Tharpe's lawyers recalled.
The state's post-conviction courts denied Tharpe's appeals to consider the racial bias in his sentencing, because of a Georgia law which prohibits courts from admitting or considering juror testimony that “impeaches” the verdict.
However, Tharpe's lawyers are citing recent Supreme Court decisions which have been favorable to similar claims.
In a March 2017 US Supreme Court ruling, Pena-Rodriguez v. Colorado, Justice Kennedy wrote that the “no impeachment” rule like the one's in Georgia law should be invalidated when “a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant.”
Tharpe's attorneys also said that Tharpe is intellectually disabled and has an “unhealthy brain development” attributing it to “violent physical abuse” in his childhood and “alcohol abuse” by adults and children.
In a letter to the Georgia Board of Pardons and Parole, the NAACP's Legal Defense and Educational Fund, said, “A juror who doubts whether Black people have souls cannot make a reasoned, moral judgment about whether a Black defendant such as Mr. Tharpe should face the ultimate sanction.”
The letter said that Gattie's statements made clear that “Tharpe’s death sentence is infected by racial discrimination” and is “invalid under Georgia law.”
In his clemency petition to the Georgia parole board — which was denied Monday — Tharpe expressed regret for his “terrible decisions and actions” that led to his sister-in-law's death.
“He wishes more than anything he could take back that day and give back Mrs. Freeman’s life,” the petition said.
According to court documents, Tharpe had threatened to “play dirty” with his wife after she left him in 1990 and moved in with her mother.
Despite a court order not to contact his wife or her family, Tharpe confronted his wife and sister-in-law as they drove to work, according to court documents. He blocked their car with his own, forcing them to stop.
Armed with a shotgun, he ordered them to get out of the vehicle and told his sister-in-law that he was going to “fuck you up.” He then took her to the back of his car where he shot her multiple times, killing her. He drove away with his wife, who later called the police.
If carried out, this will be Georgia's second execution this year.