Less than three months after the U.S. Supreme Court direct­ed a fed­er­al appeals court to recon­sid­er whether Georgia death-row pris­on­er Keith Tharpe (pic­tured) is enti­tled to fed­er­al-court review of his claim that he was uncon­sti­tu­tion­al­ly sen­tenced to death because he is Black, the U.S. Court of Appeals for the Eleventh Circuit has declined to review Tharpe’s appeal, say­ing he had nev­er pre­sent­ed the issue to the state courts. 

Citing ​“prin­ci­ples of comi­ty and fed­er­al­ism,” the court denied Tharpe’s appli­ca­tion for a cer­tifi­cate of appeal­a­bil­i­ty — a fed­er­al court pre­req­ui­site for a habeas peti­tion­er to appeal — on the grounds that the Georgia state courts ​“have yet to exam­ine” Tharpe’s juror-misconduct claim. 

Tharpe was sen­tenced to death by a Georgia jury that includ­ed a racist White juror who called him a ​“ni***er,” and ques­tioned ​“if black peo­ple even have souls.” The juror, Barney Gattie, signed an affi­davit say­ing that there were ​“two types of black peo­ple: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, ​“wasn’t in the ​‘good’ black folks cat­e­go­ry [and] should get the elec­tric chair for what he did.” Gattie’s affi­davit also said “[s]ome of the jurors vot­ed for death because they felt Tharpe should be an exam­ple to oth­er blacks who kill blacks,” but denied that race influ­enced his own vote. 

When Tharpe first pre­sent­ed the claim to the state and low­er fed­er­al courts, it was denied based on a state-court rule pro­hibit­ing courts from con­sid­er­ing evi­dence ques­tion­ing why jurors reached their ver­dict. However, after Tharpe’s claim was reject­ed, the U.S. Supreme Court decid­ed a case in 2017, Pena-Rodriguez v. Colorado, that made clear a state rule can­not insu­late a juror’s overt expres­sions of racial bias from judicial review. 

While Tharpe faced immi­nent exe­cu­tion in September 2017, he asked the state and fed­er­al courts to review the issue again in light of Pena-Rodriguez. The Georgia Supreme Court and the Eleventh Circuit both denied his request. Three hours after his exe­cu­tion was sched­uled to start, the U.S. Supreme Court issued a stay of exe­cu­tion based upon his fed­er­al appeal. On January 8, 2018, the Court grant­ed Tharpe’s peti­tion for cer­tio­rari and vacat­ed the judg­ment of the Eleventh Circuit. The Court said the fact that Gattie had nev­er retract­ed his ​“remark­able affi­davit” strong­ly sug­gest­ed that ​“Tharpe’s race affect­ed Gattie’s vote for a death verdict.” 

Tharpe is expect­ed to ask the Supreme Court to review the cir­cuit court’s lat­est rul­ing. On April 2, he filed a sep­a­rate peti­tion ask­ing the Court to review the Georgia state court’s denial of the issue.

(Kate Brumback, Court Rejects Appeal of Inmate Whose Execution Was Halted, Associated Press, April 3, 2018.) Read the Eleventh Circuit opin­ion in Tharpe v. Warden here and Keith Tharpe’s peti­tion for writ of cer­tio­rari in the state court case here. See Race and Supreme Court.

Citation Guide