Three hours after his exe­cu­tion was sched­uled to begin, the U.S. Supreme Court stayed the exe­cu­tion of Keith Tharpe (pic­tured), a Georgia death-row pris­on­er who sought review of his claim that he was uncon­sti­tu­tion­al­ly sen­tenced to death because a juror whom Tharpe alleged ​“har­bored pro­found racial ani­mus against African Americans vot­ed to impose the death penal­ty … because of his race.” 

Over the dis­sents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, the Court issued a stay of exe­cu­tion on September 26, pend­ing a final rul­ing on whether to review a deci­sion of the U.S. Court of Appeals for the Eleventh Circuit that had denied Tharpe per­mis­sion to appeal the issue. 

Tharpe, who had been con­vict­ed and sen­tenced to death for the mur­der of his sis­ter-in-law, had chal­lenged his death sen­tence after learn­ing that Barney Gattie, a white juror in his case, had said that there were ​“two types of black peo­ple: 1. Black folks and 2. Ni**ers”; described Tharpe as ​“a ni**er”; doubt­ed ​“if black peo­ple even have souls”; and said if the vic­tim ​“had been the same type [of black per­son] Tharpe is, then pick­ing between life of death would­n’t have mat­tered so much.” 

The Georgia courts had refused to con­sid­er his biased-juror chal­lenge, say­ing that state law pro­hibit­ted him from attempt­ing to impeach the jury’s ver­dict. However, after the U.S. Supreme Court ruled ear­li­er this year that overt expres­sions of racial bias by a juror are not insu­lat­ed from judi­cial review, Tharpe argued that he was enti­tled to have his claim heard and to have a new, fair sentencing hearing. 

The Eleventh Circuit dis­agreed, con­clud­ing that he had not ​“made a sub­stan­tial show­ing of the denial of a con­sti­tu­tion­al right” and ​“had failed to demon­strate that Barney Gattie’s behav­ior had [a] sub­stan­tial and inju­ri­ous effect or influ­ence in deter­min­ing the jury’s verdict.” 

When Tharpe again attempt­ed to raise the issue in the Georgia state courts, the Georgia Supreme Court ruled that the Supreme Court deci­sion made no dif­fer­ence and his chal­lenge was barred as ​“res judi­ca­ta” — mean­ing that the issue had already been decid­ed against him. His appeal from the state-court deci­sion had just been filed in the U.S. Supreme Court when it stayed his exe­cu­tion based upon the federal litigation. 

The Court’s order spec­i­fied that the stay ​“shall ter­mi­nate auto­mat­i­cal­ly” if the Court ulti­mate­ly decides not to review the issue or if the Court ulti­mate­ly rules against Tharpe. Under Supreme Court rules, the votes of four Justices are suf­fi­cient to decide to hear a pris­on­er’s appeal. However, the votes of five Justices are required to stay an exe­cu­tion, effec­tive­ly over­rid­ing the Court’s rules for cas­es pre­sent­ed dur­ing an active death warrant. 

Brian Kammer, one of Tharpe’s attor­neys, expressed grat­i­tude that ​“the court under­stands this case mer­its thought­ful con­sid­er­a­tion out­side the press of an exe­cu­tion war­rant.” He said, ​“We are extreme­ly thank­ful that the court has seen fit to con­sid­er Mr. Tharpe’s claim of juror racial bias in regular order.”

(M. Berman, ​“Supreme Court halts exe­cu­tion of Georgia inmate after attor­neys ques­tion racial bias in jury,” Washington Post, September 27, 2017; D. Andone and E. Grinberg, ​“SCOTUS stays exe­cu­tion of Georgia death row inmate amid claims of racial bias,” CNN, September 27, 2017; K. Brumback, ​“Supreme Court grants tem­po­rary stay of exe­cu­tion in Georgia,” Associated Press, September 27, 2017; B. Edwards, ​“US Supreme Court Grants Last-Minute Stay of Execution for Ga. Man Convicted by a Racist Juror,” The Root, September 27, 2017; R. Cook, ​“Reprieve for Georgia death row inmate may be tem­po­rary, experts say,” Atlanta Journal-Constitution, September 27, 2017.) Read excerpts from the Affidavit of juror Barney Gaffie here and the Supreme Court’s stay order here. See Executions and Stays, Race, and U.S. Supreme Court.

Citation Guide