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.

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