“Because I knew the victim and her husband’s family and knew them all to be good black folks, I felt Tharpe, who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did,” Mr. Gattie wrote.
“After studying the Bible,” he added, “I have wondered if black people even have souls.”
Mr. Tharpe sought to reopen his case based on the affidavit, but state and federal courts ruled against him. The United States Court of Appeals of the 11th Circuit, in Atlanta, stated that “Tharpe failed to demonstrate that Barney Gattie’s behavior ‘had substantial and injurious effect or influence in determining the jury’s verdict,’ ” quoting a Supreme Court decision.
The majority opinion on Monday said the appeals court should reconsider its decision not to hear Mr. Tharpe’s appeal. “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,” the opinion said.
In a similar case decided in March, Peña Rodriguez v. Colorado, the Supreme Court ruled that courts must make an exception to the usual rule that jury deliberations are secret when evidence emerges that those discussions were marred by racial or ethnic bias.
The majority opinion on Monday noted that Mr. Tharpe faces several additional legal hurdles. But it said the appeals court had erred in concluding that there was no question of prejudice in the case.
In a 13-page dissent in the case, Tharpe v. Sellers, No. 17-6075, Justice Thomas wrote that “the opinions in the affidavit are certainly odious.” But he said the majority had ignored controlling legal principles in order to make a statement.
“In bending the rules here to show its concern for a black capital inmate, the court must think it is showing its concern for racial justice,” Justice Thomas wrote. “It is not.”
Mr. Tharpe was bound to lose in the long run given the difficulty of challenging state capital convictions in federal court, Justice Thomas wrote. He added that Mr. Gattie had been drinking when he signed the affidavit and later submitted a second one saying he had not voted for the death penalty based on Mr. Tharpe’s race.
“The court must be disturbed by the racist rhetoric” in the first affidavit, Justice Thomas wrote, “and must want to do something about it. But the court’s decision is no profile in moral courage.”
“By remanding this case to the court of appeals for a useless do-over, the court is not doing Tharpe any favors,” he added. “And its unusual disposition of his case callously delays justice for Jaquelin Freeman, the black woman who was brutally murdered by Tharpe 27 years ago. Because this court should not be in the business of ceremonial hand-wringing, I respectfully dissent.”
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