Supreme Court revives case of death row inmate who said juror was racist

Claims sent back to lower court for review

Georgia Dept. of Corrections via CNN

Keith Tharpe does not deny killing Jacquelin Freeman. He sought a stay of execution based in part on racist comments from a juror who has since died.

WASHINGTON (CNN) - A divided Supreme Court has revived the case of a death row inmate who argued that a juror voted to put him to death because of his race.

On Monday, the justices sent the case back down to the lower court to reconsider Keith Tharpe's claims.

In an unsigned 6-3 opinion, the court said Tharpe's legal team had produced a "remarkable" affidavit from the juror that presented a "strong factual basis" for the argument that Tharpe's race had affected one juror's vote for a death verdict.

The majority cautioned, however, that Tharpe "faces a high bar in showing that jurists of reason could disagree" with the state court's opinion.

Justice Clarence Thomas dissented, joined by Samuel Alito and Neil Gorsuch, from the opinion.

Thomas said the court has accomplished little more than a "do-over."

"The court must be disturbed by the racial rhetoric," in the case "and must want to do something about it," Thomas wrote. But he called the decision to send the case back down to the lower court "no profile in moral courage."

Thomas acknowledged that the opinions in the juror's affidavit are "certainly odious" but he said "their odiousness does not excuse us from doing our job correctly, or allow us to pretend that the lower courts have not done theirs."

"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," Thomas wrote. "It is not."

Thomas added that the juror in question had testified in a second affidavit that he did not impose a death sentence because of Tharpe's race, and said that the first affidavit was signed after he had consumed a substantial amount of alcohol.

Last September, a divided court issued a stay of execution for Tharpe. Thomas, Alito and Gorsuch dissented from that order.

In post-conviction appeals, Tharpe did not deny killing Jacquelin Freeman. He sought a stay of execution based in part on racist comments from a juror who has since died.

In an interview seven years after Tharpe's sentencing, juror Barney Gattie used the n-word in reference to Tharpe and other black people and wondered "if black people even have souls." Tharpe's lawyers argued that a biased juror violated Tharpe's constitutional rights to a fair trial.

Lawyers for the state argued that Tharpe's claim had been reviewed by a state habeas court. In court papers they argued that Gattie had provides an affidavit that "race was not a motivating factor."

"Additionally, the remaining eleven jurors, who all testified, did not state that race was considered," Christopher M. Carr , the Attorney General of Georgia, argued in court papers.

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