Fed Court Rejects Appeal of Mentally Disabled Black Man Even Though White Juror Called Him Nigger & Hated Black People b/c They Aren't White

From [HERE] A federal appeals court on Tuesday rejected the arguments of a Georgia death row inmate whose scheduled execution was temporarily halted last year by the U.S. Supreme Court.

For the second time in as many years, Georgia was prepared to execute an intellectually disabled African-American man, despite evidence that the death verdict in his case may have been tainted by a white juror's profound racial bias. Lawyers for Keith Leroy Tharpe, whose IQ has been measured in the 60s and whom Georgia had scheduled to be executed on September 26, said the courts should reconsider his case in light of the racial slurs a white juror made about him. The justices voted 6-3 in January to order the 11th U.S. Circuit Court of Appeals in Atlanta to take up his case, giving him another chance to raise claims of racial bias on his jury.

Lawyers had argued that new U.S. Supreme Court decisions clearly prohibit death sentences based on race and permit defendants to inquire into racist statements by jurors. While preparing his appeal, Tharpe's lawyers interviewed jurors from his case, including one who openly referred to Tharpe with the N-word while saying the victim, Tharpe's sister-in-law, had come from a family of "'good' black folks."

Tharpe, 59, was convicted of murder and two counts of kidnapping in the September 1990 slaying of his sister-in-law, Jacquelyn Freeman.

His appeal arises from interviews his legal team did in 1998 with Barney Gattie, a white juror. 

In his interview, Gattie showed that he "harbored very atrocious, racist views about black people," Kammer said. According to his affidavit, Gattie said, "In my experience I have observed that there are two types of black people: 1. Black folks and 2. "N****rs."

Gattie went on to say in his affidavit, "I felt Tharpe, who wasn't in the 'good' black folks category in my book, should get the electric chair for what he did." 

"After studying the Bible, I have wondered if black people even have souls," Gattie said.

Weeks after the interview, Tharpe's attorneys returned to Gattie's home and read his statements back to him, periodically stopping to ask him if the statements were accurate, court documents say.

Gattie had only one correction, but the rest of his statement stood, court documents filed by Tharpe's attorneys say. He signed the 1998 affidavit under oath.

"He basically admitted his criteria for deciding to sentence Mr. Tharpe to death had much more to do with his race than any of the facts of the crime," Kammer said.

His attorneys also argued Tharpe is ineligible for execution because he is intellectually disabled. [MORE]

State and federal courts had ruled that Gattie's statements and some other evidence cannot be used because of a state evidentiary rule that prohibits jurors from impeaching their verdicts. Tharpe's lawyers argued that two recent U.S. Supreme Court rulings opened the door for that evidence to be admitted.

The Supreme Court ruled in March 2017 that if a juror states clearly that he relied on racial stereotypes or animus to reach a conviction, the rules that bar jurors from impeaching their verdicts can be set aside so the judge can determine whether the right to a fair trial was upheld.

A federal judge last year declined to reopen the case, and Tharpe's lawyers appealed to the 11th Circuit. A three-judge panel of the 11th Circuit declined to halt Tharpe's execution, saying he didn't make a "substantial showing" that his constitutional rights were denied. The appeals court also said that if Tharpe wanted to rely on the Supreme Court ruling from March 2017, the issue would have to be taken up first in state court rather than federal court.

Tharpe's lawyers appealed the 11th Circuit ruling to the Supreme Court and also tried unsuccessfully to get a state court to examine the alleged juror racial bias.

The Supreme Court ruled in January that the 11th Circuit had been mistaken. The unsigned majority opinion noted that Gattie never retracted his "remarkable affidavit" and that it provides strong evidence that "Tharpe's race affected Gattie's vote for a death verdict."

Justice Clarence Thomas wrote in a dissenting opinion, joined by Justices Samuel Alito and Neil Gorsuch, that the court was letting Gattie's "odious opinions" trump the right approach to the law. He predicted the 11th Circuit would reach the same conclusion and deny Tharpe's appeal on other grounds and referred to his colleagues' action as a "useless do-over."

Indeed, the 11th Circuit panel on Tuesday said it was denying Tharpe's appeal for the other reason that it originally cited, that his arguments based on the March 2017 Supreme Court opinion had not been exhausted in state courts. The appeals court said its denial allows Tharpe to pursue those arguments in the state courts. [MORE]