GRAY, Ga. — The U.S. Supreme Court has ruled against a Jones County convicted killer on Georgia's Death Row who argued that a racist juror helped convict him.
By rejecting his petition, the court says the execution of Keith Tharpe for a 1990 murder can go forward.
But in a statement released with the decision, Justice Sonia Sotomayor wrote that Tharpe's death-penalty case showed that racism "can and does seep into the jury system."
Monday's decision to reject Tharpe's appeal was based on procedural grounds, not on whether justices believed his claims that a juror made racist statements after the verdict.
But Sotomayor wrote that "there is strong evidence" that racial bias tainted his death sentence.
'The coldest eyes I can remember'
Tharpe was sentenced to death in 1991 for the malice murder of his sister-in-law, Jacquelin Freeman, and the kidnapping of his estranged wife.
According to court documents, Tharpe repeatedly threatened his wife and her family after she left him.
One September morning, as Freeman and Tharpe's wife were on their way to work, the 59-year-old used his car to force his wife's off the road. Armed with a shotgun, he forced Freeman to the back of the vehicle where he shot her twice.
Jones County investigator Major Earl Humphries said even at trial, Tharpe showed no remorse.
"He had about the coldest eyes I can remember from anyone I've ever spoken to," he said.
"My feeling is, what would be the difference?"
Tharpe's lawyers appealed his death sentence, arguing that a "profoundly racist" juror who "wondered if black people even have souls" influenced the jury that gave him the death penalty.
His lawyers recounted statements by juror Barnie Gattie, describing his "free and unabashed use of the racial slur 'n-----' to describe Mr. Tharpe and his admission that he voted to impose the death penalty because Mr. Tharpe was a 'n-----.'
In 1998, Tharpe's legal team interviewed Gattie, who signed a sworn statement confirming his comments. In that statement, he describes the victims and their family as "good black folks."
"If they had been the type Tharpe is, then picking between life and death wouldn't have mattered so much. My feeling is, what would be the difference?" Gattie said, according to his statement.
He continued, "After studying the Bible, I have wondered if black people even have souls. Integration started in Genesis. I think they are wrong."
Gattie's statements don't change the facts of Tharpe's guilt, his lawyers argued, but they show that he did not get a "fair and impartial" jury to consider his sentence.
Tharpe's legal team loses, wins, then loses again
Tharpe was scheduled to die by lethal injection on Sept. 26, 2017, but late that night, the nation's highest court delayed his execution.
RELATED: Tharpe execution stayed
The Supreme Court later ruled that lower courts should review the case.
In 2018, the Eleventh Circuit Court of Appeals rejected his arguments again.
Tharpe's appeal cited a 2017 Supreme Court ruling that overturned a different murder verdict based on a juror's racist statements. But that ruling can't be applied to earlier cases, the appeals court said.
The appeals court also ruled that Tharpe's legal team did not raise the bias issue early enough in the appeals process or give good reason why they had not.
"Truly striking evidence of juror bias"
Sotomayor wrote that she agreed with the Supreme Court's decision not to reconsider the lower court's ruling on procedural grounds.
But she added that she was "profoundly troubled" by the case.
"Tharpe has uncovered truly striking evidence of juror bias," she wrote.
Gattie's racist statements "suggest an appalling risk that racial bias swayed Tharpe's sentencing," Sotomayor wrote.
"It maybe tempting to support Tharpe's case as an outlier, but racial bias 'is a familiar and recurring evil'," she wrote. "That evil often presents itself far more subtly than it has here."
The work of purging racial bias from the justice system, she wrote, "is far from done."
The Georgia Department of Corrections has not set a new execution date for Tharpe. He is being held at the state's death-row prison in Jackson.