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The headlines say it all. “The Stench of Prejudice in Keith Tharpe’s Death Sentence,” in the New York Times. “A juror used the N-word. Did that taint a Georgia death sentence?” asked the Los Angeles Times. “A Juror Who Questioned If Black Men Have Souls Sentenced One To Death,” wrote Newsweek. And yet, unbelievable as it may seem, even though one of the jurors who sent Keith Tharpe to Georgia’s death row in 1991 was openly racist, a federal court has refused to order a hearing into whether that was a factor in Tharpe’s verdict.

Tharpe was sentenced to death in Georgia for the 1990 murder of his sister-in-law, Jaquelin Freeman. In 1998, while his lawyers were preparing his post-conviction appeal, they interviewed his jurors, one of whom, Barney Gattie, told them, in a sworn affidavit, that there were two types of black people: “black folks” and “n_ _ _ _ _ s,” and that Tharpe was
a “n- – – – r,” and therefore “should get the electric chair for what he did.” He also told the lawyers that, “After studying the Bible, I have wondered if black people even have souls.”

In spite of this, the 11th Circuit Court of Appeals has twice refused to review the issue of racial bias. Now, it is up to the U.S. Supreme Court. Last Friday, the justices reportedly met to discuss whether to accept his appeal and order the lower court to consider whether racial bias played a role in Tharpe’s sentencing. It’s hard to believe there can be doubt about what the Court will do.

“I do believe that capital punishment is the stepchild of lynching,” Equal Justice Initiative founder and lawyer Bryan Stevenson told the LA Times in April of last year.

Could there be better proof of his assertion than this case?

As Harvard Law professor Randall Kennedy wrote in his op-ed in the New York Times“There is the stench of prejudice, not just a whiff. In this case, remember, one of the 12 people who voted for death voluntarily admitted that he thought of Mr. Tharpe as a ‘n_ _ _ _ r’ and ‘wondered if black people have souls.’ Under these circumstances, an execution would certainly be a miscarriage of justice.”

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