ATLANTA (AP) — As Georgia prepares to put to death a man who killed his sister-in-law 27 years ago, his lawyers say the execution should be stopped because his death sentence is tainted by a juror's racial bias.
Lawyers for the state reject that argument and say Keith Leroy Tharpe, 59, should die as scheduled Tuesday for the September 1990 slaying of Jacquelyn Freeman.
Tharpe's wife left him on Aug. 28, 1990, and went to live with her mother. Despite an order not to contact her or her family, Tharpe called his wife on Sept. 24, 1990, and told her during an argument that if she wanted to "play dirty," he would show her what dirty was, a Georgia Supreme Court summary of the case says.
His wife was driving to work the next morning with her brother's wife when Tharpe used a truck to block them. He got out armed with a shotgun and ordered them out of their vehicle, the summary says.
Tharpe took Freeman to the rear of his vehicle, shot her, rolled her into a ditch and then shot her again, killing her.
He then drove away with his wife. When he took her to Macon a while later to have her get money from her credit union, she called the police.
Tharpe went to trial a little more than three months after the killing and was convicted and sentenced to death. Seven years later, lawyers working on Tharpe's behalf interviewed jurors.
"In my experience I have observed that there are two types of black people: 1. Black folks and 2. (N-words)," juror Barney Gattie told them.
He knew the victim's family and knew them to be "good black folks," he said, and he felt that Tharpe was not in that category, so he should be executed.
"After studying the Bible, I have wondered if black people even have souls," said Gattie, who has since died.
Tharpe's legal team prepared an affidavit including those statements after interviewing Gattie and he signed it, making a change to one part by hand and initialing that change.
Two days later, lawyers for the state visited Gattie and he signed a new affidavit walking back much of what he'd told Tharpe's team. He also said he had been drinking before both meetings with Tharpe's legal team, that they hadn't told him he was signing an affidavit or what it would be used for and that his statement had been "taken all out of proportion" and "was misconstrued," according to filings by state attorneys.
Gattie said he didn't mean the N-word as a racial slur, that he used it to refer to no-good people regardless of their race, the state's filing says. He said race wasn't an issue during deliberations and that he voted to sentence Tharpe to death because of the evidence against him, not because of his race.
Both state and federal courts ruled that Gattie's statements were not admissible because of a Georgia law prohibiting jurors from impeaching their verdict and said Tharpe's claim was procedurally barred.
Tharpe's lawyers in June asked a federal judge to reopen his case, citing two recent U.S. Supreme Court decisions.
The nation's high court found in March that state rules that say jurors can't impeach their verdict don't apply when a statement shows that racial animus was a significant factor in a juror's decision to convict.
U.S. District Judge Ashley Royal declined earlier this month to reopen the case.
"There is absolutely no indication that Gattie, or anyone else, brought up race during the jury deliberations," Royal wrote, noting that no other jurors complained about the deliberations. "It was more than seven years later, and possibly when he was intoxicated, that Gattie made his racist statement."
Royal also ruled that Tharpe's case also did not exhibit the required extraordinary circumstances to merit reopening under another U.S. Supreme Court ruling from February.
Tharpe's lawyers appealed Royal's ruling to the 11th U.S. Circuit Court of Appeals, which on Thursday rejected the appeal. Tharpe's lawyers are appealing to the U.S. Supreme Court and are also pursuing legal action in state court.
The State Board of Pardons and Paroles, the only authority in Georgia with the power to commute a death sentence, has scheduled a clemency hearing for Tharpe on Monday.
If executed, Tharpe would be the second inmate put to death in Georgia this year. Last year, Georgia executed a state-record nine inmates.