Georgia death row inmate who appealed sentence based on racist juror dies in prison

JACKSON, Ga. — A Georgia death row inmate who was issued a stay of execution in 2017 based on a trial juror’s racist beliefs, including questioning if “black people even have souls,” has died.

Keith “Bo” Tharpe, 61, died Friday of natural causes, according to The Associated Press. Georgia Department of Corrections officials confirmed Tharpe’s death in an email to the AP on Sunday.

Tharpe’s legal team at the Georgia Resource Center, which offers free legal help to death row inmates, said his death was likely due to complications of cancer, CNN reported.

Despite his 2017 stay, Tharpe had been awaiting possible execution after the U.S. Supreme Court in March 2019 declined to take up his case.

“The courts’ failure to confront the racism tainting Mr. Tharpe’s death sentence remains a stain on the judicial system and calls for increased efforts to eradicate the poison of racism in our criminal courts,” one of Tharpe’s attorneys, Marcia Widder, said in a statement obtained by CNN on Saturday.

Tharpe had been on death row at the Georgia Diagnostic and Classification Prison since 1991, when he was convicted of murdering his sister-in-law, Jacquelyn Freeman, in Jones County. He was found guilty of malice murder and two counts of kidnapping with bodily injury in the Sept. 25, 1990, crime, which stemmed from his wife leaving him the month before.

“Following various threats of violence made by the defendant to and about his wife and her family, a peace warrant was taken out against him, and the defendant was ordered not to have any contact with his wife or her family,” a 2017 news release from the Georgia Attorney General’s Office said. “Notwithstanding this order, Tharpe called his wife on Sept. 24, 1990 and argued with her, saying if she wanted to ‘play dirty,’ he would show her ‘what dirty was.’”

The next morning, Tharpe’s wife and sister-in-law were driving to work when Tharpe used his vehicle to block theirs.

“He got out of his vehicle, armed with a shotgun and apparently under the influence of drugs, and ordered them out of their vehicle. He then took his sister-in-law to the rear of his vehicle, where he shot her,” the news release said. “He rolled her into a ditch, reloaded, and shot her again, killing her.”

Tharpe then drove away with his wife. After unsuccessfully trying to rent a motel room, Tharpe parked by the side of the road and raped his wife.

Afterward, he drove to Macon, where he ordered his wife to withdraw cash from her credit union, Instead, she called the police and Tharpe was arrested.

In his appeals over the following decade, Tharpe’s attorneys argued multiple issues should keep him out of the death chamber. They claimed their client’s IQ of 74 indicated he was not able to fully understand the charges against him.

They also argued that he had received “horrifyingly uninformed and unconcerned legal representation” at his trial.

In 1998, seven years after his conviction, Tharpe’s attorneys interviewed a white juror, Barney Gattie, of Gray, who told them that, “after studying the Bible, (he) “wondered if black people even have souls.”

Gattie, who signed off on an affidavit filed by Tharpe’s lawyers, “stated that there are two kinds of black people in the world -- ‘regular black folks’ and ‘n-words.’”

“Mr. Gattie noted that he understood that some people do not like the word “n-word” but that is just what they are, and he ‘tells it like he sees it,’” according to court records.

Gattie admitted knowing Freeman, the murder victim, and said she came from one of the “good black families” in Gray.

“If they had been the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much. My feeling is, what would be the difference?” Gattie said.

Court records indicate that Gattie went on to say that Tharpe, “who wasn’t in the ‘good’ black folks category in (Gattie’s) book, should get the electric chair for what he did.” He also told the attorneys that “(s)ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t (his) reason.”

Tharpe’s attorneys used the affidavit to appeal his case and the Supreme Court granted a temporary stay of execution Sept. 26, 2017, the night Tharpe was scheduled to die.

“Gattie’s remarkable affidavit -- which he never retracted -- presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict,” a January 2018 Supreme Court decision read.

The court sent the case back to the 11th Circuit Court of Appeals for consideration of whether Tharpe should be allowed to appeal his sentence. The appeals court in August 2018 ruled that he should not, denying the appeal, in part, because it relied on the decision in a later case that could not be applied retroactively.

The Supreme Court in March declined to hear Tharpe’s appeal of that decision. Justice Sonia Sotomayor wrote in a statement, however, that she was “profoundly troubled by the underlying facts of this case.”

“To this day, Tharpe’s racial-bias claim has never been adjudicated on its merits,” Sotomayor wrote.

She wrote that, while she agreed with the court’s denial of Tharpe’s petition, she felt the justices “should not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.”

“Tharpe has uncovered truly striking evidence of juror bias,” Sotomayor wrote. “(Gattie’s) racist sentiments, expressed by a juror entrusted with a vote over Tharpe’s fate, suggest an appalling risk that racial bias swayed Tharpe’s sentencing. The danger of race determining any criminal punishment is intolerable and endangers public confidence in the law. That risk is especially grave here, where it may have yielded a punishment that is unique in its ‘complete finality.’”

Sotomayor wrote that, while it is tempting to excuse the bias in Tharpe’s case as an “outlier,” racial bias is “a familiar and recurring evil.”

“That evil often presents itself far more subtly than it has here,” she wrote. “Yet Gattie’s sentiments -- and the fact that they went unexposed for so long, evading review on the merits -- amount to an arresting demonstration that racism can and does seep into the jury system.”

Tharpe’s attorneys told CNN he had spent the last few years of his life “strengthening his bonds with family and friends and deepening his Christian faith.” When facing execution in 2017, he apologized to Freeman’s family for her brutal slaying, according to the AP.

Tharpe recorded the apology in a holding cell hours before his scheduled execution. The AP obtained a transcript of his statement via an open records request.

“You know because, uh, you know, me taking the life of her was very wrong and uh, I sincerely wish y’all would be able to be forgiving one day,” the transcript read. “You know and uh, like I say, I’ma say it again, I’m very sorry. And, uh, and, God bless y’all. That’s all I can say.”

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