By a 6-3 vote, the court questioned a decision by the US Court of Appeals for the Eleventh Circuit not to consider Tharpe's latest appeal involving claims of racial bias on the part of the juror.
Tharpe was sentenced to death in 1991 for the murder of his sister-in-law. Seven years later, Tharpe's attorneys obtained a signed affidavit by juror Barnie Gattie, who used racial slurs to refer to black people and stated that "after studying the Bible, I have wondered if black people even have souls."
The majority reasoned that, "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. At the very least, jurists of reason could debate whether Tharpe was shown by clear and convincing evidence that the state court's factual determination was wrong."
Justice Clarence Thomas authored a dissenting opinion joined by Justices Samuel Alito and Neil Gorsuch in which he accused the majority of bending the rules to show their concern for racial justice. Thomas argued the court should not be in the business of "ceremonial handwringing." Thomas said that Gattie's comments are disturbing, but the court's ruling will only prolong the inevitable, while further delaying justice for the victim and her family.
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