Racial bias of a juror who questioned whether black people have souls led the U.S. Supreme Court on Monday morning to block the execution of a Georgia man.

The highest court issued a two-and-a-half page per curiam order Monday, returning the case of convicted killer Keith Tharpe to the U.S. Court of Appeals for the Eleventh Circuit.

Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, wrote a 13-page dissent, reasoning that Tharpe is going to die anyway. Thomas, a Georgia native, said that Tharpe could not prove that bias affected the jury's decision to approve the death penalty.

“One might wonder why the court engages in this pointless exercise,” Thomas wrote. “The only possible explanation is its concern with the 'unusual facts' of this case, specifically a juror affidavit that expresses racist opinions about blacks. The opinions in the affidavit are certainly odious. But their odiousness does not excuse us from doing our job correctly, or allow us to pretend that the lower courts have not done theirs.”

The odious opinion came from a white juror named Barney Gattie, who has since died. This is what the court majority opinion said about that juror: “Tharpe produced a sworn affidavit, signed by Gattie, indicating Gattie's view that 'there are two types of black people: 1. Black folks and 2. Niggers'; that Tharpe, 'who wasn't in the 'good' black folks category in my book, should get the electric chair for what he did'; 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 my reason'; and that, '[a]fter studying the Bible, I have wondered if black people even have souls.'”

The majority reversed the Eleventh Circuit's denial of Tharpe's motion to reopen his federal habeas corpus proceeding based on that juror's bias.

“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,” the majority ruled. “At the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court's factual determination was wrong. The Eleventh Circuit erred when it concluded otherwise.”

The majority left room for the possibility that Thomas could be right.

“It may be that, at the end of the day, Tharpe should not receive a COA,” the majority wrote, referring to the requested certificate of appealability. “But on the unusual facts of this case, the Court of Appeals' review should not have rested on the ground that it was indisputable among reasonable jurists that Gattie's service on the jury did not prejudice Tharpe.”

Thomas called the “unusual facts” argument an attempt to justify a wrong ruling.

“The court must be disturbed by the racist rhetoric in that affidavit, and must want to do something about it,” Thomas said. “But the court's decision is no profile in moral courage. By remanding this case to the Court of Appeals for a useless do-over, the court is not doing Tharpe any favors. And its unusual disposition of his case callously delays justice for Jaquelin Freeman, the black woman who was brutally murdered by Tharpe 27 years ago. Because this court should not be in the business of ceremonial handwringing, I respectfully dissent.”

Tharpe was represented by the executive director of the Georgia Resource Center,
Brian Kammer.

“We are thankful that the U.S. Supreme Court recognized the serious implications for fundamental fairness of the clear evidence of racial animus on the part of one of the jurors who sentenced Mr. Tharpe to death,” Kammer said in a news release Monday. “We look forward to pressing Mr. Tharpe's case in the Eleventh Circuit per the U.S. Supreme Court's direction.”

Sabrina Graham of the office of Georgia Attorney General Chris Carr represented the state. Carr said through a spokeswoman by email Monday, “We've received the decision, and if requested, we'll address the Court's concerns in subsequent proceedings.”