Georgia has scheduled its second execution of the year, with a man convicted of killing his sister-in-law 27 years ago set to die later this month.
Keith Leroy Tharpe, 59, is slated to be put to death on Sept. 26 at the state prison in Jackson, Department of Corrections Commissioner Gregory C. Dozier said in a news release Wednesday. Tharpe was convicted in the September 1990 shooting death of Jaquelyn Freeman.
Tharpe's lawyers had asked a federal judge to reopen his case, saying a juror's racial bias "impermissibly influenced the imposition of his death sentence." A judge Tuesday rejected the request.
Tharpe's wife, Migrisus Tharpe, left him on Aug. 28, 1990, and went to live with her mother. He was ordered not to have any contact with his wife or her family after he was accused of threatening violence against them, according to a Georgia Supreme Court summary of the case.
Despite that order, 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," the summary says.
His wife was driving to work the next morning with her brother's wife when Tharpe used a truck borrowed from his neighbor 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.
Tharpe 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 was put on trial just over three months later and a jury found him guilty of malice murder and two counts of kidnapping with bodily injury. He was sentenced to death.
During the appeals process, members of Tharpe's defense team interviewed jurors from the trial, including one white juror who they said demonstrated profound racial animus against black people and voted to give Tharpe the death penalty because he is black.
The juror freely used the N-word to describe Tharpe, while saying Freeman, the victim, came from a family of "'good' black folks," according to a motion filed in June. If Freeman "had been the type Tharpe is, then picking between life or death for Tharpe wouldn't have mattered so much," the juror said, according to the filing.
When questioned by the state, the juror testified he had been drinking both on the day that he initially spoke to Tharpe's defense team and on the day they came back to have him sign a written statement they had prepared. He testified that the prepared statement was taken out of context and was inaccurate.
He said he didn't mean the N-word as a racial slur — that he used it to refer to no-good white or black people — and that race was not an issue in deliberations. He said he voted for the death penalty because of the evidence at trial and Tharpe's lack of remorse, state lawyers wrote in a court filing.
Both state and federal courts ruled that the juror's statements were not admissible because of a Georgia law prohibiting jurors from impeaching their verdict and, therefore, that Tharpe's claim was procedurally barred.
But two recent U.S. Supreme Court decisions make it clear that the courts were wrong to reach that conclusion, his lawyers said, arguing that Tharpe's case should be reopened "given the extraordinary and deeply troubling circumstance of a death sentence imposed, at least in part, on the basis of pernicious racial discrimination."
Taken together, those opinions say juror testimony that impeaches a verdict cannot be barred if the juror made statements showing overt racial bias that casts doubt on the fairness of the jury's deliberations and verdict, Tharpe's lawyers wrote. They also wrote that the possibility of racial bias affecting a death sentence is a sufficiently extraordinary circumstance to merit reopening a case. A judge on Tuesday declined to reopen the case.
Lawyers for the state said Tharpe's case does not fall within the scope of either of the two recent high court opinions and that his claims remain procedurally barred.
Furthermore, the state lawyers wrote, there's no evidence racial hostility tainted the jury deliberations and the juror's "racially insensitive offhand remarks" don't overcome the no-impeachment rule.