Years after his conviction, Tharpe's attorneys interviewed one of the jurors in his case, Barney Gattie. Gattie told them in a signed statement "there are two types of black people: 1. Black folks and 2. N-----s."
The Freeman family was in the former category, according to Gattie's statement. But Tharpe "wasn't in the 'good' black folks category in my book, should get the electric chair for what he did," he wrote. He added that after "studying the Bible, I have wondered if black people even have souls."
Lower courts turned down Tharpe's appeals based on Gattie's statement, which he said had been taken after a long day of drinking. He signed a second affidavit saying race did not enter into his or other jurors' decision-making, and courts found the jury had not been prejudiced against Tharpe.
"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 court wrote.
"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 justices said the U.S. Court of Appeals for the 11th Circuit in Atlanta "erred when it concluded otherwise."
Justice Clarence Thomas, the court's only African American member, objected and was joined by Justices Samuel A. Alito Jr. and Neil M. Gorsuch.
Thomas said the court was swayed by the "odious" remarks in Gattie's statement, but should have focused on procedural problems with Tharpe's case and the lower court's determination that Tharpe's death sentence did not depend upon racist considerations by the jury.
Thomas wrote that his colleagues "must be disturbed by the racist rhetoric in that affidavit, and must want to do something about it. But the court's decision is no profile in moral courage."
Instead, he wrote, the decision "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 hand-wringing, I respectfully dissent."