Attorneys for condemned killer Keith Tharpe are trying to halt his Sept. 26 execution with arguments that a juror on the case was racist and voted for death because Tharpe was African-American.
CNN  — 

The Supreme Court declined on Monday to take up the case of Georgia death row inmate Keith Tharpe, who claims a juror voted to put him to death because of his race.

Lawyers for Tharpe pointed to an affidavit from an interview conducted seven years after Tharpe’s sentencing. Juror Barney Gattie used a racial slur in reference to African-Americans. He also questioned whether “black people even have souls.”

The court had heard this case back in 2018, and revived Tharpe’s case over the dissents of Justices Thomas, Alito and Gorsuch.

Now the state of Georgia is free to set an execution date.

Justice Sonia Sotomayor agreed with the court’s decision not to take up the case, in part because the lower court ruled that Tharpe had “not given a sufficient justification for failing to raise the juror-bias claim” in a timely fashion.

Sotomayor said she respected the denial of cert in the case because it did not turn on the merits of Tharpe’s racial-bias claim. But she wrote separately to say that she was “profoundly troubled by the underlying facts of the case.”

“It may be tempting to dismiss Tharpe’s case as an outlier, but racial bias is a familiar and recurring evil,” Sotomayor wrote. “That evil often presents itself far more subtly than it has here. 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.”

A lawyer for Tharpe condemned the court’s decision.

“Today’s decision from the U.S. Supreme Court takes giant steps backwards from the court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice,” Marcia Widder said in a statement.

“As Justice Sotomayor explained in her statement concurring in the denial of certiorari, the court’s action in denying the petition had nothing to do with the merits of Mr. Tharpe’s claim – a claim that, she noted, ‘to this day … has never been adjudicated on its merits.’ Rather, she observed, the court was bound to defer to complex procedural rulings made by the federal district and appeals courts below,” Widder continued.

When the court first heard the case in 2018, it said that Tharpe’s legal team had produced a “remarkable” affidavit from a juror, written after the conviction, that presented a “strong factual basis” for the argument that Tharpe’s race had affected the juror’s vote.

The majority then cautioned, however, that Tharpe faced “a high bar in showing that jurists of reason could disagree” with the state court’s opinion.

Upon further review, the lower court again ruled against Tharpe, finding he had not met the procedural burdens necessary to reopen his case. The court also held that a 2017 Supreme Court opinion that said the secrecy of jury deliberations can be pierced when there is evidence that a juror relied on racial animus did not apply retroactively to Tharpe’s case.