DeKalb, Fulton juries resist giving death penalty

After the death penalty trial of Brian Nichols, Fulton County District Attorney Paul Howard plans to seek the ultimate punishment in eight more murder trials.

In adjacent DeKalb County, District Attorney Gwen Keyes Fleming’s office is scheduled to make its opening statement in a death penalty trial Monday. And she is seeking death sentences in two more pending cases.

Getting death sentences in those cases could represent the turning of a historical tide. Fulton County juries went eight years without approving a death sentence until this summer. In DeKalb County, the last death sentence was 19 years ago.

Both counties have large African-American populations, and numerous studies and opinion polls have found blacks more likely than whites to suspect bias in the criminal justice system and to oppose the death penalty.

But Howard and Keyes Fleming, both African-American prosecutors, argue that some cases are heinous enough to merit a death sentence.

Howard’s office won a death sentence this summer for a man who shot to death three people, including a child.

Keyes Fleming approved a death penalty prosecution against Clayton Ellington, who goes on trial Monday on charges he hammered to death his wife and twin 2-year-old sons.

DeKalb has two other death penalty cases pending: one involves another child killing, and the other the slaying of two police officers.

Keyes Fleming declined to be interviewed about jurors’ attitudes toward the death penalty, instead issuing a brief statement expressing her “faith in all our jurors.”

In Fulton County, Howard’s white predecessor, Lewis Slaton, complained that jurors were too reluctant to impose the sentence.

Howard, who was elected to replace Slaton in 1996, said the county’s jurors now are becoming “educated” on the appropriateness of the death penalty in heinous cases.

“For a long time in our county, we never had a death penalty case at all, and we are at an early point in our county of asking our citizens to do that,” Howard said.

Polls confirm pattern

Race is far from the only factor considered by the jury consultants who rack up large fees considering how jurors’ beliefs and life experiences might influence

their decision in a particular case.

But decades of public opinion polls confirm that African-Americans are less supportive of the death penalty than whites, although support among both groups has fluctuated considerably.

An average of Gallup polls conducted from 1991 to 1994 found 56 percent of blacks were in favor of the death penalty. That number had dropped to 40 percent by mid-2007 — still considerably higher than the 27 percent black support recorded in 1972.

The Atlanta Journal-Constitution surveyed 18 African-Americans at a recent class of the DeKalb Neighborhood Leadership Institute, a training program for community leaders.

Nine of the 18 said they were against the death penalty, four in favor and five undecided. Some opponents cited the preponderance of black defendants and cases in which new evidence disproved old convictions. Some said taking a life was immoral.

“I used to believe ‘an eye for an eye,’ but now I believe in rehabilitation first,” Tracy J. Brown said.

Correll M. Johnson said he once opposed the death penalty, but no longer.

“When I was younger, I didn’t have kids and a wife, so now that I do I think in terms of their safety first,” he said.

Prospective jurors who say under oath that they never would vote for the death penalty are excluded from juries in capital cases.

But jurors’ doubts, beliefs and life experiences — as victims of discrimination or crime — go into the jury room along with the evidence in a case, said an expert on juror attitudes, John W. Clark III.

Clark, the criminal justice program coordinator for the Atlantic region of Troy University, based in Norfolk, Va., has interviewed about 3,000 people who served on juries in Alabama and Texas.

Clark said African-Americans harbor more distrust of the criminal justice system, but they — like all jurors — also are influenced by how much crime they believe is occurring in their communities.

“Perception is very important in the criminal justice process, and fear is a very powerful emotion. … You may get a situation where people say, ‘We’re going to take back our community, we’re going to punish people,’ ” he said.

Sentencing options

Tom West, a veteran defense lawyer in Georgia death penalty cases, said there is another factor besides race at work on DeKalb and Fulton juries.

“I think it comes down to they’re a little more urbane. … They’ve been exposed to more ideas,” West said. That may make them more open-minded about defendants than jurors “from a more rural, insular environment,” he said.

Urban jurors may be less shocked by violent crime, said Atlanta lawyer and former Fulton Assistant District Attorney Al Dixon.

Dixon was the prosecutor who successfully asked a Fulton jury to sentence cop killer Gregory Lawler to death in 2000. As it turned out, that was the last jury-imposed death sentence there for eight years.

Dixon said he believes the addition of life without parole as a sentencing option in 1993 reduced the likelihood of death sentences. Jurors also may be influenced by more recent high-profile cases of death row inmates who were proved innocent, he said.

But Dixon also went to the scene where a man, a woman and their 3-year-old son were shot to death in June 2004, and he understands why a Fulton jury sentenced Demetrius G. Willis to death for that crime this summer.

“It was a very egregious murder, and I think to me [sentencing] depends more on the facts of the case, for both African-Americans and Caucasian jurors,” Dixon said.

Harvard University researchers Lawrence D. Bobo and Devon Johnson reported in 2004 that experiments with black and white Americans showed both groups softened their views on punishing drug crimes after considering possible racial prejudice.

But the same technique had far less effect on their attitudes toward capital punishment.

In an article in the social science scholarly journal

Du Bois Review, Bobo and Johnson recounted how a woman in an all-black focus group complained that her son had been arrested on a “trivial” marijuana charge and that his school had

metal detectors and police officers.

But when a moderator asked the group whether society should use the death penalty “more aggressively,” the same woman replied: “Yes we should! People have been sitting on death row for years. It is time to electrocute them. Make room for the new ones!”