High court botched death reviews

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Citing overturned cases

In 1984, a judge threw out a DeKalb County death sentence because a crucial witness perjured himself. Defendant Howard Jones was set free because prosecutors lost key evidence and could not retry the case.

Yet the Supreme Court has cited Jones' sentence 20 times since then to justify other death sentences.

Court officials could not explain how Jones' reversal was overlooked. Nor would they disclose how the court tracks appeals.

Traditionally, a clerk appointed by the chief justice has done its proportionality research. The clerk, who has other duties regarding capital cases before the court, must be an attorney.

Death sentences can be overturned by: the trial judge, the Georgia Supreme Court, a state court judge during a habeas corpus appeal, the federal courts or the U.S. Supreme Court.

Curtis French, a former death penalty clerk for the state Supreme Court in the 1980s and early 1990s, expressed surprise that the court's decisions cited so many overturned cases.

French said he would not have included a case in the review if he had known it had been overturned. "But there's no automatic notification by one court to the Georgia Supreme Court that relief was granted," he said.

The state Attorney General's Office knows when a death sentence is overturned or a new trial granted because it litigates death penalty appeals. The office notifies the state prison system and the local prosecutor.

Tracking appeals is often called "shepardizing," derived from Shepard's Citations, a legal resource that has kept up with court cases since 1873.

The Journal-Constitution's analysis used Shepard's to determine the outcomes of some death sentence appeals. The newspaper supplemented that information with rulings retrieved from county courthouses and the LexisNexis legal database, and with case histories initially compiled decades ago by a volunteer for the American Civil Liberties Union.

In 1984, the U.S. Supreme Court ruled that a proportionality review is unnecessary if a state's law does not require it. A number of states later repealed their proportionality reviews, but Georgia did not.

Other states have struggled with proportionality reviews.

The North Carolina Supreme Court overturned a case on proportionality grounds in 2002, throwing out a death sentence for a woman who plotted her husband's murder.

Florida law does not require a review but its Supreme Court conducts one anyway. In May, the court found a death sentence disproportionate for a condemned killer with a long history of mental illness.

In July, the Florida court vacated Christopher Jones' death sentence for a 2001 killing during a robbery. Finding no evidence of premeditation or intention to eliminate a witness, the court said the sentence was disproportionate to similar cases.

Entitled to 'meaningful review'

Defense lawyers, who aggressively litigate many issues in capital appeals, have rarely challenged the state Supreme Court's review for citing overturned cases.

Seven years ago, lawyers for Troy Anthony Davis, a Savannah man sentenced to death for killing a police officer, challenged his proportionality review. The appeal noted that four of the six sentences cited in Davis' review in 1993 were overturned either before or after the Davis decision.

Justice Carol Hunstein wrote the ruling that rejected Davis' challenge. The proportionality review is concerned with the way juries reacted to the evidence in similar cases, she wrote, and it is "irrelevant" if those decisions were reversed for reasons unrelated to the juries' deliberations.

Hunstein declined comment for this article.

But the Journal-Constitution found the court's proportionality reviews have cited dozens of "similar" sentences that were overturned for reasons concerning evidence and jurors' assessment of the evidence. They include cases in which:

• The prosecution failed to prove an aggravating circumstance, a required element of a death sentence.
• A defendant's lawyers didn't show the jury their client had saved two people's lives in the years before the murder.
• A defendant's lead lawyer slept through parts of the trial. The defense team did not even know the key witness could not identify the defendant.

Other sentences cited by the court to justify death penalties had been overturned because the racial composition of the jury pool did not reflect the community. One case was thrown out because the district attorney excluded blacks and women from the jury pool.

Sears, the chief justice, acknowledged that cases cited in the court's proportionality reviews may have been reversed.

"When this court cites older cases, it is primarily interested in what evidence the juries in those older cases actually heard at the time that led them to impose the death sentence, not what evidence those juries should have heard," she said in a prepared statement.

Tim Floyd, a Mercer University law professor, said the court should conduct new reviews for condemned prisoners whose proportionality reviews cited a substantial number of overturned cases.

"They are entitled to a meaningful review — but not the way the court has been doing it," Floyd said. "A meaningful proportionality review is essential under the Georgia statute."

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