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DAY FOUR

High court botched death reviews


Page 2 of 2

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.

PATH TO THE DEATH PENALTY
Prosecutors sought death in about one-fourth of eligible cases from 1995-2004, but resolved most of those with a plea bargain for a sentence other than death.
2,328 total murder convictions from 1995-2004
1,315 total cases eligible for the death penalty
344 cases in which the death penalty was sought
127 total death penalty cases going to trial
57* total death sentences
• Georgia juries sent 4.3 percent of eligible murderers to death row.
*Includes eight cases that were overturned and the defendants not resentenced to death.
 

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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Comments

By Robert

May 5, 2008 1:44 PM | Link to this

Pass a law that requires all people being brought before a grand jury for a death penalty case have legal representation, whether public defender or self paid. This would allow a person to at least have representation to combat overzealous DAęs. It would make DAęs think twice before indiscriminately applying the death penalty. It would also provide the grand jury with the whole picture instead of a one sided story. All county courts are not the same, have a state oversight that reviews all death penalty cases. Why shouldnęt DAęs and Judges have a state oversight committee review death penalty cases, have they something to hide. Others have stated this would be questioning their character and is more of a local issue. If itęs a local issue then the county that convicts a later exonerated person should be the one to pay compensation to that wrongly convicted individual instead of the state. If the state is the one to pay then why shouldnęt the state be interested in reviewing convictions.

By Michael

Sep 27, 2007 6:14 PM | Link to this

DP opponents always have to deal with idiots like lz who fumble through their diatribes against the penalty. These fools consistently make arguments such as comparing accidentally running over a child with accidentally shooting a child. Driving down a road does not have a great chance that a child will be killed otherwise we would have, based on the thousands of cars, hundreds of killings per week. Pointing a shotgun at a child, hmm, maybe you shouldn't do that. If everyone walked around the daycare, Kroger and any government agency with their loaded shotguns in tow we'd have a lot more "accidents."

Years ago there was a presumption in the law that if you used a gun that you intended to murder and that was based on the inherent dangerousness of taking a gun with you to the bank robbery or the family reunion. The presumption has since been changed to an inference so use of a gun doesn't equal murder.

So put down the pipe lz and go back to your DUI cases. As for Tina, it wasn't my Georgia where murderers were paroled after 7 years, you made that up. Before the 14 year eligibility law passed (in 1994) murderers were routinely serving at least 15 years or 23 years before parole. Wives that offed their abusive husbands -- maybe they did 7. Rhetoric and lies. The both of you.

By lz

Sep 27, 2007 4:51 AM | Link to this

Tina, get off your high horse and stop acting like a victim. We can all agree that anybody who murders anyone should be punished. The issue is who really deserves to die. If a gun accidentally discharged, then it is not murder regardless if a child was killed, an 80 year old or a dog. The attorney's lack of investigation into that fact is an omission. Should we put that person to death if the shooting was accidental? What happens if you are in your car and run over a child who wanders into the road? Should we put you to death for an accident? Stop acting like a victim and start trying to be objective.

By Greg Milman

Sep 26, 2007 12:56 PM | Link to this

One more reason why the process of Capital Punishment in this Country is irreversibley broken. If I was a Supreme Court Justice I would be ashamed to show my face.

By Rick

Sep 26, 2007 10:31 AM | Link to this

It's a given that prosecutors are not going to seek the death penalty if they donęt think there is a very good chance that a jury in their county will vote unanimously for it. Thatęs why there are so few death penalty prosecutions in DeKalb County and Fulton County ę because itęs almost impossible to get a unanimous vote for death in those counties.

If the death penalty isnęt sought in some counties because, no matter how heinous the crimes, juries wonęt vote unanimously for death, I just don't see how the Supreme Court of Georgia can ever hope to achieve a meaningful proportionality analysis.

Perhaps the analysis might be meaningful if it took into account only crimes committed in a particular county. So for instance, if someone is sentenced to death in Gwinnett County, then the analysis would be confined to all other death penalty prosecutions in Gwinnett County.

As soon as the Supreme Court tries to extend the analysis beyond a particular county, it will find itself analyzing crimes and punishments originating in localities where the death penalty is never or only seldom sought. There's no way that kind of analysis will ever produce valid results. And this of course leads back to the first part of this series dealing with the "geography" of the death penalty. It's where a person commits his or her crimes that counts.

By Roy Yunker

Sep 26, 2007 10:19 AM | Link to this

You may wish to not jump so quickly to conclusions as our semi-competent local "newspaper" likes to do. Their research methods are flawed, and they would do well to include someone on staff who both knows how to Shepardize, as well as what "overturning" a case actually means. Start by actually reading Jones v. State, 243 Ga. 820, and realizing that even though Jones was not executed, the law that sentenced him to death is still valid and NOT overturned.

By Just Nasty and Mean

Sep 26, 2007 9:42 AM | Link to this

This just points out another government entity that does not do the good work the taxpayers are expecting and paying for. Our public officials are not willing or not able to do the "due-diligence" to perform their jobs efficiently. In many cases, prosecutors and DAs are not willing to go to court, but prefer to plea bargain down the charges--leaving the public to deal with recurring criminals back on the streets. How many times have we seen perpetrators who have lengthy criminal histories--walking the streets until they finally commit some heinous crime, only to come to an inept and incompetent state court system that leaves them open to get off the charges--again!
I am not smart enough to figure out how to fix this, but I can easily recognize the public and taxpayer is not being served by these incompetent morons not doing their jobs.

By Tina

Sep 26, 2007 9:29 AM | Link to this

Forget, for one moment, the overweening fixation on murderers' mitigating virtues and consider the real injustice that's being inadvertently revealed here: a system designed to serially degrade victims, minimize acts of violence, and exploit an intricate system of loopholes by any means possible in order to provide the worst felons endless chances to escape punishment while overburdening the courts until they cannot function, and other violent felons are simply not tried in the first place: the defense bar's endgame.

A father gets a shotgun because his child is making too much noise and blows away his ten-year old son, "accidently," an accident that encompassed getting the gun to threaten a defenseless child and then putting a bullet through his body. This is what the AJC presents as their strongest evidence that the death penalty review system is broken -- because, by their lights, he shouldn't have been on death row in the first place -- they evidently concur with Judge Bentham, who calls the crime "only an angry domestic confrontation."

I'll say it's broken, when it's considered a noble argument that it's a lesser crime when the child you kill is your own.

"Only an angry domestic confrontation." Nobody else is society could say the type of thing Judge Bentham says about this case without being regarded as a fool, or far worse. And that speaks volumes about the extreme injustice we've fostered by credulously buying the legal fiction that only defendants have constitutional rights that should be defended.

That legal fiction led us directly the the system we had until recently, when murderers routinely walked out of Georgia prisons after serving seven years. Now it's up to twenty, in many cases, because the public got sick of a system where judges and the parole board showed little or no concern for justice or public safety (things commonly termed "vengefulness"). Don't think the real time served for "life" won't go down again if the death penalty is eliminated. There is already a movement organizing within the anti-death penalty camp to oppose life-without-parole next.

By Carla

Sep 26, 2007 8:17 AM | Link to this

If our prosecutors are using overturned cases as a means to justify death sentences, aren't they just asking for it?? I mean I realize sometimes they need to be creative, but don't give the defense an easy out. Research is key in these types of cases. Without it, what's the use of going to trial.

By Michael

Sep 26, 2007 12:40 AM | Link to this

A similar thing happens in non-death penalty cases and in civil cases. Courts cite bizarre cases or the dicta therein as authority and lawyers just scratch their heads and rail against the Courts of Affirmance.

Fletcher blames the law clerks. Give him the needle for admitting that sloppiness and cite some slip and fall case as authority for that proposition.

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