Register now, it's free!
Log In | Customer Care

[an error occurred while processing this directive]

DAY FOUR

Is the review process fixable?

Citing overturned cases only part of problem, critics say

By BILL RANKIN
The Atlanta Journal-Constitution

Critics charge the Georgia Supreme Court's proportionality review would still be useless if the court stopped citing overturned cases.

Defense lawyers have repeatedly complained the state's highest court conducts a narrow review that cannot determine whether a death sentence is truly out of line when compared to other similar cases. But the court has refused to expand its review.

After Georgia reinstated capital punishment in 1973, the court conducted a far more extensive review of death sentences, comparing them with similar cases in which killers received life in prison. Through 1981, the court reversed 10 death sentences on proportionality grounds.

But with rare exceptions, the court more than 20 years ago dropped life sentences from its pool of comparison cases. The court has not thrown out a death sentence on proportionality grounds since 1981.

By excluding life sentences, critics say, the court cannot know when a death sentence is out of line.

For a husband who kills his wife in a fit of rage, for example, the court's review looks for similar cases that also received a death sentence. But the court would not know how often juries imposed life sentences in such cases or how many times prosecutors had not sought death at all.

"It's simply not meaningful because the court never looks to see whether there are similar or worse cases in which death was not given," said Amy Donnella, a Pennsylvania lawyer who litigates death cases in Georgia.

Chief Justice Leah Ward Sears said the court must rule whether the facts of a particular murder warrant the death penalty. If they do, she said in a statement, it does not matter whether other murderers whose crimes were equally severe escaped the death penalty.

Georgia's statute does not require comparing a death sentence with others that received life. It says the court must determine whether a death sentence "is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."

In January 2006, an American Bar Association team of former judges and prosecutors, law professors and defense lawyers described Georgia's proportionality review as "cursory" with "limited value."

The team said Georgia should compare death sentences with a much larger pool of cases, including those in which death was never pursued. Until it does, the review is "incapable of discovering potentially serious disparities," the report said.

Rome attorney Norman Fletcher, who served 15 years on the court, said he became concerned as chief justice about inequities in seeking the death penalty.

"Some [crimes] were so awful and the DAs didn't seek it," he said. "Some that got death sentences shouldn't have been there."

Fletcher said a clerk helped him look for a better way to conduct reviews. But they could not come up with a reliable process to distinguish more aggravated murders from less heinous ones, he said.

"There was no single person on the court with staff or time to actually ferret out every possibility and come up with a new formula that would help to weed out the cases that shouldn't proceed as death penalty," he said.

Fletcher expressed his frustration in a 2002 opinion, in which he acknowledged the court did not know whether its review cited a large or small percentage of factually similar cases.

"Perhaps," Fletcher concluded, "the process for determining whether a sentence is disproportionate can be improved and, if so, then it should be done."

Related Subjects

Expand this list

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 DA�s. It would make DA�s 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 shouldn�t DA�s 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 it�s 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 shouldn�t 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 don�t think there is a very good chance that a jury in their county will vote unanimously for it. That�s why there are so few death penalty prosecutions in DeKalb County and Fulton County � because it�s almost impossible to get a unanimous vote for death in those counties.

If the death penalty isn�t sought in some counties because, no matter how heinous the crimes, juries won�t 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.

[1 2] next