DAY ONE

Death still arbitrary

Page 2 of 3

Disparity despite guidelines

Georgia lawmakers in 1973 did not intend to allow such disparate outcomes.

"We were trying to bring [the death penalty] down to the worst of the worst," said Peyton S. Hawes Jr., then vice chairman of the House Judiciary Committee.

Responding to the U.S. Supreme Court, the Legislature set guidelines to help prosecutors decide when to pursue execution. The statute specified 10 "aggravating circumstances" — such as killing a police officer, or killing two or more people — that could qualify for a death sentence. Other states passed new laws following that model.

But Georgia's new law still covered much more than the worst of the worst. The newspaper found 56 percent of all murders in the decade studied were still eligible for death, including hundreds of moderately aggravated cases. By allowing district attorneys to choose from such a large pool, the Legislature preserved the arbitrariness it had sought to eliminate.

Georgia's 49 DAs use their own standards and values to decide whether to pursue death. They assess the strength of the case, the character of the victim, the wishes of the victim's family and, sometimes, their gut.

"You know it when you see it," Douglas County District Attorney David McDade said.

Deals help some dodge death

The temptation to accept a plea bargain, particularly for a sentence of life without parole, can prove irresistible. The Journal-Constitution found prosecutors did so in dozens of murders that were among the worst in the state. Sometimes, DAs did not seek death at all.

Of the 132 murderers who made up the worst 10 percent of cases, only 29 landed on death row, the newspaper found. Paternoster, the Maryland criminologist, identified the most severe cases statistically by considering factors such as multiple victims, a rape or torture.

Prosecutors sought death in 103 of those cases, but later allowed nearly half of the killers to plead guilty. Some got life sentences and will be eligible for parole.

In one of the most chilling cases, two men killed five people in cold blood.

In 1995, Alvin Smith and Ricky McCoy walked into a McFrugal Auto Rental office in East Point. A drug dealer had offered them cocaine to kill an employee.

Keith Hadley / AJC (ENLARGE)

When Gordy Foust's son, Todd, was shot and killed during a Jan. 6, 1995, armed robbery at an Atlanta auto rental store, he pushed for the death penalty for the killers. but the killers got life sentences. • Video

Their target was not at work, so Smith and McCoy decided to rob the store. Only Todd Foust, a fastidious 23-year-old manager and youth baseball coach from Douglasville, stood in their way.

Foust begged for his life. Take anything you want, even the keys to my van, he said. Smith bound Foust's hands and feet with duct tape, then stood over him and fired a fatal bullet into his head.

Smith and McCoy drove a stolen rental car to rob another McFrugal store, where Smith executed a manager and customer.

The two men confessed a few days later. McCoy also admitted helping to rob and kill two drug dealers; Smith said he took part in one of those murders.

Fulton County prosecutors filed court papers seeking death. But a year later, both killers struck deals that let them avoid it. McCoy's deal allowed the possibility of parole.

Prosecutor Henry Newkirk, now a judge, agreed the killers deserved to die. But he said then-District Attorney Lewis Slaton wanted the certainty of a deal.

"A bird in the hand is worth two in the bush," Newkirk recalled Slaton saying of the deal. Slaton, who fretted over the expense of capital trials, died in 2002.

Foust's father remains livid to this day.

Gordy Foust and his son had reconciled several months before the killing. They had seen each other rarely until Todd paid a surprise visit and apologized for losing touch. Soon, Todd joined his dad on the drag-racing circuit.

Foust said recently he can't imagine the terror his son experienced in his final moments.

"I'm not so sure those walls outside the prison are there to keep people like them in or to keep people like me out," said Foust, 66. "If you don't give these people the punishment they deserve, there is no punishment anymore."

In the five-county Brunswick circuit on the Georgia coast, prosecutors probably would have rejected a similar plea deal.

Three months before the McFrugal slayings, Warren King killed an Appling County convenience store clerk in a bungled robbery. King and his cousin held up Karen Crosby, 23, as she walked to her car after closing. King's cousin used Crosby's keys to open the store but triggered the alarm. Before fleeing, King shot Crosby twice.

King got a death sentence in 1998 and awaits execution. Overall, prosecutors in Brunswick were 14 times more likely to seek death than those in Fulton for similar crimes, the Journal-Constitution found.

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