Divided about death

Mark McClain burst into a Domino's Pizza in Augusta late one night, snatched $130 from the register and shot the manager dead. In 1995, a jury condemned McClain to die.

The sentence proved remarkable. McClain was one of 55 people convicted that year of a murder involving an armed robbery. Prosecutors sought death for 16, but only McClain was sentenced to die.

Georgia continues to pursue the death penalty unevenly since passing reforms three decades ago to make it more uniform, analysis by The Atlanta Journal-Constitution shows. A primary reason is the scattershot handling of a single common crime: armed-robbery murder.

Some of the state's 49 district attorneys rarely — or never — seek death for such murders. Others often do.

As a result, the location of the crime often drastically alters a killer's chance of facing death, the newspaper found. A racial dynamic exists, too: From 1995 through 2004, prosecutors were about six times more likely to seek death when an armed robber killed a white person.

Prosecutors handled other death-eligible crimes much more consistently.

The findings are significant because armed-robbery murder is one of the most prevalent capital crimes in Georgia. Killings like the one by McClain made up a third of all death-eligible murders over the decade studied.

Prosecutors who defend the system say the variation simply reflects different community values. Murder cases are too complex to compare, they say.

But some supporters of capital punishment say that making fewer armed-robbery murders eligible for death would focus prosecutors' attention on the most heinous. It could also address criticism that Georgia's penalty is costly and arbitrary.

"You're accomplishing not only your primary goal of seeking the death penalty against the worst of the worst, but you're preserving society's resources," said former district attorney Alan Cook, director of the Prosecutorial Clinic at the University of Georgia's law school.

Lawmakers, however, have not revisited the question of which murders should qualify for execution since 1976, leaving Georgia's death penalty law frozen in time.

Lessons in geography

McClain was one of eight men sent to death row for armed-robbery murder in the decade studied.

Another 432 got life in prison. Allen Donterrius Scott was one of them.

Two years after McClain's trial, Scott walked into a Domino's in another city — Albany — and ordered workers to open the safe.

Pouya Dianat/AJC (ENLARGE)

Edward Monds was killed in 1997, while working at an Albany Domino's Pizza. Dougherty's district attorney did not seek death in the case, and Monds' killer, Allen Donterrius Scott, got life in prison.

Edward Monds told him the safe's time-release would not open for 15 minutes. Scott grew angry and pointed his gun at another worker. Monds, hoping to distract the gunman, said police were outside. Scott saw they weren't and shot Monds in the head.

Jurors took two hours to convict Scott but never had a chance to consider the death penalty. Dougherty District Attorney Kenneth Hodges hadn't sought it.

Over the decade, Dougherty prosecutors pursued death for one of the 15 armed-robbery murders in the circuit. Hodges said he couldn't recall why he didn't seek death for Scott. He said he reserves the punishment for the worst cases, and pursues it only after considering the evidence and juries' decisions on other Dougherty murders.

"I don't weigh it against Danny's case in Augusta," he said, referring to Danny Craig, the district attorney in the McClain case.

Working with University of Maryland criminologist Ray Paternoster, the Journal-Constitution analyzed a decade of armed-robbery murders with a single victim that did not involve torture, maiming, murder-for-hire, or police killing.

Georgia prosecutors sought the death penalty for about one in six such armed-robbery murders. But in some circuits, prosecutors behaved as if the crime were not eligible for death.

Sixteen court circuits could have sought death for it but never did. They included Fulton County, which had 79 convictions for the crime.

Though armed-robbery murders technically qualify for the penalty, Fulton District Attorney Paul Howard said the sheer number in Fulton makes it impractical to prosecute them as capital cases.

"We couldn't do it," he said. Fulton jurors know the crime isn't unusual and are unlikely to vote for death, he added.

In neighboring DeKalb, prosecutors sought execution for four of 46 armed-robbery murders, but allowed all four to plead guilty.

The two circuits' reluctance to seek death made killers there nearly seven times less likely to face capital prosecution for the crime than killers elsewhere in the state, Paternoster's analysis showed.

The practice in Fulton and DeKalb stands in sharp contrast to that in southeast Georgia.

Prosecutors in southeast circuits pursued execution for armed-robbery murders that others would have passed on. They sought death, for instance, against defendants who didn't pull the trigger and in cases with evidence problems that led prosecutors to eventually accept a plea — and allow a life sentence.

Stephen Kelley, district attorney for the Brunswick circuit, said armed-robbery murders make a bigger impression in his circuit.

"I would think that you probably find that in a smaller community that an armed robbery is more offensive than in the big city, where they happen more often," he said. "We don't like them down here in the Southeast."

Kelley sought death, for instance, in 1996 against three teenagers accused of killing a convenience-store clerk near Hazlehurst.

The victim, 49, was a retired Navy man known for gentle gestures such as making Mickey Mouse pancakes for his youngest son. At the time, his widow said she wanted the three teens to die. But the case proved riddled with problems.

A jury acquitted honor student Heather Nester, who drove the getaway car but said she did not know what the other two had planned.

Zachary Harper, the triggerman, was allowed to plead guilty for life without parole because of an evidence snafu in which a blood sample was destroyed, Kelley said.

Prosecutors continued to pursue death for accomplice John Marion even when it was no longer an option for the shooter. But Marion eventually entered a plea, too, for life in prison with possible parole.

Savannah defense attorney Terry Jackson said district attorneys in southeast Georgia are just playing politics.

"They don't differentiate between what deserves the death penalty and what gets votes," he said.

Rick Malone, former district attorney of the Middle Georgia circuit, said a district attorney's opinion on the death penalty is an "awful big deal" during elections in southeast Georgia. But he said prosecutors are doing what they think constituents want — and the law allows.

"They elect you and they expect something of you," he said.

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