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Pouya Dianat / AJC

Kevin Scott Brown was fatally shot in 1994 at a Domino's Pizza in Augusta. Prosecutors sought death for his killer.

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DAY THREE

Divided about death

Prosecutors in Georgia are at odds over armed-robbery murders; some seek death, others almost always seek life. Juries tend to favor life sentences.

• Death penalty for certain crimes could be on way out

By HEATHER VOGELL and BILL RANKIN
The Atlanta Journal-Constitution

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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Comments

By Steiner

Apr 11, 2008 10:19 AM | Link to this

As far as prisoners being fed slop and having inadequate health care well, they should have thought about that before they committed the crime.
There should be public executions and if people don't like it, get yourself a gun and we will have a war and if you win you can have your way. But after I win, we will have public hangings with a nominal admission fee with the proceeds going to the victims family. I would also extend the death penalty to someone who commits three violent felonies even if no death results from it. If the Supreme court ruled against it, they would be ignored and if anyone came down to enforce their order, they would be kicked in the rear and sent packing. Now that is real justice folks.

By Agnes Cowan

Dec 1, 2007 4:56 AM | Link to this

Now 80, I have fought against the death penalty for most of my life. My romance/mystery novel, Rachel's Redemption,is a many/faceted story demanding of the reader a second look at many moral issues shaping our laws and attitudes. The integral story-line of the book involves a horrendous miscarriage of justice in the case of one heartbreaking situation where the death penalty
vote of one juror virtually destroyed the juror.

By Carrie Hedrick

Nov 6, 2007 7:23 AM | Link to this

I believed in the death penalty and the justice system when I was in my 20's and didn't read very much. We have lawyers,police officers, judges, and D.A.'s who lie and bury evidence. Hell, the officers involved in the court house shootings lied in an investigation regarding their fellow officer and a judge in the Brian Nichols case and none of them were even fired. If I lied during an investigation of a traffic stop I would be in prison. We also have recently seen a number of convicted rapist, and a few men that have been convicted by eyewitness testimony that have been released due to DNA evidence. So, how can we put a person to death with so many problems with the people we hire and elect to oversee our court system? I'm all for the death penalty, especially for child molesters and child murderers. However, we can't do that when we have so many people who LIE on all sides of a case. And if you want to stop overcrowding, quit putting people in prison for 20 or more years for having marijuana and letting child molesters out in 5 to ten years on parole so that they can destroy another child's life or take a child's life! Save the room for rapists, murderers, and child molesters.

By George S. Ellington

Oct 8, 2007 2:12 PM | Link to this

The death penalty is not used often enough if you ask me; Think of the many lives that are taken daily the rapes committed and the many millions of hollers in drugs sold on our streets daily. The only crime is that when the death penalty is handed down by the courts it is seldom carried out people stay on death row 15, 20, 25 years and in some cases die while waiting to be executed. And who ever came up with the idea of lethal injection has never lost a loved one to a capital crime or had a teenager get strung out on drugs because the only deterrent to crime is fear and what fear does a prisoner get from looking lethal injection in the face NONE Keep the electric chair, The gas chamber, hanging and firing squad and USE them on a regular basis like they are intended to be used and you will see the crime rate in this country drop overnight. Why should we care if an electrocution is botched on occasion did the person that suffers a botched execution even stop to think of his victims pain or the pain his actions would cause the loved ones left behind I seriously doubt it. The execution age needs to be set at 18 in my opinion at 18 you are old enough to distinguish right from wrong and there is no reason an 18 year old who is legal to die for his country can not die for his crimes if they are serious enough to warrant such a punishment! So my hat goes off to Texas (300 so far way to go) and Florida in leading this country in the executing of their inmates all I say is keep up the good work if it were left up to me we would empty the prisons in this country in one good weekend of non stop executions save the money it cost to house these animals and make the streets safe for our women elderly and children. It is not fair for Robert Lee Yates who killed 13 prostitutes or Gary Ridgeway who has been charged with the deaths of 48 young woman including the daughter of a friend of mine and just yesterday Robert Browne who is already serving time in Colorado for murder has admitted to killing 50 people in California, Mississippi, New Mexico, Oklahoma and Washington, as well as one in South Korea The easy answer is these losers deserve to die by execution instead of the different police departments making deals such as tell us what you know and we wont execute you. This is not fair to the victims nor the families that are left behind, in my opinion these killers did not have any regard for their victims so why should we have any regard for them. It also is screaming out to other go ahead and kill someone and we will let you live with no threat of execution! Capital punishment is a deterrent for crime and you will see the crime rate drop when the death penalty is used like it one was in a bygone era!
I am also for the idea of whipping or caning, Singapore canes their inmates and they have very little crime. If it were up to me we would be whipping inmates on the courthouse square especially those who molest kids or hurt the elderly! I also feel that we should empty our prisons of all of the people that are locked up for petty crimes and draft them into the military! If my ideas were a reality this world would be a paradise!
George S, Ellington

By George S. Ellington

Oct 8, 2007 2:10 PM | Link to this

By SueB

Oct 4, 2007 2:22 AM | Link to this

The death penalty has been used for centuries, and publicly too. Do you see it has had any effect? Did people stop killing each other? Do you see public executions as a step forward for civilisation?

My answers are no, no and no.

The death penalty feeds into the cycle of violence, keeping it spinning forever.

By red

Sep 25, 2007 8:09 PM | Link to this

we have 2 problems in Ga currently. Prisons are over-flowing, and the crime rate is rising. Solve 2 problems with 1 solution... that is legal.
Death penalty. No more sitting in prison for life... just hang.
Bring back public hangings and you will quickly see the crime rate plummett.
Can you see it now?>
On the 2nd Thurs of each month, we gather at the local county courthouse, to see the wooden gallows do their job. Hang them up,... read their crime... listen to their mamas cry.....
Crime will no longer be an issue, and neither will over crowded prisons.

By kristie

Sep 25, 2007 6:18 PM | Link to this

i beg to differ with you, they don't have the use of computers, and 3 meals a day well if you think that the slop they serve is a meal then so be it!!! what family most family go on about there way and forget about them. healthcare what a joke, they would rather let you suffer than fix your teeth or see what is wrong with you medically. until you've walked in a prison or suffered as a family member you need to really know the true facts!!! you will be amazed at how these men/women are treated. yes, i'm sure you suffer from being a part of the victims family but have you ever heard of the word "forgiveness" then maybe you can heal..........

By Defender

Sep 25, 2007 4:33 PM | Link to this

As a defense investigator, I have met with, interviewed, shook hands with, and even hugged murderers; including some facing the death penalty. A few points for each of us to consider:
1. If you think a convict in prison has an easy time, no matter what the media says, you are sadly mistaken. Inmates have the "comforts" to keep them pacified - without them, they would probably riot. Try to arrange a tour of a prison - it is NOT pleasant!
2. At this time, there have been over 200 people released from prison AND death row: because they were innocent, convicted of crimes they did not commit. Knowing this fact makes it very difficult to support the death penalty, doesn't it?
3. I feel extremely bad about the victims and their families - they should not have ever been through what they have. But ask yourselves this question: Is the victim resurrected when a murderer is executed? Does it really make the families feel better? No, it doesn't.
4. Consider the amount of money it takes to bring a defendant to trial: police to investigate & arrest; investigators to prepare the case; prosecutors; etc. In the case of an indigent person, how much is available to defend that person per our CONSTITUTION? The amount spent to prosecute is so far beyond what is available to defend that there is no comparison. Remember the 200+ released from death row!
5. Want to make the justice system better? Petition your State Representative to make certain funds collected and intended for the indigent defense system are actually USED for that purpose - currently, those funds are being redirected to fund "pet projects". THAT is why you see the news about GPDSC being broke!

Before you claim support for the death penalty, take the time to research it. You will be amazed at what you find!

By Raiderbeater

Sep 25, 2007 4:02 PM | Link to this

I have a wild and crazy idea.....If someone kills another person unprovoked , they should be killed in return. What a wild idea, I guess I solved the big "problem" that all these former liberal college students....oops I mean legislatures run into. It's a happy world....Brian Nichols just was raised bad. 20yrs and parole ought to clean him up...he behaves so well in the courtroom already. Can't you see the improvement???? The only reason people want him to get the death penalty is because everyone saw what happened...I guarantee every unprovoked killer would get the death penalty if the jury could look into their eyes when they snuffed the life out of another person.

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