Death-penalty process blasted; appeals follow

When U.S. Supreme Court Justice John Paul Stevens recently criticized the way the Georgia Supreme Court reviews death-penalty cases, he appeared to be inviting legal challenges on the issue.

Georgia promised to ensure fairness in the application of the death penalty when it reinstated capital punishment in 1973. But Stevens said one facet of Georgia’s review to achieve that goal has become cursory and could result in arbitrary or discriminatory sentences.

“The Georgia Supreme Court … must take seriously its obligation to safeguard against the imposition of death sentences that are arbitrary or infected by impermissible considerations such as race,” Stevens wrote.

Lawyers defending capital cases said last week they are mounting new appeals. They will challenge the state Supreme Court’s proportionality review, which compares a death sentence with punishments in similar cases.

“We intend to challenge it,” said Atlanta veteran death-penalty lawyer Jack Martin, who represents a Towns County man.

Lawyers in the Office of the Georgia Capital Defender also are pursuing the issue.

“Obviously, at least one justice thinks it’s a valid issue,” said Mercer University law professor Tim Floyd. “Stevens seems to be sending an invitation.”

On Oct. 20, the high court turned down the appeal of Artemus Rick Walker, sentenced to death in 1999 in Macon County for killing and robbing a bank executive. The denial sparked a testy exchange between Stevens and Justice Clarence Thomas. Both agreed Walker’s appeal should be rejected, but strongly disagreed with the adequacy of the Georgia Supreme Court’s review.

Thomas took issue with Stevens’ criticisms, calling them “entirely without foundation.”

The Georgia Supreme Court has done nothing wrong and its proportionality review has been repeatedly upheld by the nation’s highest court, Thomas wrote.

Under Georgia law, the state Supreme Court must make sure a death sentence is not excessive or disproportionate when compared to punishment imposed in similar cases. The review is meant to ensure that capital sentences are not arbitrary.

The problem, Stevens said, is that the Georgia Supreme Court’s review compares a capital case only with cases that received death sentences, not similar cases that received life sentences.

Stevens, who was not joined by another justice, said the court conducts “an utterly perfunctory review.”

The Atlanta Journal-Constitution, in a series published last year, found that Georgia law has fallen short of ensuring a predictable and even-handed application of the death penalty. The newspaper researched 2,328 murder convictions over a decade and found death sentences were being imposed arbitrarily.

The AJC also researched all the state Supreme Court’s proportionality reviews from 1982 to 2007. The court once compared death cases with others that received life sentences, but it stopped doing so, except on rare occasions, in the 1980s. The court has not overturned a death sentence on proportionality grounds since 1981.

Separately, the newspaper found that the court was citing capital cases that had already been overturned on appeal to justify death sentences the justices were upholding. Nearly all of those cases later resulted in life sentences. The AJC found that 80 percent of the court’s rulings during this time cited at least one overturned case.

Walker’s appeal was decided by the Georgia Supreme Court on Oct. 9, 2007, two weeks after the AJC series. None of the 21 death cases the court cited to justify Walker’s sentence had been overturned.

Chief Justice Leah Ward Sears has said the court was taking steps to improve its process. But she said the court must rule whether the facts of a particular murder warrant capital punishment, and it does not matter whether other murderers whose crimes were equally severe escaped death.

“The court’s review is inadequate,” said Gerry Word, head of the state capital defender’s office. “We’re looking at cases we think are appropriate for a proportionality challenge and filing those throughout the state.”

Martin is pursuing a challenge for Clay Barrett, condemned to die for killing his best friend in 2002.

“These were two drunken friends who got in a provoked fight that ended in a gunshot,” he said. “We plan to show that, if you compare it to similar cases, it’s just not a death-penalty case.”