Death sentence for killer ‘freakish’

In 1994, Mark McClain shot and killed the manager of a Domino’s Pizza outlet in Augusta in a 2 a.m. robbery that yielded little more than $100.

The next year, McClain was one of 55 people convicted in Georgia of committing a murder during an armed robbery.

Prosecutors sought the death penalty against 16 of those 55 killers and declined to seek it against the rest. McClain was the only one sentenced to die. Friday, the state Board of Pardons and Parole denied McClain clemency, and he is scheduled for execution at 7 p.m. Tuesday.

In their final appeals, McClain’s lawyers contend the condemned inmate’s sentence was out of line when compared with those in similar armed-robbery murders.

“Since Mr. McClain’s death sentence was imposed, literally hundreds of defendants in similar cases — and for the most part cases involving far more horrendous facts — have escaped even the prospect of being sentenced to death because prosecutors don’t seek it,” said Brian Kammer, one of McClain’s lawyers.

“His death sentence on the facts of this case, as tragic as they are, is unique and represents an arbitrary and freakish imposition of the ultimate punishment.”

Richmond County District Attorney Ashley Wright noted that McClain’s jury heard the evidence and recommended a death sentence, which has been upheld on appeal. “The case is following the proper progression,” she said.

The jury condemned McClain for killing Domino’s manager Kevin Brown, 28. As a delivery man returned to the store at closing time, McClain pulled out a revolver and forced his way in. The delivery man fled.

McClain ordered Brown, who stood behind the counter, to hand over the money. He then fired a single shot that struck Brown in the chest, killing him.

At trial, McClain testified he never intended to shoot Brown, only to rob the store. But as he left, McClain testified, he heard a noise and thought the 5-foot-8, 450-pound manager was coming toward him. “I turned around like this right here, and the gun went off,” he said, demonstrating to the jury.

Later McClain testified, “I didn’t even know if he got hit.”

Then-District Attorney Danny Craig called McClain’s story “hogwash.” McClain was a hardened criminal involved with prior armed robberies who could have left without firing a shot, Craig said.

“The defendant had a choice, you see,” Craig, now a judge, told jurors during the November 1995 trial. “He preferred to kill.”

At sentencing, Craig asked jurors what kind of message they would send if they spared McClain’s life. Would they want an imaginary billboard at the county line that read, “Welcome to Richmond County, where if you kill our people, we find a way to give you a fifth, sixth or seventh chance”? he asked.

Brown was an only child. His mother died in 1977 and he lived with his father, Albert Brown, who is now deceased.

At trial, Albert Brown told jurors his son’s murder left him devastated.

“His death has caused me to be in a state of deep depression, and I still am waiting to come out of it,” he testified. “Kevin was not only my son, he was my friend. I can’t put into words how this loss has affected me.”

The Atlanta Journal-Constitution examined the facts and circumstances behind 2,328 murder convictions in Georgia from 1995 through 2004. In a series published in 2007, the AJC found Georgia law has fallen short of ensuring a predictable and even-handed application of the death penalty. Instead, death sentences were being arbitrarily imposed, the investigation found.

The main reason was the way state prosecutors handled armed-robbery murder, one of Georgia’s most prevalent capital crimes.

In 1995, McClain’s case proved remarkable because it was the only one of its kind. Over the decade studied, seven other men were sentenced to Death Row for armed-robbery murder. Another 432 got life in prison.

These armed-robbery murders, like McClain’s, did not involve torture, maiming, murder-for-hire or police killing.

Long before McClain’s case went before a jury, his lawyers sought to bar the death penalty on grounds it would be excessive and disproportionate. “If this case was being tried in any other judicial circuit in Georgia, or prosecuted by another prosecutor, it would not be a death-penalty case,” said a motion filed by McClain’s lawyers.

“There was no beating or stabbing, no rape or other physical or emotional torture and no protracted period of pain or suffering,” the motion said. There was no kidnapping and only one victim. The motion cited more than 100 murder cases with similar or more aggravating facts that did not get the death penalty.

The lawyers also sought permission to review the district attorney’s files to see how similar cases were handled. But Judge Carlisle Overstreet denied the request.

When the Georgia Supreme Court heard McClain’s appeal, it upheld Overstreet’s ruling.

As is required by law in death-penalty appeals, the state high court also conducted a “proportionality review,” a test that determines whether a death sentence is disproportionately severe compared to similar cases.

In 1996, when upholding McClain’s death sentence, the court cited 10 similar cases that had received death sentences to justify upholding McClain’s. But the AJC found that five of the 10 cases cited by the state Supreme Court had been overturned on appeal before the court’s ruling. All five of the inmates were later resentenced to life in prison; their cases also involved armed robbery.

In the other five cases, two men have been executed; one’s case was overturned, the other was later sentenced to life in prison, and one was killed during a fight after he escaped from Death Row.

Michael C. Garrett, one of McClain’s trial lawyers, said his client’s death sentence makes no sense.

Garrett noted that two months after McClain’s trial, he defended another person facing the death penalty in Richmond County.

In April 1994, Chester Simpkins and an accomplice entered the Crack Shot pawn shop. Simpkins was carrying a handgun he had previously stolen from the store. When they got inside, Simpkins reached over the counter and shot Beverly Williford, 62, in the head, killing him.

Before entering Crack Shot, Simpkins told a witness he was going to “smoke” Williford. Even so, Simpkins was spared death. He is serving life without parole.