High court consistently reinstating death sentences

Georgia judges in recent years have tossed out one death-penalty sentence after another, giving killers the hope they may not face the prospect of execution by lethal injection.

But the Georgia Supreme Court has overturned those rulings and unanimously reinstated the capital sentences, a review by The Atlanta Journal-Constitution has found. Over the past five years, the state high court issued eight straight such decisions that pleased prosecutors who obtained the capital sentences and frustrated defense attorneys fighting to keep their clients off death row.

The AJC examined cases tracked by the Georgia Appellate Practice & Educational Resource Center, a nonprofit that represents condemned inmates after their initial appeals are exhausted.

Gwinnett County District Attorney Danny Porter said he was gratified in July when the state Supreme Court reinstated the death sentence against Michael Wade Nance, who shot and killed a man during his escape from a 1993 robbery of a Lilburn bank.

“I’m hopeful these decisions will send a message to the Superior Court judges,” Porter said. “The standards they have been applying to the legal issues are simply wrong. It’s a mystery to me why they’re doing it.”

Defense attorney Jack Martin called the Supreme Court rulings “a troubling pattern.”

“So many of these cases are extremely fact intensive,” he said. “The Georgia Supreme Court is supposed to defer to the judge who heard the testimony, considered all the evidence and, quite frankly, spent more time going over the record.”

The rulings were issued in cases filed after the condemned killers lost their first round of appeals before the state Supreme Court. They begin as civil lawsuits called petitions for habeas corpus that are filed in the Superior Court of Butts County, home to Georgia’s death row. To help that court keep up with the capital litigation, judges from across the state serve as visiting judges and preside over sometimes lengthy hearings before issuing final opinions.

These judges’ decisions almost always hinge on the performance of the death-row inmates’ lawyers. The judges have granted new sentencing trials after finding an attorney’s work was so deficient that there was a reasonable probability of a different verdict had the inmate had an effective lawyer.

In Georgia, where a unanimous verdict is required for a death sentence, this means a court must find that had it not been for the lawyer’s errors, at least one juror would have voted for a lesser sentence.

Among the rulings overturned by the state Supreme Court:

• Judge David Irwin threw out the death sentence against Andrew Cook, who used an assault rifle and a handgun to kill two Mercer University students parked next to Lake Juliette. Irwin found defense attorneys should have properly investigated and presented psychiatric evidence indicating Cook was mentally ill. Cook was executed in February.
• Judge Michael Clark determined Donnie Cleveland Lance, who killed his ex-girlfriend and her new boyfriend, needed a new sentencing trial because Lance's lawyer failed to conduct a mental health investigation. Had the lawyer done so, jurors would have heard that Lance had been exposed to toxic fumes, ingested gasoline as a child, been shot in the head, abused alcohol, suffered from frontal brain damage and been hospitalized for mental illness.
• Judge Kathlene Gosselin found that William David Riley, convicted of killing his three children when he burned down his mobile home, deserved a new trial. She found Riley's lawyer committed repeated mistakes by failing to: present evidence that Riley suffered from two mental illnesses, use his arson expert and play a recording that would shown Riley had been ordered to move his car when the home was on fire to rebut assumptions he chose to move the vehicle rather than rescue his children.

In most cases, the state Supreme Court found, or even assumed, that the condemned inmates’ lawyers performed below acceptable standards. But the court also found this was not so prejudicial to affect the expected outcome.

In Lance’s case, for example, the court cited aggravating testimony from a jailhouse snitch who told jurors that Lance bragged he’d hit his former girlfriend “so hard that one of her eyeballs stuck to the wall.”

The last time the state Supreme Court upheld a state court judge was in June 2008 when it agreed Mark McPherson, who’d killed his girlfriend in Floyd County, deserved a new sentencing trial. The court said McPherson may not have been sentenced to death had the jury heard evidence of his abuse and neglect when he was a child, his drug and alcohol addictions, and his mental health problems. He awaits resentencing.

But since then, the state Supreme Court has reversed decisions by eight judges who ordered new trials or sentencing hearings.

In 1984, the U.S. Supreme Court laid out the formula for lower courts to follow when deciding whether an inmate’s trial lawyer’s performance was so poor and so prejudicial a new trial is warranted.