The crude artifacts of murder: a couple of old guns, shell casings, beer cans.
These objects helped convict the last three people scheduled for execution in Georgia: Jeff Cromartie, Jimmy Meders and Donnie Lance. All three denied committing their crimes, and all three asked for DNA testing of that evidence before they were to be strapped to a gurney and given a lethal injection.
Could the DNA left on the items provide scientific proof that police and prosecutors got the right man? Or could it poke holes into what seemed like a solid murder case? And did the state have an obligation to find out?
In all three cases, the state said no. Its attorneys persuaded judges to deny the testing, even though families of the condemned men said they’d pay for it. Those decisions led lawyers for the inmates to ask: What does the state have to lose?
“I’d like to know what the state is so scared of,” said Shawn Nolan, one of Cromartie’s lawyers. “Why are they afraid of the truth? This is sad and so disturbing.”
The state attorney general’s office, which takes the lead in opposing a death row inmate’s final appeals, won’t discuss the litigation strategies of specific cases, spokeswoman Katie Byrd said. She noted her office’s attorneys make decisions in conjunction with local prosecutors.
“History will show that our approach has been consistent,” she said. “We follow and enforce the law.”
Former Gov. Roy Barnes said the DNA testing should have been allowed. His policy, while in office 20 years ago, was to instruct the State Board of Pardons and Paroles to permit DNA testing when it was requested.
“I was not going to take the risk of an innocent man being executed,” Barnes said. “Even one mistake in a death case cannot be tolerated. There have just been too many cases where years later DNA exonerated someone.”
Two of the three men who asked for the DNA testing are already dead: Cromartie was executed in November, and Lance was put to death on Jan. 29. The third, Meders, was granted clemency hours before he was scheduled to die on Jan. 16.
‘No doubt whatsoever’
In 1997, Cromartie was sent to death row for killing a 50-year-old clerk in South Georgia. While Cromartie admitted to taking part in the robbery, he insisted a co-defendant who testified against him pulled the trigger.
In December 2018, Cromartie submitted his request for DNA testing of a .25-caliber handgun, shell casings and some beer cans. His lawyers said the testing could prove once and for all who was telling the truth.
Last April, Thomas County Superior Court Judge Frank Horkan held a hearing to consider the request. But in September he issued an order denying the testing. Any result would not have changed the outcome at trial, and Cromartie had waited too long to make the request, Horkan ruled.
That was the right call, said former Thomasville Police investigator Melven Johnson, who worked the case.
“If you wanted DNA testing, you had 20-something years to ask,” Johnson said, adding he had “no doubt whatsoever” that Cromartie pulled the trigger.
State attorneys argued that Cromartie asked for testing to delay his inevitable execution. But Nolan, Cromartie’s lawyer, noted that seven months passed between the hearing in April and the execution being carried out in November. There was plenty of time to conduct the tests, he said.
Even the victim’s daughter, Elizabeth Legette, had supported Cromartie’s request for testing, and she was mystified no one was moved by her opinion. “I believe this was, in part, because I was not saying what I was expected to say as a victim,” she said.
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In Georgia, a condemned inmate’s family or legal team can’t simply walk into a clerk’s office and check out evidence for DNA testing. They must first get the state’s consent to do so or, absent that, obtain a court order requiring it.
Under state law, an inmate must clear a number of daunting hurdles to persuade a judge to hold a hearing on such a request.
There must be a showing that DNA testing was not yet available before the trial; the identity of the perpetrator was, or should have been, a significant question; and DNA testing would raise “a reasonable probability” that the inmate would have been acquitted if testing had been available at the time of his trial.
Before allowing DNA testing, a judge must make similar findings. The judge also must ensure there was a proper chain of custody of the evidence, determine the evidence is in a condition to permit reliable testing, and conclude the inmate’s request was not made “for the purpose of delay.”
‘Not asking for a lot’
Attorneys for Meders, sentenced to death for the 1987 murder of a convenience store clerk during an armed robbery in Brunswick, believed they'd met those burdens.
Meders, who was with two other men at the time of the murder, said one of the other men, Bill Arnold, shot and killed the clerk. The third man, Greg Creel, also handled the gun, he said. Arnold and Creel became prosecution witnesses and testified Meders shot the clerk. And they claimed they never handled the gun.
Nine days before Meders’ scheduled execution, a Glynn County judge convened a hearing to decide whether to allow DNA testing of the murder weapon, a Dan Wesson .357 Magnum revolver.
Testifying for Meders’ legal team, DNA expert Mark Perlin said he’d actually handled the gun in its sealed evidence bag earlier that day and found nothing in the way it had been stored that would have made it unsuitable for testing.
Perlin expressed confidence that whoever had held the gun left DNA that could be extracted, particularly because the gun’s grip had a rough surface. When asked how long it would take to complete the testing, Perlin said two to three weeks.
At the close of the hearing, Mike Admirand, one of Meders’ lawyers, told Judge Stephen Scarlett that “this whole case has been a he-said, they-said dispute about who touched the gun, and it’s close.”
Testing the weapon would resolve that within weeks, Admirand said, noting that the gun was sitting in the clerk’s office one floor below the courtroom. “We’re not asking for a lot here,” he said.
Scarlett was unmoved. He ruled Meders failed to raise a reasonable probability that he would have been acquitted had the testing been available at the time he was convicted. "There has been no showing of a good reason for the delay," he added.
‘It’s just mind-boggling’
The day after the parole board granted clemency to Meders, a judge signed an execution warrant for Lance. Lance was sentenced in 1999 for savagely beating his ex-wife to death with a shotgun and killing her boyfriend with two blasts from the same weapon.
Witnesses said Lance had physically abused his ex-wife and had once threatened her life. While Jackson County prosecutors have said the evidence against Lance was overwhelming, Lance’s lawyers noted it was almost entirely circumstantial.
Lance’s two children, Stephanie Cape and Jessie Lance, stayed in touch with their dad and visited him in prison since their mom’s murder. In one conversation, Lance told his daughter he did not commit the killings.
For that reason, Cape and her brother supported their father's request for DNA testing of wood fragments from the butt of the shotgun, as well as testing of a spent shotgun shell found at the scene. But, once again, state attorneys persuaded a trial judge and the appellate courts to prevent that from happening.
“It’s just mind-boggling that we have this evidence, but the state of Georgia is not willing to truly try to find out if this man is innocent before they kill him,” Jessie Lance said in an interview just a few hours before his father was put to death.
Added his sister, “You don’t know 100 percent who really did it. All of us families deserve to know who committed this crime.”
