The gurney used for lethal injections, housed at the Georgia Diagnostic and Classification Prison in Jackson, is intended for the state's worst killers.
Photo: Ben Gray
Photo: Ben Gray

From 2007: A matter of life and death: Death still arbitrary

The AJC originally published this article on Sept. 23, 2007. It was the first of four parts.

 Two men begged a ride from a Wal-Mart shopper in Milledgeville. Minutes later he was dead, shot once in the head. The killers sit on death row.

 Two men begged a ride from a college student at a Tifton nightclub. Minutes later he was dead, shot four times in the stomach and chest. The killers are serving life in prison and will be eligible for parole.

 Two exceedingly similar crimes, just a few months and 135 miles apart. Two starkly different outcomes.

 The murders illustrate what a two-year investigation by The Atlanta Journal-Constitution has revealed: Getting the death penalty in Georgia is as predictable as a lightning strike. Thirty-five years ago, the U.S. Supreme Court threw out the death penalty nationwide after finding it was arbitrary and capricious in Georgia.

 It still is. Reforms that persuaded the high court to reinstate the death penalty have fallen far short of the state's promises, the Journal-Constitution has found.

  •  Horrible murders are sometimes treated more leniently than lesser crimes. Reginald Acres, for instance, avoided death for viciously stabbing and killing his wife, infant daughter and a pregnant relative. But David Aaron Perkins is on death row for stabbing a drinking buddy and crushing his skull with a whiskey bottle.
  • For 25 years, Georgia's Supreme Court has flubbed a critical duty, repeatedly citing cases that had been overturned to justify other death sentences. (Day Four of this series will explore this issue in depth.)
  • More prosecutors and juries are rejecting lethal injection in favor of life without parole. Since 2000, juries have decided against death in two of every three sentencing trials. The trend makes each remaining death sentence more out of step with punishment for similar crimes.

 The newspaper's investigation explored the darkest depths of human behavior. Court records told tales of torture, mutilation, child murder — the kinds of cases that give cops and jurors nightmares. They were also, the newspaper found, the kinds that often didn't get the death penalty.

 "It's like a roulette wheel,” said former Georgia Chief Justice Norman Fletcher.”Arbitrariness is a weakness of the death penalty."

 The Journal-Constitution found 1,315 murder cases from 1995 through 2004 that could have been prosecuted for death.

 But prosecutors pursued a death sentence for only one in four of those killers. Only one in 23 of them landed on death row.

 In that decade, DAs did not seek death for 375 murder cases involving rape, torture or maiming, or multiple killings — circumstances that could warrant a death sentence, the Journal-Constitution found.

 Juries sent other killers to death row for crimes that involved a single gunshot and a single victim.

 "It would make as much sense just to execute every 10th or every 100th murderer [as] it would be to figure out the rhyme or reason for why we're picking the ones to get the death penalty,” said Atlanta defense attorney Jack Martin.

 The newspaper, working with University of Maryland criminologist Ray Paternoster, analyzed 10 years of murder convictions. Among the findings:

 Geography matters. Killers' sentences often depended on where they killed. A murder in Clayton County, for example, was 13 times more likely to bring death penalty prosecution than a similar crime a few miles away in Fulton.

 Race matters, too. Statewide, prosecutors were more than twice as likely to seek death when the victim was white.

 The nature of the crime matters. Statewide, the geographic and racial disparities were more pronounced in prosecutors' handling of murders that involved armed robbery.

 Disparity despite guidelines

 Georgia lawmakers in 1973 did not intend to allow such disparate outcomes.

 "We were trying to bring [the death penalty] down to the worst of the worst,” said Peyton S. Hawes Jr., then vice chairman of the House Judiciary Committee.

 Responding to the U.S. Supreme Court, the Legislature set guidelines to help prosecutors decide when to pursue execution. The statute specified 10 "aggravating circumstances" — such as killing a police officer, or killing two or more people — that could qualify for a death sentence. Other states passed new laws following that model.

 But Georgia's new law still covered much more than the worst of the worst. The newspaper found 56 percent of all murders in the decade studied were still eligible for death, including hundreds of moderately aggravated cases. By allowing district attorneys to choose from such a large pool, the Legislature preserved the arbitrariness it had sought to eliminate.

 Georgia's 49 DAs use their own standards and values to decide whether to pursue death. They assess the strength of the case, the character of the victim, the wishes of the victim's family and, sometimes, their gut.

 "You know it when you see it,” Douglas County District Attorney David McDade said.

 Deals help some dodge death

 The temptation to accept a plea bargain, particularly for a sentence of life without parole, can prove irresistible. The Journal-Constitution found prosecutors did so in dozens of murders that were among the worst in the state. Sometimes, DAs did not seek death at all.

 Of the 132 murderers who made up the worst 10 percent of cases, only 29 landed on death row, the newspaper found. Paternoster, the Maryland criminologist, identified the most severe cases statistically by considering factors such as multiple victims, a rape or torture.

 Prosecutors sought death in 103 of those cases, but later allowed nearly half of the killers to plead guilty. Some got life sentences and will be eligible for parole.

 In one of the most chilling cases, two men killed five people in cold blood.

 In 1995, Alvin Smith and Ricky McCoy walked into a McFrugal Auto Rental office in East Point. A drug dealer had offered them cocaine to kill an employee.

 Their target was not at work, so Smith and McCoy decided to rob the store. Only Todd Foust, a fastidious 23-year-old manager and youth baseball coach from Douglasville, stood in their way.

 Foust begged for his life. Take anything you want, even the keys to my van, he said. Smith bound Foust's hands and feet with duct tape, then stood over him and fired a fatal bullet into his head.

 Smith and McCoy drove a stolen rental car to rob another McFrugal store, where Smith executed a manager and customer.

 The two men confessed a few days later. McCoy also admitted helping to rob and kill two drug dealers; Smith said he took part in one of those murders.

 Fulton County prosecutors filed court papers seeking death. But a year later, both killers struck deals that let them avoid it. McCoy's deal allowed the possibility of parole.

 Prosecutor Henry Newkirk, now a judge, agreed the killers deserved to die. But he said then-District Attorney Lewis Slaton wanted the certainty of a deal.

 "A bird in the hand is worth two in the bush,” Newkirk recalled Slaton saying of the deal. Slaton, who fretted over the expense of capital trials, died in 2002.

 Foust's father remains livid to this day.

 Gordy Foust and his son had reconciled several months before the killing. They had seen each other rarely until Todd paid a surprise visit and apologized for losing touch. Soon, Todd joined his dad on the drag-racing circuit.

 Foust said recently he can't imagine the terror his son experienced in his final moments.

 "I'm not so sure those walls outside the prison are there to keep people like them in or to keep people like me out,” said Foust, 66.”If you don't give these people the punishment they deserve, there is no punishment anymore."

 In the five-county Brunswick circuit on the Georgia coast, prosecutors probably would have rejected a similar plea deal.

 Three months before the McFrugal slayings, Warren King killed an Appling County convenience store clerk in a bungled robbery. King and his cousin held up Karen Crosby, 23, as she walked to her car after closing. King's cousin used Crosby's keys to open the store but triggered the alarm. Before fleeing, King shot Crosby twice.

 King got a death sentence in 1998 and awaits execution. Overall, prosecutors in Brunswick were 14 times more likely to seek death than those in Fulton for similar crimes, the Journal-Constitution found.

 Several factors alter outcomes

 District attorneys say many cases are not suitable for the death penalty because of weak evidence.

 Juries will not impose death unless guilt is irrefutable, prosecutors say. Seeking death without the certainty of a conviction, they add, would waste resources on protracted court proceedings and years of appeals.

 "The type of punishment should be the only thing in question,” said Joseph Campbell, district attorney for Bartow and Gordon counties.

 This means killers who are crafty enough to dispose of the murder weapon, careful enough to leave no evidence or lucky enough to escape the notice of witnesses will probably never face a capital prosecution.

 The evidence against Miles Dempsey seemed powerful, but prosecutors said it wasn't enough to seek death.

 One night in March 2001, Jennifer Causey, a 17-year-old desk clerk at an Acworth hotel, told a friend over the phone she was scared of Miles, the maintenance man. He had cursed at her the previous morning. Causey told her friend to call 911 if something happened to her.

 A few minutes later, the friend heard Causey scream "Miles!" and drop the phone, then what sounded like a baseball bat hitting the desk several times. Causey was found dead with a fractured skull. The cash drawer was cleaned out.

 Police found Dempsey in his room and Causey's blood on a pair of his jeans. The murder weapon was never found.

 But Cobb County DA Pat Head chose not to seek the death penalty. The case, he said, was solid enough to win a conviction but too circumstantial to obtain a capital sentence.

 "How many 'Miles' are there in the Acworth area?" Head asked.

 Because Dempsey was the maintenance man, Head added, jurors could have been led to believe the blood got on his pants another way.

 Dempsey was found guilty of murder in 2002. Because he had a prior violent felony conviction, he was sentenced to life without parole.

 Even when guilt seems certain, DAs don't always go for death. The newspaper found they did not seek death for at least 225 eligible killers who confessed.

 Sometimes a DA will not pursue death against a co-defendant who cooperates. A victim's family that opposes capital punishment may persuade a prosecutor from seeking death, as will questions about a defendant's mental health.

 Another reason is mercy, seeing a redemptive quality in the heart of a killer.

 "If you believe the death penalty is reserved for the worst of the worst, true remorse and accepting responsibility can take you out of that category,” Gwinnett District Attorney Danny Porter said.

 Spotlight can shift to victim

 Some DAs also consider the nature of the victim in deciding whether to pursue death. Did he deal drugs? Did he have a prison record?

 In DeKalb County, a late-night intruder stabbed a screaming woman while her terrified children cowered in the next room.

 Willie James Robinson climbed through the window of Stacey Miller's duplex before 5 a.m. one morning in 2000, court records show. Robinson stabbed her in the neck and chest with a butcher knife.

 Miller's screams awoke her 10-year-old son, who feigned sleep in the next room. Her 8-year-old daughter hid in the closet.

 Robinson, believing the children were asleep, took Miller's money and jewelry, disabled the smoke alarm and set the duplex on fire. The children slipped out a window.

 Police found Robinson outside, watching the flames, with Miller's blood on his shoes. He later was convicted of raping another woman in a similar incident five months earlier.

 The murder qualified for the death penalty three ways because it involved an armed robbery, a burglary and arson. But prosecutors allowed a plea deal for life in prison because they believed Miller had a prior romantic relationship with Robinson.

 "It's really tough to get the death penalty unless it's stranger-on-stranger,” said former DA J. Tom Morgan, whose office told the parole board Robinson should never be released.

 Time, costs considered in cases

 Busy caseloads and the mounting costs of capital prosecutions also hinder DAs from seeking death.

 Prosecutors with more murder cases sought death less frequently, the newspaper's analysis showed. Circuits with the fewest murder cases sought death about twice as often as circuits with the highest volumes.

 Muscogee County had two pending death penalty cases when Lucille Henderson Smith was murdered in March 2001.

 Smith was in her apartment, on the phone with a friend, when she screamed "New York!" and cried out for help.

 Police found her dead in the pouring rain, lying face down behind her apartment. She had been stabbed 45 times. The 49-year-old foundry worker had told friends to remember the name "New York" if something happened to her.

 Police quickly identified "New York" as Hayden McCloggan, a former co-worker of Smith's. He had once gone to prison in New York for sexual abuse.

 Voluminous evidence tied McCloggan to the slaying — DNA, blood, stolen items from Smith's purse and his watch at the crime scene. Police even matched a diamond-shaped imprint on Smith's forehead to the sole of McCloggan's boots.

 McCloggan later told police he was infatuated with Smith and watched through the window that night as she undressed. He said he entered her apartment, picked up a knife and wanted to "see what it was like to kill someone."

 John Gray Conger, the Muscogee district attorney who agreed to a plea bargain for life in prison, said it is too costly to seek death in every case.

 "That's the unfortunate truth,” he said.”It costs a lot of money to try a death case. It takes a lot of resources. It takes a lot of people."

 Death penalty prosecutions can be enormously expensive and time-consuming. The law requires two defense attorneys, extensive pretrial hearings and lengthy appeals. An extended jury selection process precedes a trial to decide guilt or innocence and then a hearing to determine punishment.

 The sheer cost of mounting a capital case gives some DAs pause.

 That wasn't a problem in Clayton County in the late 1990s. Assistant district attorney Brandon Hornsby, given the time and resources, obtained four death sentences in four years.

 "We were able to devote one person to these cases,” Hornsby said.”Most counties don't have the ability to do that."

 Bob Keller, the former district attorney in Clayton County and now a member of the state parole board, said he embraced Hornsby's decision to focus primarily on death penalty cases.

 But Keller said the disparities found by the newspaper are unsettling.

 "I'm not so sure we don't need to revisit how we do this,” Keller said.

 "How do you justify in one county a horrific case that gets life and in another county a not-so-horrific case the death penalty is sought?" asked Keller.

 "The answer is you don't."

 Staff writer Cameron McWhirter contributed to this article.

Support real journalism. Support local journalism. Subscribe to The Atlanta Journal-Constitution today. See offers.

Your subscription to the Atlanta Journal-Constitution funds in-depth reporting and investigations that keep you informed. Thank you for supporting real journalism.

Download the new AJC app. More local news, more breaking news and in-depth journalism. Atlanta. News. Now.

Download the new AJC app. More local news, more breaking news and in-depth journalism. Atlanta. News. Now.