Norman Fletcher, who retired in 2005 after years as chief justice, now speaks out on the problems with the death penalty in Georgia. “I believe the problem was we were unable to gather all the necessary data and didn’t have the resources necessary to formulate a proper analysis,” he said.
Photo: Joey Ivansco
Photo: Joey Ivansco

From 2007: A matter of life and death: High court botched death reviews

In justifying death sentences, Georgia's Supreme Court has repeatedly cited overturned cases

The AJC originally published this article on Sept. 26, 2007. It was the fourth of four parts.

 Georgia's highest court has mishandled a critical step in overseeing the death penalty, undermining a promise of evenhanded justice made 30 years ago, The Atlanta Journal-Constitution has found.

 By law, the state Supreme Court must make sure every death sentence is in line with punishment in similar cases and throw out sentences that are disproportionately severe. Typically, the court's proportionality review cites a dozen or more comparable sentences for similar crimes.

 The newspaper's analysis shows the court's reviews have been perfunctory and often inaccurate. Since 1982, 19 percent of cases cited by the court to justify death sentences had already been thrown out on appeal. Another 17 percent were reversed after the reviews cited them.

 Murder charges were dropped altogether in a few of the reversed cases. In another case, Robert Lewis Wallace won a new trial and was acquitted by a second jury that heard testimony the gun fired accidentally. The state Supreme Court cited Wallace's death sentence five times after he was freed.

 "That's unbelievable,” Wallace's lawyer, Samuel "Chip" Atkins of Augusta, said of the Supreme Court's citations. "It just sounds like incompetence to me."

 Even lawyers who specialize in capital cases — and finding new issues to litigate — have overlooked the mistakes in the court's proportionality reviews.

 "Death penalty lawyers get so caught up in the most recent constitutional challenge — the hot issue of the day — sometimes they miss what's staring them right in the face,” Atlanta defense lawyer Jack Martin said. "And we all just assumed that the Supreme Court was doing the right thing, wasn't being so sloppy."

 Leah Ward Sears, chief justice of the Georgia Supreme Court, expressed concern over the newspaper's findings.

 "No member of this court would defend a flawed proportionality review,” Sears said in a statement. "As such, we have and are taking steps to improve the process on our end."

 Sears declined to specify those improvements but said the court would take "a very long, hard look" at its use of overturned cases.

 The court's ultimate inquiry in a death case is whether the facts of a particular crime are heinous enough to warrant execution, the chief justice said.

 The court's faulty reviews cited 23 death sentences that the justices had set aside themselves or had upheld a lower court's decision to do so. In all, the reviews cited 76 overturned sentences.

 The flawed reviews include some for inmates whose executions could be scheduled soon, including Jack Alderman of Chatham County, convicted of killing his wife with another man's help for the insurance proceeds.

 In 1985, the state Supreme Court cited 20 similar cases to justify Alderman's death sentence. But the Journal-Constitution found 10 of them had already been overturned. Seven other cited sentences have been overturned since then.

Reviews flawed

 When Georgia asked the U.S. Supreme Court to uphold its new death penalty law in 1976, the state's attorneys pledged the statute's proportionality review would weed out arbitrary and capricious sentences.

 "The search for disproportionality in the sentence is meant to ensure fairness when the case is compared to other, similar cases,” then-Attorney General Arthur Bolton wrote in the state's legal brief.

 From 1974 through 1981, the Georgia Supreme court threw out death sentences for the nonfatal crimes of armed robbery, rape and kidnapping with bodily injury. The court ruled execution would be disproportionate to less severe sentences imposed for those crimes.

 The Journal-Constitution examined 159 death penalty rulings by the state Supreme Court since 1982. Eighty percent cited at least one overturned case; in more than a third of the decisions, at least 25 percent of the cited sentences had been overturned.

 Another 16 rulings contained citations that were reversed afterward. Only 14 rulings cited no reversed cases, the newspaper found.

 The justices defended the practice in 2000, ruling overturned cases could be cited if the grounds for reversal did not involve a jury's consideration of the evidence.

 But the Journal-Constitution found that four dozen cases cited by the court had been reversed because of major problems that could have influenced the jury's decision: evidentiary issues, prosecutorial misconduct, confusing or inadequate jury instructions by the judge, or bungling by defense attorneys.

 "The court thought it was doing a decent job at it,” said former Chief Justice Harold Clarke, who served on the state Supreme Court from 1979 to 1994. "But after reflecting on it, maybe we were not doing all the things that could have been done."

 Norman Fletcher, who retired in 2005 after four years as chief justice, said the justices relied too much on clerks and were unaware the cases had been overturned.

 "We did not do a good job on proportionality,” he said. "I believe the problem was we were unable to gather all the necessary data and didn't have the resources necessary to formulate a proper analysis."

 The problem peaked in 1991, the Journal-Constitution found. That year, the court upheld nine death sentences; more than a third of the "similar" sentences cited in those rulings had been overturned.

 Few cases illustrate the sloppiness of the reviews better than Dennis Charles Hall's.

 The court cited 20 death sentences to justify death for Hall. But it did not note that 16 of them had been thrown out. Of those, 15 defendants were later given life sentences, including three who were later released on parole.

 Some sentences had been overturned because defense lawyers had not investigated the case or presented mitigating evidence, judges gave inadequate jury instructions or prosecutors made improper comments to the jury. One death sentence was thrown out because the jury never knew that the victim, the defendant's husband, was an abusive drunk who had previously beaten his wife and knocked out her teeth.

 In 1990, Hall killed his 10-year-old son during a struggle with his wife over a shotgun in Barrow County. An abusive parent whose blood-alcohol content was five times the legal threshold, Hall grew angry when Adrian would not stop playing with a remote-controlled toy tractor while Hall was watching TV.

 Justice Robert Benham dissented when the court affirmed Hall's death sentence. The 20 "similar" cases, he argued, were far more aggravated than Hall's in that they involved mutilation, sexual abuse or prolonged torture.

 Hall's case, while abhorrent, was "only an angry domestic confrontation ending in a fatal shooting,” Benham wrote.

 Hall's conviction was overturned seven years later when a judge ruled his attorney did a poor job. The jurors had never learned that the gun was defective and could have discharged accidentally. They had been told Hall had locked his family outside in 10-degree weather weeks before the killing. If Hall's lawyer had checked, he would have found it was 52 degrees that day.

 Hall was re-sentenced to life in prison. But his prior death sentence, riddled with errors, would show up again.

 In 2001, the Georgia Supreme Court cited Hall's initial death sentence to justify the one imposed against Cobb County child killer Virgil Presnell.

 "It shows the lack of any meaningful review,” said Tom Dunn, executive director of the Georgia Appellate Practice and Educational Resource Center, which handles death-row appeals.

 "They're using cases that were reversed for substantive reasons to indicate another death sentence is proportional,” Dunn said. "How can you use an inappropriate death sentence to do that? It doesn't make any sense."

Citing overturned cases

 In 1984, a judge threw out a DeKalb County death sentence because a crucial witness perjured himself. Defendant Howard Jones was set free because prosecutors lost key evidence and could not retry the case.

 Yet the Supreme Court has cited Jones' sentence 20 times since then to justify other death sentences.

 Court officials could not explain how Jones' reversal was overlooked. Nor would they disclose how the court tracks appeals.

 Traditionally, a clerk appointed by the chief justice has done its proportionality research. The clerk, who has other duties regarding capital cases before the court, must be an attorney.

 Death sentences can be overturned by: the trial judge, the Georgia Supreme Court, a state court judge during a habeas corpus appeal, the federal courts or the U.S. Supreme Court.

 Curtis French, a former death penalty clerk for the state Supreme Court in the 1980s and early 1990s, expressed surprise that the court's decisions cited so many overturned cases.

 French said he would not have included a case in the review if he had known it had been overturned. "But there's no automatic notification by one court to the Georgia Supreme Court that relief was granted,” he said.

 The state Attorney General's Office knows when a death sentence is overturned or a new trial granted because it litigates death penalty appeals. The office notifies the state prison system and the local prosecutor — but not the state Supreme Court.

 Tracking appeals is often called "shepardizing,” derived from Shepard's Citations, a legal resource that has kept up with court cases since 1873.

 The Journal-Constitution's analysis used Shepard's to determine the outcomes of some death sentence appeals. The newspaper supplemented that information with rulings retrieved from county courthouses and the LexisNexis legal database, and with case histories initially compiled decades ago by a volunteer for the American Civil Liberties Union.

 In 1984, the U.S. Supreme Court ruled that a proportionality review is unnecessary if a state's law does not require it. A number of states later repealed their proportionality reviews, but Georgia did not.

 Other states have struggled with proportionality reviews.

 The North Carolina Supreme Court overturned a case on proportionality grounds in 2002, throwing out a death sentence for a woman who plotted her husband's murder.

 Florida law does not require a review but its Supreme Court conducts one anyway. In May, the court found a death sentence disproportionate for a condemned killer with a long history of mental illness.

 In July, the Florida court vacated a death sentence for a 2001 killing during a robbery. Finding no evidence of premeditation or intention to eliminate a witness, the court said the sentence was disproportionate to similar cases.

Entitled to 'meaningful review'

 Defense lawyers, who aggressively litigate many issues in capital appeals, have rarely challenged the Georgia Supreme Court's review for citing overturned cases.

 Seven years ago, lawyers for Troy Anthony Davis, a Savannah man sentenced to death for killing a police officer, challenged his proportionality review. The appeal noted that four of the six sentences cited in Davis' review in 1993 were overturned either before or after the Davis decision.

 Justice Carol Hunstein wrote the ruling that rejected Davis' challenge. The proportionality review is concerned with the way juries reacted to the evidence in similar cases, she wrote, and it is "irrelevant" if those decisions were reversed for reasons unrelated to the juries' deliberations.

 Hunstein declined comment for this article.

 But the Journal-Constitution found the court's proportionality reviews have cited dozens of "similar" sentences that were overturned for reasons concerning evidence and jurors' assessment of the evidence. They include cases in which:

  • The prosecution failed to prove an aggravating circumstance, a required element of a death sentence.
  • A defendant's lawyers didn't show the jury their client had saved two people's lives in the years before the murder.
  • A defendant's lead lawyer slept through parts of the trial. The defense team did not even know the key witness could not identify the defendant.

 Other sentences cited by the court to justify death penalties had been overturned because the racial composition of the jury pool did not reflect the community. One case was thrown out because the district attorney asked that blacks and women be underrepresented in the jury pool.

 Sears, the chief justice, acknowledged that cases cited in the court's proportionality reviews may have been reversed.

 "When this court cites older cases, it is primarily interested in what evidence the juries in those older cases actually heard at the time that led them to impose the death sentence, not what evidence those juries should have heard,” she said in a prepared statement.

 Tim Floyd, a Mercer University law professor, said the court should conduct new reviews for condemned prisoners whose proportionality reviews cited a substantial number of overturned cases.

 "They are entitled to a meaningful review — but not the way the court has been doing it,” Floyd said. "A meaningful proportionality review is essential under the Georgia statute."

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