Georgia

Georgia

Mid-Year Review: Executions, New Death Sentences Remain Near Historic Lows in First Half of 2017

As we reach the mid-point of the year, executions and new death sentences are on pace to remain near historic lows in 2017, continuing the long-term historic decline in capital punishment across the United States. As of June 30, six states have carried out 13 executions, with 30 other executions that had been scheduled for that period halted by judicial stays or injunctions, gubernatorial reprieves or commutation, or rescheduled. By contrast, at the midpoint of 2016, five states had carried out 14 executions, and 25 other executions had been halted. 12 executions are currently scheduled for the rest of 2017, with 8 others already halted, and several more death warrants are expected to be issued. Depending on whether Ohio carries out the five executions pending between now and December, DPIC anticipates a slight increase in executions in the U.S. from 2016's 26-year low. However, even with the spate of four executions carried out in Arkansas from April 20-27—that state's first executions since 2005—there will likely be fewer executions in 2017 than in any other year since 1990. New death sentences also remain near historically low levels. DPIC has confirmed at least 16 new death sentences so far in 2017, a pace very close to the record-low 31 new death sentences imposed in 2016. Florida's abandonment of non-unanimous jury recommendations of death and Alabama's repeal of judicial override of jury recommendations for life are expected to substantially reduce the number of new death sentences in those states. The death sentences of nearly 100 Florida death-row prisoners have been overturned as a result of the state supreme court's declaration than non-unanimous death sentences are unconstitutional, and courts in Delaware and Connecticut have continued emptying those state's death rows after their death penalty statutes were declared unconstitutional. Three people have been exonerated from death row in 2017—Isaiah McCoy in Delaware, Rodricus Crawford in Louisiana, and Ralph Daniel Wright, Jr. in Florida—bringing the number of death-row exonerations in the U.S. since 1973 to 159. There have also been three grants of clemency in the first half of 2017, bringing the national total since 1976 to 283. President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz and military death-row prisoner Dwight Loving, and Virginia Governor Terry McAuliffe granted clemency to Ivan Teleguz. All three are now serving sentences of life without parole. The U.S. Supreme Court has issued three significant decisions in 2017 in favor of death-row prisoners. On February 22, in Buck v. Davis, the Court granted relief to Duane Buck due to racially biased testimony on the issue of future dangerousness. A month later, in Moore v. Texas, the Court unanimously struck down Texas' outlier practice for determining intellectual disability in capital cases. In McWilliams v. Dunn, the Court found on June 19 that James McWilliams' constitutional rights were violated when Alabama failed to provide him assistance of an independent mental-health expert. The Court ruled against Texas death-row prisoner Erick Davila on June 26.

STUDY: Juries Have Never Found Anyone Intellectually Disabled Under Georgia's Insurmountable Standard of Proof

No death penalty jury has ever found a defendant charged with intentional murder to be ineligible for the death penalty under Georgia's intellectual disability law, according to a new empirical study published in Georgia State University Law Review. The study, by Georgia State Law Professor Lauren Sudeall Lucas, examined 30 years of jury verdicts under the state's Guilty But Mentally Retarded statute, which has the most onerous standard in the nation for proving intellectual disability. “Georgia is an outlier," Lucas says. It is the only state to require a capital defendant to prove his or her intellectual disability beyond a reasonable doubt, and the only state to require that this determination be made at the same time that the jury is considering the defendant's guilt. “This study provides, for the first time, an accounting of how Georgia defendants have been unable to overcome the very high burden of establishing intellectual disability before a jury at the guilt phase of a capital trial—a finding that," Lucas says, "has never occurred in a case of intentional murder.” In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that defendants with intellectual disability—then known as mental retardation—cannot be executed. The ruling, however, left states with discretion in establishing procedures for determining which defendants have intellectual disability. Some states responded by adopting practices that made it more difficult to prove intellectual disability. In two recent cases, Hall v. Florida (2014) and Moore v. Texas (2017), the Supreme Court struck down other outlier intellectual disability standards that deviated from accepted clinical definitions of intellectual disability. It has never ruled on Georgia's standard of proof. To illustrate the effect of Georgia's outlier practice, Lucas explores the case of Warren Hill (pictured), whom Georgia executed in 2015 even though every mental health expert who had evaluated Hill agreed he had intellectual disability. A state court judge found that Hill had proven his intellectual disability by a "preponderance of the evidence" (more likely than not), the standard employed in nearly every death penalty state. However, the state courts ruled that Hill had not proven his intellectual disability "beyond a reasonable doubt." The U.S. Court of Appeals for the Eleventh Circuit upheld the use of that standard, the U.S. Supreme Court declined to review the cae, and Hill was executed. Lucas concludes, "The absence of a single jury finding of intellectual disability in an intentional murder death penalty case in the nearly three decades of the statutory exemption, and the absence of a single jury finding of intellectual disability in any murder case post-Atkins, leaves little question that Georgia’s statute has failed to protect those with intellectual disability from execution as promised, and as required by the U.S. Constitution and Georgia constitution."

After Remand from U.S. Supreme Court, Georgia Federal Court Vacates Brain-Damaged Prisoner's Death Sentence

The U.S. District Court for the Northern District of Georgia has overturned the death sentence imposed on Lawrence Jefferson, saying that his trial counsel had been ineffective for failing to investigate and present available mitigating evidence in his case, including evidence related to "a head injury he sustained as a child when an automobile rolled over his head." The court also found that the state courts had denied Jefferson a "full and fair" hearing on the issue, in violation of due process, when, without notice to Jefferson's lawyer, it invited the Assistant Attorney General to submit an order dismissing Jefferson's petition for relief, then signed the order submitted verbatim, complete with factual misstatements and erroneous legal citations. The potential brain damage to Jefferson was so obvious that the U.S. Supreme Court noted in a 2010 opinion sending the case back for further consideration that "[t]he accident left [Jefferson's] skull swollen and misshapen and his forehead visibly scarred." Before trial, a psychologist had recommended that defense counsel obtain a neuropsychological evaluation of Jefferson, but no evaluation was performed. An examination conducted during Jefferson's appeals process found significant evidence of brain damage, including an enlarged head indicative of brain swelling from the accident, asymmetrical reflexes, and discrepancies in verbal and visual-spatial test scores. A neuropsychologist concluded that these findings indicated right hemisphere and frontal lobe damage to the brain. A neurologist testified, "the most common thing with a closed head injury, traumatic injury of this sort, is problems with judgments, executive planning, and impulse control, the ability to foresee the consequences of your action in the future, as opposed to right now." Jefferson's jury never heard this mitigating evidence. According to the court, "The mental health evidence would have provided the jury an explanation for Petitioner’s past behavior and his testimony regarding his past behavior." The practice of courts signing opinions and orders written by prosecutors verbatim is not uncommon. In 2016, the Supreme Court denied a petition filed by counsel for Alabama death-row prisoner Doyle Lee Hamm seeking review of his case, in which the state court adopted word-for-word an 89-page order written by the state attorney general's office and the federal court said it was bound by the state court "findings." That order rejected Hamm's claim that his lawyer was ineffective, ruling that evidence the jury had never heard concerning Hamm's childhood diagnosis of borderline mental retardation, school records reflecting Hamm's intellectual deficits, and evidence of seizures, head injuries, and drug and alcohol abuse was "cumulative." 

Bishops Ask Georgia Prosecutor to Respect Wishes of Murdered Priest, Drop Death Penalty

Prosecutors in Augusta, Georgia are seeking the death penalty against a man accused of murdering the Rev. Rene Robert (pictured), despite their knowledge that the Franciscan priest had requested that the death penalty not be used "under any circumstances" if he were killed. On January 31, Catholic Bishops from Georgia and Florida traveled to Augusta to meet with Hank Sims, the acting district attorney for the Augusta Judicial Circuit, asking him to respect Reverend Robert's wishes and to withdraw capital charges against Steven Murray. They also delivered a petition signed by more than 7,400 people from Rev. Robert's diocese in St. Augustine, Florida, asking that the Reverend's wishes be honored. In his work as a Catholic priest, Rev. Robert had devoted his life to serving people convicted of crimes and those struggling with addiction and mental health problems. He had worked with Murray through his ministry. Twenty years before he was killed, Rev. Robert signed a "Declaration of Life" that stated: "I hereby declare that should I die as a result of a violent crime, I request that the person or persons found guilty of homicide for my killing not be subject to or put in jeopardy of the death penalty under any circumstances, no matter how heinous their crime, or how much I have suffered." His declaration also requested that the Declaration of Life be admitted as evidence at trial if the prosecution sought the death penalty for his murder, and asked that the Governor “take whatever action is necessary” to prevent any person convicted of his murder from being executed. “During my life," he wrote, "I want to feel confident that under no circumstances whatsoever will my death result in the capital punishment of another human being.” At a press conference before the meeting, St. Augustine Diocese's Bishop Felipe Estevez expressed the bishops' opposition to capital punishment. "Imposing a death sentence as a consequence of killing wrongly perpetuates a cycle of violence in our community," he said. "The death penalty only contributes to an ever-growing disrespect for the sacredness of human life. … Societies remain safe when violent criminals are in prison for life without parole." The views of Rev. Robert and the bishops reflect the Catholic Church's longstanding opposition to the death penalty, which Pope Francis reiterated in an address to Congress in 2015.

Georgia Set to Execute Man Despite Serious Juror Misconduct that No Court Has Ever Reviewed

UPDATE: The Georgia Board of Pardons and Paroles denied Sallie's request for clemency. PREVIOUSLY: Georgia plans to execute William Sallie (pictured) on December 6 in a case his attorneys argue is tainted by egregious juror misconduct that no court has considered because Sallie missed a filing deadline during a period in which he was unrepresented and Georgia provided him no right to a lawyer. It is a case that Andrew Cohen, a Fellow at the Brennan Center for Justice and long-time legal analyst, says "should shock the conscience of every person who believes [in] due process of law." Sallie was convicted of killing his father-in-law and wounding his mother-in-law during a 1990 custody fight with his estranged wife. Because the case involved domestic violence, divorce, and a custody battle, potential jurors were questioned about their experiences with those issues in an effort to eliminate possible bias. One juror lied about her background, which included four contentious divorces, child custody and support fights, and family violence. Although the trial judge had presided over three of the juror's four divorce proceedings -- including one said to have involved dramatic scenes in the courtroom -- he failed to remove her from the jury. During questioning, the same juror stated that she would follow Biblical law over Georgia law, which Cohen says also should have disqualified her from serving in the case. However, over the objections of Sallie's attorney, the judge permitted her to serve and the Georgia courts rejected this challenge to the juror on appeal. During the course of the trial, the juror then carried on an extramarital affair with a male juror, and law enforcement personnel were dispatched to her house after the trial to tell the man his wife had been looking for him. The judge subsequently informed Sallie's lawyers of that affair, but in the 15 months before filing a motion for a new trial, they did nothing to investigate the juror and did not raise her marital history or in-trial misconduct as an issue. The juror later said in an affidavit that she had pressured six other jurors into voting for a death sentence for Sallie. No appeals court has heard evidence of the juror misconduct because Sallie missed a filing deadline by eight days during a period when he had no lawyers representing him. Former Georgia Supreme Court Chief Justice Norman S. Fletcher decried Georgia's failure to provide death row inmates with attorneys throughout the appeals process, saying that "[f]undamental fairness, due process and the prohibition against cruel and unusual punishment require the courts to provide an attorney throughout the entire legal process to review a death sentence. Virtually every capital-punishment state has this safeguard. Georgia is an outlier." In his clemency petition, Sallie's attorneys argue, “The determination of a death sentence must occur only with the most pristine and careful proceedings uncorrupted by bias and dishonesty. That simply did not happen here.”

Georgia Prepares to Execute John Conner Despite Evidence of Intellectual Impairment, Traumatic Upbringing

Georgia is continuing with preparations to execute John Conner (pictured) on July 14 after the state's Board of Pardons and Paroles denied his clemency petition and the Georgia Supreme Court denied him a stay of execution. In the clemency proceedings, Conner's attorneys presented evidence that he is intellectually disabled and that he was raised in poverty and extreme violence in a home filled with chronic drug and alcohol abuse and in which sexual and emotional abuse were the norm. Conner's lawyers wrote that, at a young age, he was "indoctrinated into a life that normalized drugs, alcohol, and violence, so much so that he drunkenly beat a friend to death in reaction to a lewd comment." They also said Conner's teachers had identified him as intellectually disabled. Conner's inexperienced trial attorney failed to present any evidence at trial or in the sentencing hearing and his appellate lawyer was not provided any resources to investigate his case. As a result, his lawyers said, neither the jury nor the state appellate courts heard any mitigating evidence of his intellectual impairments and horrifying upbringing, which they say might have changed the jury's sentencing decision. Though a federal court later ruled that his evidence of intellectual impairment did not reach the level of disability that would render him ineligible for execution, his lawyers argued that the court did not consider the mitigating aspects of his intellectual impairments or whether "Mr. Conner's poverty-, violence-, and trauma-filled family background ... should have justified a sentence less than death." On July 12, the Georgia Supreme Court declined to review Conner's claim that his execution more than 34 years after being sentenced to death constitutes cruel and unusual punishment and voted 5-2 to deny him a stay of execution. [UPDATE: Georgia executed Conner shortly after midnight on July 15. It was the sixth execution conducted by the state in 2016, more than in any previous calendar year since executions were allowed to resume in 1976.]

Georgia Approaches Record Number of Executions But Hasn't Imposed Death Sentences in Two Years

The pace of executions in Georgia is outstripping the pace of death sentences. While the number of executions this year (5) is equal to the single-year record set in 1987 and 2015, no one has been sentenced to death in more than two years, and prosecutors are rarely seeking death sentences. The last death sentence in Georgia came down in March 2014. The number of notices of intent to seek the death penalty has fallen by more than 60% in the last decade, from 34 in 2006 to 13 in 2015. This year, the death penalty is being sought in only one case - the murder of a priest who had protested against capital punishment and signed a document stating his opposition to the death penalty, even in the event he was violently killed. Brian Kammer, head of the Georgia Resource Center, which represents death row inmates in their appeals, said improving the quality of representation has been crucial in bringing about change: “Had such legal teams with adequate resources been available to these recently executed prisoners at the time they were tried originally, I am confident they would be alive today.” Both defense attorneys and prosecutors said the option of life without parole has had a significant impact. Chuck Spahos, head of the Prosecuting Attorneys’ Council of Georgia, said, “It has made an enormous difference. When you start talking about the expense, the years of appeals and the length of the process that goes on and on and having to put victims’ families through that with no closure, the availability of life without parole with a guilty plea has become an attractive option.” Atlanta criminal defense attorney Akil Secret raised questions of fairness, asking, "If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?" 

As Legitimate Market for Execution Drugs Dries Up, States' Secret Execution Practices Become Increasingly Questionable

Pfizer's recent announcement that it was tightening controls against what it calls the misuse of its medicines in executions highlights an on-going struggle between states desperate for execution drugs and a medical community that believes its involvement in the lethal injection process violates its medical and corporate missions and the ethical standards of the pharmaceutical and health professions. As Pfizer and nearly two dozen other pharmaceutical companies have ended open market access to drugs potentially used in executions, states have responded by increasingly shrouding the execution process in secrecy. The states "are mainly concerned about losing their providers of lethal-injection drugs should the companies’ names become public," says Linc Caplan in a recent article in The New Yorker. Otherwise, "companies that do not want their products associated with executions will know that their drugs are being used." He reports that since the Supreme Court upheld Kentucky's execution protocol in 2008, 20 states have responded to drug shortages by abandoning protocols that had been substantially similar to Kentucky’s, making "unfettered substitutions" to their protocols in "desperate attempts to adhere to their execution schedules.” Caplan reports that States "have also been increasingly misleading in their efforts to obtain drugs for executions." He cites documents showing that one Ohio official urged state drug purchasers to identify themselves as from the Department of Mental Health and warned they should "not mention anything about corrections in the phone call or what we use the drug for." Louisiana similarly obtained execution drugs from a local hospital, which mistakenly assumed they were needed for medical use. Last week, an Oklahoma grand jury report described that state's secrecy practices as producing a "paranoia" that "clouded [prison officials'] judgment and caused administrators to blatantly violate their own policies." An article by Chris McDaniel in BuzzFeed after the release of that report documented that the same secrecy and lack of oversight criticized by the Oklahoma grand jury is common in other states, and has contributed to execution problems in Missouri, Georgia, and Ohio. Arizona and Missouri paid executioners in cash, and Missouri's mismanagement of that fund likely violated federal income tax law. Missouri's secrecy, McDaniels writes, also "allowed it to purchase execution drugs from a pharmacy in Tulsa, Oklahoma, that was not licensed in Missouri and had questionable pharmaceutical practices." Other states, like Texas and Arizona "have used the secrecy to purchase drugs illegally," he reports. 

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