NS - Part 3 of 4-day Atlanta Journal-Constitution death penalty series
Steve Hall
Divided about death
Is the public less eager to have killers die?
Pivotal moments in capital punishment
And a column:
Life without parole? Option only a cop-out
The four-day series ends tomorrow with "Bungled Reviews."
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Tuesday, September 25, 2007
DAY THREE
Divided about death
Prosecutors in Georgia are at odds over armed-robbery murders; some seek
death, others almost always seek life. Juries tend to favor life sentences.
• Death penalty for certain crimes could be on way out
By HEATHER VOGELL and BILL RANKIN
The Atlanta Journal-Constitution
Mark McClain burst into a Domino's Pizza in Augusta late one night, snatched
$130 from the register and shot the manager dead. In 1995, a jury condemned
McClain to die.
The sentence proved remarkable. McClain was one of 55 people convicted that
year of a murder involving an armed robbery. Prosecutors sought death for 16,
but only McClain was sentenced to die.
Georgia continues to pursue the death penalty unevenly since passing reforms
three decades ago to make it more uniform, analysis by The Atlanta
Journal-Constitution shows. A primary reason is the scattershot handling of a
single common crime: armed-robbery murder.
Some of the state's 49 district attorneys rarely — or never — seek death for
such murders. Others often do.
As a result, the location of the crime often drastically alters a killer's
chance of facing death, the newspaper found. A racial dynamic exists, too:
From 1995 through 2004, prosecutors were about six times more likely to seek
death when an armed robber killed a white person.
Prosecutors handled other death-eligible crimes much more consistently.
The findings are significant because armed-robbery murder is one of the most
prevalent capital crimes in Georgia. Killings like the one by McClain made up
a third of all death-eligible murders over the decade studied.
Prosecutors who defend the system say the variation simply reflects different
community values. Murder cases are too complex to compare, they say.
But some supporters of capital punishment say that making fewer armed-robbery
murders eligible for death would focus prosecutors' attention on the most
heinous. It could also address criticism that Georgia's penalty is costly and
arbitrary.
"You're accomplishing not only your primary goal of seeking the death penalty
against the worst of the worst, but you're preserving society's resources,"
said former district attorney Alan Cook, director of the Prosecutorial Clinic
at the University of Georgia's law school.
Lawmakers, however, have not revisited the question of which murders should
qualify for execution since 1976, leaving Georgia's death penalty law frozen
in time.
Lessons in geography
McClain was one of eight men sent to death row for armed-robbery murder in the
decade studied.
Another 432 got life in prison. Allen Donterrius Scott was one of them.
Two years after McClain's trial, Scott walked into a Domino's in another
city — Albany — and ordered workers to open the safe.
Edward Monds told him the safe's time-release would not open for 15 minutes.
Scott grew angry and pointed his gun at another worker. Monds, hoping to
distract the gunman, said police were outside. Scott saw they weren't and shot
Monds in the head.
Jurors took two hours to convict Scott but never had a chance to consider the
death penalty. Dougherty District Attorney Kenneth Hodges hadn't sought it.
Over the decade, Dougherty prosecutors pursued death for one of the 15
armed-robbery murders in the circuit. Hodges said he couldn't recall why he
didn't seek death for Scott. He said he reserves the punishment for the worst
cases, and pursues it only after considering the evidence and juries'
decisions on other Dougherty murders.
"I don't weigh it against Danny's case in Augusta," he said, referring to
Danny Craig, the district attorney in the McClain case.
Working with University of Maryland criminologist Ray Paternoster, the
Journal-Constitution analyzed a decade of armed-robbery murders with a single
victim that did not involve torture, maiming, murder-for-hire, or police
killing.
Georgia prosecutors sought the death penalty for about one in six such
armed-robbery murders. But in some circuits, prosecutors behaved as if the
crime were not eligible for death.
Sixteen court circuits could have sought death for it but never did. They
included Fulton County, which had 79 convictions for the crime.
Though armed-robbery murders technically qualify for the penalty, Fulton
District Attorney Paul Howard said the sheer number in Fulton makes it
impractical to prosecute them as capital cases.
"We couldn't do it," he said. Fulton jurors know the crime isn't unusual and
are unlikely to vote for death, he added.
In neighboring DeKalb, prosecutors sought execution for four of 46
armed-robbery murders, but allowed all four to plead guilty.
The two circuits' reluctance to seek death made killers there nearly seven
times less likely to face capital prosecution for the crime than killers
elsewhere in the state, Paternoster's analysis showed.
The practice in Fulton and DeKalb stands in sharp contrast to that in
southeast Georgia.
Prosecutors in southeast circuits pursued execution for armed-robbery murders
that others would have passed on. They sought death, for instance, against
defendants who didn't pull the trigger and in cases with evidence problems
that led prosecutors to eventually accept a plea — and allow a life sentence.
Stephen Kelley, district attorney for the Brunswick circuit, said
armed-robbery murders make a bigger impression in his circuit.
"I would think that you probably find that in a smaller community that an
armed robbery is more offensive than in the big city, where they happen more
often," he said. "We don't like them down here in the Southeast."
Kelley sought death, for instance, in 1996 against three teenagers accused of
killing a convenience-store clerk near Hazelhurst.
The victim, 49, was a retired Navy man known for gentle gestures such as
making Mickey Mouse pancakes for his youngest son. At the time, his widow said
she wanted the three teens to die. But the case proved riddled with problems.
A jury acquitted honor student Heather Nester, who drove the getaway car but
said she did not know what the other two had planned.
Zachary Harper, the triggerman, was allowed to plead guilty for life without
parole because of an evidence snafu in which a blood sample was destroyed,
Kelley said.
Prosecutors continued to pursue death for accomplice John Marion even when it
was no longer an option for the shooter. But Marion eventually entered a plea,
too, for life in prison with possible parole.
Savannah defense attorney Terry Jackson said district attorneys in southeast
Georgia are just playing politics.
"They don't differentiate between what deserves the death penalty and what
gets votes," he said.
Rick Malone, former district attorney of the Middle Georgia circuit, said a
district attorney's opinion on the death penalty is an "awful big deal" during
elections in southeast Georgia. But he said prosecutors are doing what they
think constituents want — and the law allows.
"They elect you and they expect something of you," he said.
'Unconscious racism'
For years, critics have charged that race plays an improper role in decisions
about which murders become capital cases.
The newspaper's study did not find a bias against black offenders, but did
show that prosecutors often obtained tougher sentences for armed-robbery
murders when the victim was white.
After prosecutors sought death, 33 defendants were sent to prison for life
without parole for killing a white victim in an armed robbery; just two
killers of blacks were. Statewide, 226 white victims and 193 black victims
were murdered during single-victim armed robberies.
In the southeast, one reason was an aggressive approach toward robberies of
convenience stores and other businesses. Prosecutors sought death for 15 of 25
such murders; all but one of the clerks killed in that region were white.
In contrast, black armed-robbery victims there more often knew their killer
and died at home or on the street — rather than in a business, a review of
cases shows.
In southwest Georgia, nearly two-thirds of the armed-robbery victims were
black or another minority. But nine of the 10 murders prosecuted as death
penalty cases there involved white victims.
Stephen Bright, a defense attorney with the Southern Center for Human Rights
in Atlanta, said an "unconscious racism" still operates when white prosecutors
make decisions in communities where blacks and whites live separately.
"When someone from the prosecutors' community is killed, someone of his
church, someone he did business with, he realizes that loss," Bright said.
"That's more likely to be a death case than if he gets the police report on an
African-American that he doesn't know as well."
Malone, now executive director of the state's Prosecuting Attorneys' Council,
said race plays a role in everything and elected officials need to be careful.
"Certainly it bothers me that there is a perceived inequity," he said. "But
there's so many factors to this, it's hard to make this question that simple."
In the Domino's killing in Augusta, McClain went to death row for killing a
white man. Scott, in Albany, got life for murdering a black man. Hodges and
Craig, the district attorneys, said race played no role in their decision.
"Quite frankly, to suggest otherwise is offensive," Hodges said.
Paternoster, the criminologist, said the findings do not necessarily document
racism — overt or otherwise — and could reflect historical differences. White
victims' families, for instance, may demand death more often.
Regardless, he said, the racial disparity in sentencing "is still something
that's intolerable."
Reserve for 'extremes'
Armed-robbery murders such as the Domino's killings often fall into a class of
crimes that death-penalty researchers term "mid-range." The cases fall between
the least horrific, for which prosecutors rarely seek death, and the most, for
which they seek death the majority of the time.
The outcomes in mid-range cases figured prominently in McCleskey v. Kemp, a
Georgia murder case that became the basis of a landmark 1987 U.S. Supreme
Court ruling.
McCleskey murdered a white police officer. In a study for his defense, law
professor David Baldus and statistician George Woodworth found that killers of
whites were significantly more likely to get the death penalty. The effect was
most pronounced in the mid-range cases.
The reason, Baldus suspected, was that the middle cases were closer calls, so
inappropriate factors such as race were more likely to hold sway.
The court ruled a broader pattern of discrimination did not prove bias in
McCleskey's case. But Justice John Paul Stevens, in his dissent, noted that
Georgia could all but eradicate racial bias in death sentences by limiting the
penalty to certain categories of "extremely serious" crimes.
Robert Blecker, a New York Law School professor who supports the death
penalty, has advocated dropping armed-robbery murder from death penalty laws
for nearly 20 years. Making all armed-robbery murders eligible for death
misses key distinctions among them, he said.
A robber who shoots a clerk who pulls a gun, for instance, is not as deserving
of death as one who shoots an unarmed clerk to kill a witness.
In recent years, Illinois, New Jersey and Nebraska have all discussed
substantially narrowing death-penalty laws. None has done so.
Henry County District Attorney Tommy Floyd said having all armed-robbery
murders eligible for a death sentence gives prosecutors more leeway to target
horrific cases.
Variation is unavoidable, Floyd said. "You cannot have a perfect system, as
much as we might want to," he said.
Kelley, the Brunswick prosecutor, said Georgia should allow prosecutors to
seek life without parole without formally seeking the death penalty. That is
often the most appropriate sentence, he said, but it's only an option if a
prosecutor seeks the death penalty or the defendant was previously convicted
of a serious violent felony.
Since late 1998, Georgia juries have agreed to death just once for
armed-robbery murder, though prosecutors sought it in sentencing trials at
least nine times.
By comparison, jurors in the same period agreed to death for about half of the
killings that involved torture or maiming of victims.
Blecker said juries are sending a message. "This should be reserved only for
people like serial rapist murderers whose cruelty is the essence of evil," he
said. "It should be reserved for the extremes."
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http://www.ajc.com/metro/content/metro/stories/deathpenalty/daythree/DPLOWSENT
ENCE_0925.html
Tuesday, September 25, 2007
DAY THREE
Is the public less eager to have killers die?
Juries increasingly prefer option of life without parole
By HEATHER VOGELL
The Atlanta Journal-Constitution
Robyn Lang felt that if you kill, you should be killed.
Then she sat on Robert Spickler Jr.'s jury.
Spickler had met his victim, Bruce Belville, in Las Vegas. Months later,
Spickler and a friend stopped to see the Cobb County businessman while driving
to Florida. The three drank away the night at a bar before returning to
Belville's home.
When Belville fell asleep, Spickler smashed in his skull with a sledgehammer
and fled with his credit cards.
Spickler deserved the utmost punishment for the brutal act, Cobb District
Attorney Pat Head told jurors. But in the jury room, Lang decided the death
penalty was less clear-cut than she'd thought.
"I still saw this man as a human being," said Lang, a schoolteacher. "The
death penalty to me is for certain killers — for somebody who could murder
again, somebody who is a danger."
She and 11 other jurors decided Spickler qualified for execution under Georgia
law. But they sentenced him in 2001 to life without parole.
Lang's reluctance to impose death — a penalty she had long supported — mirrors
an ambivalence that has taken hold of juries across Georgia and the nation.
Georgia juries have rejected death in two of every three capital cases since
2000, The Atlanta Journal-Constitution's study of murder convictions shows.
Last year, for the first time in 30 years, no Georgia jury issued a death
sentence.
That marked a departure from the mid- to late 1990s, when juries imposed death
about half the time. In 1997 and 1998, juries sent killers to death row 67
percent of the time.
The drop-off is stark when measured in death sentences: Georgia sent five or
more people to death row every year between 1974 and 2000. It's sent fewer
than five each year since then.
Public opinion polls show that support for the death penalty continues to run
high throughout the South.
But experts say a raft of factors have sent death sentences tumbling here and
across the country. Better-trained defense lawyers, the option of life without
parole, a dip in violent crime and, possibly, a shift in Americans' view of
execution are all contributing, they say.
At one time, execution was the only way Georgia juries could guarantee a
killer would never walk free.
But the popularity of life without parole has surged since 1993, when Georgia
lawmakers made that sentence possible for capital cases. Juries chose it in a
third of death penalty trials in the five years before 2000; the rate nearly
doubled in the five years that followed.
Juries' reluctance to impose death has frustrated prosecutors. They tried but
failed this year to persuade lawmakers to allow a death sentence even when a
jury does not unanimously agree.
"To me, it is just a line that must be drawn at some point," said Head, the
Cobb district attorney. "Unless juries are willing to impose the death
penalty, we don't have a line."
Yet the newspaper's analysis shows prosecutors are also a reason for the
sentence drop. Between 2000 and 2004, they took death penalty cases to juries
only half as often as they had before.
Some experts say prosecutors and juries are behaving more cautiously in
reaction to bad publicity for the death penalty in recent years.
Ten of the 38 death penalty states have put executions on hold — seven because
of challenges that lethal injection constitutes cruel and unusual punishment,
according to state officials and the Death Penalty Information Center.
Exonerations of death row criminals because of DNA and other evidence have
also heightened fear that an innocent person could be executed, experts say.
Scott Sundby, a law professor and death penalty expert at Washington and Lee
University, said he believes better training and support for defense lawyers
also explain the drop in death trials. Three U.S. Supreme Court decisions
since 2000 have underscored that the court will overturn a death sentence if
the defendant is not represented properly.
The cost of death penalty prosecutions has climbed as capital defense has
grown more thorough. Sundby said those higher costs, the reduced odds of
victory, and a perception that perhaps the public isn't demanding death as it
once did may all be discouraging prosecutors from taking death cases to trial.
Some observers wonder whether the death penalty will peter out on its own.
Sundby said many people continue to support execution despite the criticism
because they believe no other punishment is right for egregious killers such
as Oklahoma City bomber Timothy McVeigh, who was put to death in 2001.
Yet Mike Bowers, who argued in favor of dozens of executions when he was
Georgia's attorney general, said he believes the death penalty's future is
uncertain.
"I genuinely believe we're seeing the decline and demise of the death penalty
in this country," Bowers said. "I think it's because of the cost, the
interminable delays and society's demand that there be certainty — and that
makes it almost impossible."
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Staff writer Bill Rankin contributed to this article.
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http://www.ajc.com/metro/content/metro/stories/deathpenalty/daythree/dptimelin
e_0925.html
Tuesday, September 25, 2007
DAY THREE
Pivotal moments in capital punishment
A timeline of news events and court rulings affecting Georgians' perception of
the death penalty
1972: Furman v. Georgia
U.S. Supreme Court halts executions nationwide.
Justice Potter Stewart's opinion in Furman v. Georgia, 1972: "These death
sentences are cruel and unusual in the same way that being struck by lightning
is cruel and unusual. For, of all the people convicted of rapes and murders in
1967 and 1968, many just as reprehensible as these, the petitioners are among
a capriciously selected random handful upon whom the sentence of death has in
fact been imposed."
1976: Gregg v. Georgia
Supreme Court reinstates death penalty.
Justice Stewart: "The new Georgia sentencing procedures, by contrast, focus
the jury's attention on the particularized nature of the crime and the
particularized characteristics of the individual defendant. ... No longer can
a jury wantonly and freakishly impose the death sentence; it is always
circumscribed by the legislative guidelines."
1983: First execution under Georgia's new law.
1987: U.S. Supreme Court rules a larger pattern of racial discrimination is
not enough to overturn a death sentence.
1988: Execution of mentally retarded defendants in Georgia banned.
1992: Innocence Project founded to focus on evidence that can prove convicted
killers are innocent.
1993: Georgia adopts life without parole.
2000: Lethal injection replaces electric chair as Georgia method of execution.
2001: Oklahoma City bomber Timothy McVeigh is executed.
2005: U.S. Supreme Court rules defendants 17 and younger cannot be executed.
Two Georgians on Death Row are affected.
2006: American Bar Association calls for a moratorium on the death penalty in
Georgia to examine fairness and accuracy issues.
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http://www.ajc.com/opinion/content/shared-blogs/ajc/thinkingright/entries/2007
/09/24/life_without_parole_option_onl.html
Tuesday, September 25, 2007
Life without parole? Option only a cop-out
By Jim Wooten | The Atlanta Journal-Constitution
Conceded. No quarrel. No dispute. The death penalty is, as Sunday’s front-page
headline blared, “still arbitrary.”
It’s still “arbitrary” in that those who deserve to be put to death aren’t.
Robert Dwight Foster of Covington is Exhibit A. He brutally murdered a
5-year-old girl, Tacara Judon, beating her to death with a steel lug wrench.
Her 10-year-old brother, Ronald Porter, who slept in a separate bedroom, was
severely injured. Both were attacked by Foster as they slept in their beds at
their Clayton County home in February 2004.
After months of physical and mental rehabilitation, Ronald survived. But
because of brain injuries, he requires special education classes.
Foster, who briefly dated their mother, took the tire iron to the sleeping
children because he drove by their home near Jonesboro about 12:45 a.m. and
saw another man’s vehicle in her driveway. At 12:48 a.m., a 911 dispatcher
took a call from the home. “I tried to kill my girlfriend’s kids,” said the
caller.
Foster will not suffer the capital punishment he so richly deserves.
Yes, a system that spares him while executing anybody is a system in need of
repair.
The squishy-soft jury in Foster’s trial did something increasingly common,
especially in urban areas such as Fulton and DeKalb counties, and rationalized
the brutality as warranting no more than life without parole.
No murderer in DeKalb, the state’s third largest county, no matter how
horrendous the crime, was sent to death row between 1995 and 2004. Fulton
County, the state’s largest with a population in 2005 of 915,623, sent but
two.
If you set out looking for discrimination in the application of the death
penalty, as liberals customarily do, you find it right there. In just under a
decade, among a combined population of almost 1.7 million people, two
murderers got the appropriate penalty. Two.
One who didn’t was featured in a front-page story Monday. The torture endured
by 13-year-old Marsinah Johnson at the hands of a gang commanded by Ahmond
Dunnigan was so awful that it’s normally identified with the depravity of the
genocide directed at the Jews by the Nazis or at the Tutsis in Rwanda by the
Hutus. And yet Dunnigan is not under sentence of death. He’s another
life-without-paroler.
An outrage? For certain. How to fix it?
Georgia really should repeal the life-without-parole option. It gives juries
an easy out. It allows them to rationalize their way to an alternative death
penalty without worrying about conscience. It’s their chance to impose capital
punishment slowly and to walk away disassociating themselves from their
verdicts. Foster’s not getting out. Dunnigan’s not. It’s the jury’s
wink-and-nod plausible denial death sentence. They don’t have the stomach for
lethal injection — or at least one person on the jury doesn’t — so they
“compromise” on slow death behind bars. Absurd.
Life without parole is no deterrent to people such as Dunnigan. It’s lifetime
association with dead-end criminals with a daily routine and free meals and
medical care. Over time, of course, as more Dunnigans and Fosters populate the
prisons, the worse lock-ups will become.
The first fix, then, is to eliminate the easy-out plausible denial option for
juries.
The second fix is to make it clear to juries that their job it to find guilt
and make a recommendation to the judge on sentencing. Judges, based on an
awareness of what’s happening in other judicial districts, should have the
sole responsibility for deciding and imposing sentences, as is the case in
Florida, for example.
Another consideration should be to create a state panel of active prosecutors
and retired judges to decide, in consultation with local DAs, which crimes
warrant asking for the death penalty. The Brian Nichols case, for example, has
such significant statewide criminal justice implications that no single
district attorney should be allowed to pursue the lesser penalty of life
without parole. To his credit, Fulton District Attorney Paul Howard has
steadfastly refused to yield to a lesser sentence.
Another fix would be to create a state or regional team of prosecutors
experienced in death penalty cases who would take over prosecution of capital
offenses throughout the state.
We can either accept that juries reflect the will of the people and,
therefore, disparities that superficially appear “arbitrary” will result. Or
we can change the system.
You decide.
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Steve Hall
512.879.1675 (o)
512.627.3011 (c)
sh...@standdown.org
www.StandDown.org