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    Georgia Capital Punishment News

    July 14, 2008

    The Atlanta Journal-Constitution

    The Georgia Supreme Court on Monday ruled that a person found guilty of murdering a law enforcement officer is eligible for the death penalty, even if the killer did not know the victim was an officer at the time.

    The 5-2 ruling was issued before the upcoming trials against Antron Dawayne Fair and Damon Antwon Jolly, who are accused of killing Bibb County Sheriff's Deputy Joseph Whitehead in 2006. Prosecutors are seeking the death penalty against both men, who will be tried separately.

    Whitehead, the lead officer in a drug investigation, entered the home using a "no-knock" warrant. Within seconds, Whitehead was shot and killed. Investigators found crack cocaine and marijuana while processing the scene.

    Prosecutors are seeking the death penalty against Fair and Jolly on the grounds they committed the aggravating circumstance of killing a law enforcement officer in the performance of his duty. Defense lawyers contend their clients should not be eligible for the death penalty because they did not know Whitehead was an officer.

    In Monday's ruling, Justice George Carley wrote that the state's death-penalty statute "is silent regarding the defendant's knowledge of the officer's status." If the Legislature, when enacting the law in 1973, had intended to require knowledge, it would have done so, Carley said.

    Justice Carol Hunstein, joined by Chief Justice Leah Ward Sears, dissented on this issue.

    "Clearly, a defendant who knowingly murders a peace officer ... is more culpable than one who does not know the status of his victim," the dissent said. "Without such knowledge, there is nothing to distinguish the defendant who murders a victim who by happenstance was such a public servant from a defendant who murders any other victim, and thus nothing to specifically justify imposition of the ultimate punishment."

    Fair and Jolly also contended that they were justified in opening fire on the officers because they thought they were being robbed, not the subject of a "no-knock" warrant.

    The state's high court said the trial judge erred during pretrial hearings by not ruling on the issue of whether the two men were entitled to immunity from prosecution for that reason. The state Supreme Court directed the judge to decide that issue before the case goes to trial.

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    February 3, 2009

    The state Senate has approved legislation which would allow prosecutors to seek life without parole against convicted killers without first pursuing the death penalty.

    The legislation from Senate Judiciary Committee Chairman Preston Smith passed unanimously Tuesday.

    Under current law, prosecutors may not obtain a sentence of life without parole unless they first seek the death penalty. Smith, a Rome Republican, says such capital trials are time-consuming and costly.

    Life without parole is already an option for prosecutors in rape cases.

    Smith says the bill has the support of prosecutors but that lawyers in the defense community are split on the change.

    The bill now moves to the state House.

    http://www.13wmaz.com/article/20090203/NEWS02/90203018/1013/NEWS04

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    Georgia budget cuts could leave some death row inmates without attorneys

    ATLANTA — Some Georgia death row inmates could lose their attorneys amid budget cuts that could potentially halt their appeals hearings and even delay executions.

    The Atlanta Journal-Constitution reports (http://bit.ly/rvQHVY) that the Georgia Appellate Practice and Educational Resource Center will ask for more money this legislative session to keep it from having to lay off attorneys and investigators.

    The group represents or assists with the representation of about 90 percent of the inmates on Georgia's death row.

    The funding has been tied to interest-bearing trust accounts set up by lawyers to handle real estate transactions and other deals, but the rough housing market has taken a toll.

    That source of income has dropped from $750,000 to about $185,000 within the last three years. Lawmakers have also cut funding by more than $200,000.

    http://www.therepublic.com/view/stor...Death-Penalty/

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    Bill would cloak lethal injection information in secrecy

    The names of those who carry out Georgia’s executions and the identities of those that supply the lethal drugs would be classified as “state secrets” under legislation moving through the General Assembly.

    Rep. Kevin Tanner, R-Dawsonville, who sponsored the privacy exception, said it is needed to protect individuals involved in the execution process. But opponents said it shields from view how Georgia acquires its lethal-injection drugs and could, if there is a botched execution, prevent the public from finding out why it happened.

    Tanner successfully attached the “state secrets” amendment to House Bill 122, which was approved by the Senate Judiciary Non-Civil Committee on Wednesday.

    It would keep private the names of the guards on duty during executions, the pharmacist who fills out the prescription and the person who administers the lethal drug, he said. The amendment also requires the identifying information of any entity that “manufactures, supplies, compounds or prescribes” the lethal injection drugs to be classified.

    Tanner, a former Department of Corrections board member, said he has been working with the agency on the amendment. Nearly half of the states with the death penalty have enacted similar legislation.

    “Corrections has been having an issue with individuals that participate in this process being harassed,” he said. “Because they are carrying this function out on behalf of the state, (the department) felt like that it was important to attempt to offer them some protection personally, that their personal information would not be available.”

    In recent years, anti-death penalty opponents have targeted a doctor who has participated in administering lethal injections of Georgia inmates. The doctor was subjected to protests and faced complaints that sought to revoke his medical license.

    Tanner said he worries that angry family members and others might seek vengeance on those involved in executions if they had access to their identities.

    The provision does not make secret the methods used for execution, he said. “This isn’t pro-death penalty legislation or anti-death penalty legislation. It’s just about protecting these people.”

    Corrections fully supports the provision that protects those who are essential to the lethal-injection process in Georgia, agency spokeswoman Gwendolyn Hogan said.

    “The purpose of the bill is to protect the safety of the officers, nurses, doctors and pharmacists involved in this process,” she said. “Identifying these individuals and businesses jeopardizes their safety and makes them a target for harassment and intimidation, simply because of their involvement in court-ordered executions.”

    William Montross, a lawyer for the Southern Center for Human Rights in Atlanta, said no one wants the names of the actual executioners.

    “That is not what this bill is about,” he said. “It is about giving the Georgia Department of Corrections cover so that no one can see how they obtain the drugs they use to kill people. Transparency is being thrown out the window.”

    Sandra Michaels of the Georgia Association of Criminal Defense Attorneys said there have been problems with the quality and types of drugs used for lethal injections.

    “If there is a problem at an execution, it’s possible this bill will prevent getting to the bottom of what happened,” she said. “Nationally there have been botched lethal injections based on problems with the drugs.”

    Georgia’s lethal injection process has had its share of controversy. In March 2011, Drug Enforcement Administration officials confiscated Correction’s supply of sodium thiopental, a sedative once used in a three-drug lethal-injection cocktail.

    The seizure occurred shortly after lawyers for a condemned Georgia inmate asked the U.S. Justice Department to investigate whether the state failed to properly register with the DEA when it imported its sodium thiopental from England. Court filings showed that Georgia bought the drug from Dream Pharma, a company that operated in the back of a storefront driving school in London.

    Corrections soon switched from sodium thiopental to the barbiturate pentobarbital in its lethal injection cocktail. Last year, the agency changed its procedure from using three drugs to only one, pentobarbital.

    http://www.ajc.com/news/news/local/b...on-in-s/nWzYL/
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    Compounding pharmacies may be source of lethal injection drugs

    By Rhonda Cook
    The Atlanta Journal-Constitution

    Out of lethal injection drugs and with three men who could have execution dates set soon, Georgia must figure out a way to restock its supply of pentobarbital, which the manufacturer refuses to sell for capital punishment.

    “The vast number of states are facing a crucial shortage of lethal injection drugs,” said University of Georgia law professor Ron Carlson. “Sources are drying up and states are scrambling to figure out how to implement their death penalty laws.”

    The shortage of drugs nationwide can be traced to political pressures on the drug manufacturers — all either based in or with facilities in other countries where sentiments are strongly against capital punishment.

    Legal experts and activists expect the alternative to buying from a mass producer will be ordering from local compounding pharmacies where batches of the drug can be made on the spot and as needed.

    “There is a sense that compounding pharmacies may be where states are turning,” said Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which opposes the death penalty. “Big drug companies don’t want to be associated with this.”

    But there could be legal and public relations problems with a local pharmacist making up a batch of lethal injection drug on a case-by-case basis.

    “Its certainly invokes the image of the mad scientist mixing chemicals with the nefarious intention of taking human life, which certainly seems problematic for state government,” said Sara Totonchi, executive director of the Southern Center for Human Rights. “How do we know about the integrity of the compound? How do we know if the person being executed isn’t being put through unthinkable pain?”

    Some of the areas ripe for litigation, Totonchi and other death penalty opponents say, are the skills of the pharmacists, the efficacy of the drugs that will have to be tweaked enough so as not to violate patents and the need for a doctor to write a prescription for a lethal injection drug which could violate American Medical Association rules.

    “It reopens a whole new line of litigation around this issue. The state is going into uncharted waters,” said Georgia attorney Gerald Weber, who brought suits around the issue of doctors participating in lethal injections a few years ago.

    So far, only South Dakota has carried out an execution using drugs made locally.

    There are no executions scheduled in Georgia at this time. But on Tuesday the 11th U.S. Circuit Court of Appeals rejected a challenge from Warren Hill, who came within two hours of being executed in February for a 1990 beating death of a fellow inmate, and his execution warrant could be signed at any time if the U.S. Supreme Court does not step in. The U.S. Supreme Court has the final appeals of Robert Wayne Holsey — who murdered a Baldwin County deputy 1995 — and Marcus Wellons — who raped and strangled his 15-year-old Cobb County neighbor in 1989.

    The state would be pressed if any of the three men at the end of their appeals have executions scheduled in the near future.

    That’s why it’s important for the state to shield the identities of doctors, pharmacists or drug providers that could be involved with procuring lethal injection drugs, said State Rep. Kevin Tanner, R-Dawsonville. He sponsored the legislation to keep those identities secret, expecting the state will have to turn to a pharmacist.

    “I can see it heading in that direction,” Tanner said.

    The nationwide shortage of lethal injection drugs became a problem only in recent years when companies in other countries became concerned their products were being used in executions.

    First the U.S. manufacturer of the sedative sodium thiopental — the first in a series of three drugs — stopped making it. Then the Danish company that made the replacement sedative, pentobarbitol, required U.S. suppliers to agree not to sell the drug if it is to be used in lethal injections. Then an Israeli pharmaceutical company stopped making the paralytic pancuronium bromide, the second drug Georgia and other states used in its three-drug cocktail; that is what led Georgia to go to a one-drug process even as that one drug was no longer available.

    Twenty-four states still have three-drug protocols that start with pentobarbital.

    Georgia and 10 other states have switched to a one-drug process. Missouri plans to use Propofol, the anesthetic said to have killed pop star Michael Jackson that is made by a German company. Arkansas has said it will use phenobarbitol, a sedative and anti-seizure drug that has not yet been used in an execution. The remaining 11 use pentobarbital, which they can’t buy now.

    Georgia’s ability to procure lethal injection drugs may well lie in its ability to shield the public from those involved in the production of the drug.

    “If we cannot protect the identities of these individuals, we may not be able to obtain drugs to carry out executions,” DOC attorney Robert Jones wrote in an email dated March 22, the day the Senate approved the change and four days before the House gave the bill its final approval.

    http://www.myajc.com/news/news/state...tomyajc_launch

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    Ga. AG candidates want to speed executions

    Both Republican candidates for state attorney general say they would like to see execution sentences be carried out quicker.

    Cobb County Commission chair Sam Olens and state Sen. Preston Smith are in a runoff to face Democratic nominee and former prosecutor Ken Hodges in the fall.

    Besides executions, both candidates said at a debate in Dalton on Saturday that they would work to pass a stricter immigration enforcement law similar to that of Arizona.

    Olens took some heat from Smith for not having a National Rifle Association endorsement. Olens said the lack of endorsement is because Smith has a voting record in Georgia Legislature while he none. Olens said he is a lifetime NRA member and strong Second Amendment supporter.

    The runoff election is Aug. 10.

    (Source: The Associated Press)

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    Judiciary could see more funds

    The state’s improving financial outlook could mean a modest funding increase for Georgia’s judiciary after years of bruising budget battles that turned the judicial branch into a favorite target of lawmakers seeking to slash spending.

    The judicial branch’s budget situation was so dire in 2009 that Georgia’s top judges considered whether to take emergency legal action to stop the state from cutting their funding.

    Rising tax revenue and support from Gov. Nathan Deal, an attorney whose son is a north Georgia judge, has helped buoy the judiciary’s hopes for the upcoming year.

    “I’m very much encouraged,” said Cordele Super*ior Court Judge John Pridgen, the head of the Council of Superior Court Judges. “We’re not going to recover all that was lost in the short run, but the mood is much better. And there’s some hope on our part that we can at least regain some of the things we’ve lost in the hard budgetary times.”

    DEAL HAS LITTLE say in the judicial proposals included in his budget, which was released Wednesday. The state’s separation of powers requires the governor to submit the spending plan the judiciary sends him. But one item he made sure to add to the request is one of his pet projects: A $10 million grant to fund a system of accountability courts for alternative treatment of some low-level offenders.

    “While these reforms require an initial investment, they will increase public safety and ultimately save money by creating a more effective corrections system that rehabilitates people, closing the revolving door,” Deal told lawmakers.

    The rest of the request includes funding increases that would allow the hiring of more clerks, additional attorneys and new equipment to help the courts reverse a backlog of court cases.

    It gives prosecutors a nearly $3 million boost that would partly go to hire victim advocates and new assistant district attorneys, and proposes a new infusion of cash for the public defender system to meet rising costs. It would grant $145,000 in extra spending to the Georgia Supreme Court to fund a pay increase for staff attorneys and create a dedicated clerk for death penalty cases.

    The Judicial Quali*fica*tions Commission would get $106,000 to hire another investigator – a move that delights Director Jeff Davis, who has long argued that more staff are needed to meet the growing number of misconduct complaints.

    The Georgia Resource Center, which handles death penalty appeals, would get enough money this year to keep doors open after losing most of its funding amid the economic troubles.

    THE PROPOSAL IS just part of a long process, and lawmakers will now spend the next few months wrangling over the details. But judicial branch officials say they’re confident they are far removed from the more tumultuous times in recent years when stiff cuts threatened to spark a legal battle between the governor’s office and the judicial branch.

    The tension reached a head in 2009 when plummeting tax collections forced Gov. Sonny Perdue to order all state agencies – the judiciary included – to cut their budgets by 25 percent for June. Georgia’s leading attorneys went on the offensive, arguing that Perdue lacked the legal authority to slash the judiciary’s funding. The governor warned them not to pursue “futile and unwise litigation,” and the fight seemed headed for a courtroom until the two branches struck a compromise that allowed both sides to save face.

    A year later, Chief Justice Carol Hunstein warned that the courts were in peril of failing to fulfill their constitutional mandates because of another round of deep cuts that forced offices to fire staff and furlough workers. The Georgia Supreme Court, for instance, banned travel, closed its modest law library, furloughed the justices and fired staff.

    http://chronicle.augusta.com/news/20...see-more-funds

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    Mental retardation burden of proof in death cases unconstitutional

    The burden that Georgia places on death-penalty defendants to prove they are mentally retarded -- and thus ineligible for execution -- is unconstitutional, the federal appeals court in Atlanta ruled Friday.

    The court, in a 2-1 decision, said that requiring defendants to prove they are mentally retarded beyond a reasonable doubt violates the Eighth Amendment's ban against cruel and unusual punishment. It also will "result in the execution of the mentally retarded," which the U.S. Supreme Court prohibited in 2002.

    The decision should result in new hearings for up to 10 inmates on Georgia's death row who previously raised mental retardation claims at trial, said Brian Kammer, director of the Georgia Appellate Practice and Educational Resource Center, which handles death-row appeals. It also will affect all death cases going forward in which defendants claim to be mentally retarded.

    The ruling corrects a "serious defect" in Georgia's death-penalty system, Kammer said. "[It] ensures that Georgia defendants will finally have meaningful protection from wrongful execution if they are mentally retarded."

    The state Attorney General's Office is reviewing the decision, spokesman Russ Willard said. It could ask the entire, 12-member 11th U.S. Circuit Court of Appeals to reconsider the ruling by the three-judge panel or appeal to the U.S. Supreme Court.

    Friday's ruling noted that Georgia is the only state in the country that requires a defendant raising a mental retardation claim to clear the highest burden-of-proof threshold in legal proceedings -- beyond a reasonable doubt. The ruling noted that 22 states require proof of mental retardation by a preponderance of the evidence, the lowest threshold. Four states have adopted a clear and convincing evidence standard and three states have not set a burden of proof.

    Under Georgia law, a defendant who shows he has "significantly sub-average general intellectual functioning" that manifested itself during the early, developmental period of life is deemed to be mentally retarded.

    Friday's ruling was a victory for Warren Hill, who was sentenced to death in 1991 for killing a fellow inmate in a state prison in Lee County. At trial, Hill raised mental retardation claims.

    Writing jointly for the majority, judges Rosemary Barkett and Stanley Marcus said that while Georgia enacted the beyond-a-reasonable-doubt standard to decrease the risk of a defendant mistakenly being found the be mentally retarded, it actually increases the risk that a defendant will erroneously be found not to be mentally retarded. "This conception of the reasonable doubt standard, by its very terms, ensures that some, if not many, mentally retarded offenders will be executed in violation of the Eighth Amendment," the judges said.

    In dissent, Judge Frank Hull said the U.S. Supreme Court has left it up to individual states to decide the appropriate standard for mental retardation claims. Georgia's law, she added, gives a defendant a full and fair trial on mental retardation claims with "virtually no limit" to the evidence that can be presented to support such a claim.

    Fred Bright, district attorney of the Ocmulgee Judicial Circuit in central Georgia, said Friday's ruling came as no surprise. In 2007, out of an abundance of caution because he thought Georgia's law was vulnerable to attack, Bright agreed to not require Brian Duane Brookins prove he was mentally retarded beyond a reasonable doubt. Instead, Bright allowed Brookins to use the preponderance of the evidence standard.

    Brookins, who killed his estranged wife and stepdaughter, was still sentenced to death. "I like to try a death case once and get it right the first time," Bright said. "I knew Georgia's law was hanging by a thread because it was all the way out there all by itself."

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    Georgia Supreme Court chief urges lawmakers to fund new clerk for death penalty cases

    The Georgia Supreme Court is asking state lawmakers to fund a new clerk who would only work capital cases.

    Chief Justice Carol Hunstein on Wednesday urged lawmakers to approve the request for about $80,000 to hire a new capital case docket clerk for those cases.

    Chief Justice Carol Hunstein on Wednesday urged lawmakers to approve the request for about $80,000 to hire a new capital case docket clerk for those cases.

    She said "I don't think anyone outside the judiciary understands how complicated and complex these cases are."

    Georgia executed four people in 2011, including Troy Davis, whose claims of innocence attracted international attention.

    Corrections officials this week set an execution date for Nicholas Cody Tate for the 2001 murders of a woman and her 3-year-old daughter. He is set to die by lethal injection at the end of the month.

    http://www.therepublic.com/view/stor...Death-Penalty/

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    GEORGIA DEATH PENALTY

    ATLANTA — State lawmakers plan to take a look at Georgia's death penalty law, specifically the state's toughest-in-the-nation requirement for death row inmates to prove mental disability beyond a reasonable doubt to avoid execution. The discussion comes against the backdrop of ongoing legal battles in the case of death row inmate Warren Hill. His lawyers have long argued that he is mentally disabled and should be spared execution. Groups representing people with mental disabilities have taken particular interest in his case and plan to lobby lawmakers for a change to Georgia's law.

    http://www.wral.com/georgia-weekend-advisory/13007174/
    An uninformed opponent is a dangerous opponent.

    "Y'all be makin shit up" ~ Markeith Loyd

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