Georgia

Georgia

Georgia Lawyers Seek to Intervene After Brain-Damaged Defendant Permitted to Represent Herself in Death-Penalty Trial

Arguing that a brain-damaged woman facing the death penalty for the starving death of her young daughter “was incapable of representing herself,” lawyers from the Georgia Office of the Capital Defender have asked that they be reappointed as her counsel if the case advances to the penalty-phase of her trial for life or death. Gwinnett County Superior Court Judge George Hutchinson had permitted Tiffany Moss (pictured) to discharge her lawyers and represent herself, even though she has not reviewed the boxes of evidence turned over to her by the prosecution, produced no list of defense witnesses, and said she was placing her defense in God’s hands. She asked very few questions during pretrial proceedings, gave no opening statement, and did not cross-examine witnesses presented by the prosecution. When the prosecution rested on April 26, Moss presented no defense. Veteran Atlanta criminal defense lawyer Jack Martin told the Atlanta Journal-Constitution: “It looks like a prolonged suicide. God may be an all-powerful and merciful force in nature, but he’s a lousy criminal defense lawyer.”

No Georgia jury has imposed a death sentence since 2014, largely because of the representation provided by the Office of the Capital Defender. The office’s lawyers were relegated to the role of stand-by counsel when Hutchinson permitted Moss to represent herself, although media reports indicate they had previously filed a motion alerting the court to her brain damage. In their motion, the capital defenders advised the court that “neuropsychological testing data … showed the defendant to have damage to the premotor and prefrontal regions of the brain.” Dr. Don Stein, the Director of the Brain Research Laboratory at Emory University, told the Atlanta television station 11 Alive that these portions of the brain “are very much thought to be intimately involved in executive function, decision making, and impulse control.” Those brain functions are critical to making rational judgments about self-representation. On April 25, the capital defender lawyers filed a motion in the trial court to terminate Moss’s self-representation in a potential death-penalty phase of the trial. The motion argued that “[t]he jury will have nothing upon which to base a life sentence [if Moss represents herself in the penalty phase], not because Mrs. Moss wanted the death penalty, but because she was incapable of representing herself. … Society’s interest in justice is not served by such a one-sided and arbitrary proceeding.”

Moss’s case, and another trial in progress in Cleveland, Ohio, illustrate the difficulty the judicial system has in assessing the competence of defendants to represent themselves and in ensuring reliability of capital proceedings in which they are permitted to do so. A Cuyahoga County jury convicted Joseph McAlpin of aggravated murder on April 18, 2019, after he had represented himself in the guilt portion of the trial. Following his conviction, McAlpin asked the court for a mitigation report and a pre-sentence investigation to help him present mitigating evidence. To provide time to complete these reports, the court delayed the start of the penalty phase until May 13. Life history investigations typically take months to perform and provide information critical to the mental health evaluation and to giving the jury a full picture of the defendant’s background, upbringing, and impaired ability to function in society.

As death sentences decline nationwide, many of those still sentenced to death are defendants whose cases involved the most unreliable trial proceedings. In 2018, one of every seven death sentences was imposed without a unanimous jury vote, often after defendants were permitted to waive critical trial rights. Several of those defendants fired or refused to cooperate with counsel.

Supreme Court Refuses to Hear Georgia Death-Penalty Case Involving Racist Juror

For the second time in just over one month, the United States Supreme Court has cleared the way for the execution of an African-American prisoner in the face of strong evidence of racial or religious bias. On March 18, 2019, the Court unanimously declined to hear an appeal from Georgia death-row prisoner Keith Tharpe (pictured), who argued his death sentence was unconstitutionally tainted by the participation of racist white juror who called him a “ni***er” and questioned “if black people even have souls.” That juror, Barney Gattie, signed an affidavit also saying that there were “two types of black people: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did.” In February, in a decision that evoked widespread condemnation from critics across the political spectrum, the Court vacated a stay of execution for Domineque Ray, a Muslim death-row prisoner, after Alabama denied his request to have an Imam present at the execution in circumstances in which it provided a chaplain for Christian prisoners.

Though agreeing on procedural grounds that the Court should not review the case, Justice Sonia Sotomayor issued a statement in connection with the Court’s action saying she was “profoundly troubled by the underlying facts of the case.” She wrote: “These racist sentiments, expressed by a juror entrusted with a vote over Tharpe’s fate, suggest an appalling risk that racial bias swayed Tharpe’s sentencing.” Justice Sotomayor said the latest decision “may be the end of the road for Tharpe’s juror-bias claim,” and the Court should therefore “not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.” "It may be tempting to dismiss Tharpe's case as an outlier, but racial bias is a familiar and recurring evil," she wrote. "That evil often presents itself far more subtly than it has here. Yet Gattie's sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arresting demonstration that racism can and does seep into the jury system."

In January 2018, the U.S. Supreme Court ordered the U.S. Court of Appeals for the Eleventh Circuit to reconsider Tharpe’s case, acknowledging that Tharpe had “present[ed] a strong factual basis for the argument that [his] race affected Gattie’s vote for a death verdict.” However, the appeals court refused to review his discrimination claim, saying he had never presented the issue to the state courts. Tharpe sought review of that decision by the U.S. Supreme Court, and received support from a number of groups, including Catholic bishops and the NAACP Legal Defense Fund.

Responding to the Court’s decision, Tharpe’s attorney Marcia Widder said in a statement: “Today’s decision from the U.S. Supreme Court takes giant steps backwards from the Court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice. What happened in Mr. Tharpe’s death penalty case was wrong. … Allowing Mr. Tharpe’s death sentence to stand is an affront to the fairness and decency to which we, as a society, should aspire.  True justice would not permit the State of Georgia to execute Mr. Tharpe on the basis of this record.” The NAACP Legal Defense Fund, which filed an amicus brief urging the Court to hear Tharpe’s case, issued a statement saying, “the Court’s refusal to consider his case on the merits is deeply distressing. As the Court recognized in Buck [v. Davis, in which a mental health expert testified that Buck posed an increased risk of future dangerousness because he is black], allowing death sentences to stand tainted by overt racial discrimination weakens public confidence in the rule of law and the administration of justice.” Putting it more directly, commentator Michael Harriot wrote for The Root, “Unlike the appeals process, apparently racism has no expiration date.”

Death-Row Prisoners Ask Supreme Court to Review Georgia, Oklahoma Verdicts Involving Racist Jurors

Georgia death-row prisoner Keith Tharpe (pictured, left) and Oklahoma death-row prisoner Julius Jones (pictured, right) are asking the U.S. Supreme Court to grant them new trials after evidence showed that white jurors who described the defendants with racist slurs participated in deciding their cases. The involvement of the racist jurors, the prisoners say, violated their Sixth Amendment rights to impartial juries. A juror in Tharpe’s trial gave a sworn affidavit years after voting to convict Tharpe, in which he wondered “if black people even have souls,” and said, “there are two types of black people: 1. Black folks and 2. N***rs." Tharpe, he wrote, “wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did." In Jones’s case, a juror told Jones’s legal team that another juror had said the trial was “a waste of time” and “they should just take the n***r out and shoot him behind the jail.”

Tharpe and Jones argue that two 2017 Supreme Court decisions, Peña-Rodriguez v. Colorado and Buck v. Davis, require the Court to reconsider their cases. In Buck, Chief Justice John Roberts declared for the Court that “the law punishes people for what they do, not who they are,” and overturned a death sentence imposed after a psychologist testified that Buck posed a greater risk of future dangerousness because he is black. The Chief Justice wrote that “discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice,” calling racism a “toxin[ that] can be deadly in small doses.” In Peña-Rodriguez, now-retired Justice Anthony Kennedy wrote for a five-justice majority of the Court that courts may consider a juror’s statement showing he had relied on racial stereotypes to convict a defendant as evidence of a Sixth Amendment violation.

In January 2018, the U.S. Supreme Court overturned a federal appeals court’s refusal to consider Tharpe’s racial discrimination claim.  Less than three months later, that court again refused to consider the issue, saying Tharpe had not previously presented it to the state courts. Jones has also repeatedly sought review of claims that racial discrimination has infected his case. He previously asked the Court to overturn his death sentence based on the findings of a 2017 study that showed significant racial disparities in Oklahoma’s death sentencing practices. On January 22, 2019, after having rescheduled consideration of Jones’s appel 25 times, the Court declined to review the case. Samuel Spital, who was co-counsel in Buck’s case and is lead counsel on the brief of the NAACP Legal Defense and Educational Fund’s friend-of-the-court brief supporting Tharpe, said of Tharpe and Jones, “We know that these two men are facing execution at least in part because they’re black. Under those circumstances, the state just doesn’t have an interest in enforcing a death sentence, and for that reason, the procedural obstacles that you would have with respect to certain other claims should not be part of the analysis.” The cases are considered a bellwether of the post-Kennedy Court’s commitment to racial justice.

Georgia Approaches Five Years With No Death Sentences

For the first time since Georgia brought back the death penalty in 1973, the state will go five years without imposing any death sentences. No jury has handed down a death sentence since March 2014 and, with no capital trials scheduled for February or March, the state is nearly certain to reach the 5-year milestone. The decline in death sentencing is even more dramatic in light of the fact that, prior to 2015, Georgia had never gone two consecutive years without a death sentence. Experts attribute the decline primarily to two factors: improved death-penalty representation and the availability of life without parole.

Georgia’s Office of the Capital Defender — a statewide death-penalty public defender office — represents nearly everyone facing the death penalty in the state. The capital defender has reduced the number of death sentences by thoroughly investigating the life and mental health histories of its clients and working with prosecutors before trials even begin to reach non-capital dispositions. In December 2015, Jerry Word, who heads the state defender office, credited those efforts with preempting numerous capital trials. Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, told the Atlanta Journal-Constitution in January 2019 that the capital defender’s office “has become real good at identifying mitigating factors for a defendant and talking about that with prosecutors long before lines are drawn in the sand. This has made a real difference, and you save the resources and the time required of a death-penalty case and the victims don’t have to go through the years-long process.” In 2014, only one of the state's 19 potential capital cases ended in a death sentence and, by the end of 2015, that case had been the only one of the preceding 71 cases handled by the capital defender that had resulted in a death verdict. Since 2015, the capital defender has closed 69 death-penalty cases, of which just five went to trial and none resulted in a death sentence.

Both defense attorneys and prosecutors said that the availability of life without parole as a sentencing option also has fundamentally changed the way potentially capital cases are tried and the verdicts juries reach. Prior to 2009, life without parole was not an option in Georgia unless prosecutors actually sought the death penalty. Now, prosecutors may seek life without parole without capitally prosecuting a defendant. Cobb County District Attorney Vic Reynolds said, “[t]he majority of prosecutors around the state are now convinced that a life-without-parole sentence actually means what it says. It’s made a huge difference.” As a result, prosecutors now file notices to seek death much less often. In 2005, Georgia prosecutors filed 40 notices of intent to seek the death penalty. By 2011, that number had dropped to 26, and in 2017, it was just three.

The decline in death sentences paints a sharp contrast between the way cases were handled in the past and how they are handled today. According to Steve Bright, former director and president of the Georgia-based Southern Center for Human Rights, the people on Georgia’s death row did not commit worse crimes than today’s defendants, they simply faced a worse system. The state has executed 19 prisoners since a jury last imposed a death sentence in the state, in cases criticized as out of step with current practices and emblematic of systemic problems with the state’s death penalty. “Those are people who were sentenced to death some time ago often with lawyers who were not qualified to try a death-penalty case,” Bright said, describing Georgia’s death-row prisoners. “They are also people who would not be sentenced to death today.”

Citing Evidence of Innocence, Race Discrimination, Georgia Court Grants New Trial to Former Death-Row Prisoner

A Georgia judge has granted a new trial to Johnny Lee Gates (pictured recently, right, and at the time of trial, left) based on new evidence that excludes him as the source of DNA on implements used by the killer during the 1976 rape and murder for which Gates was sentenced to death. DNA testing disclosed that Gates’s DNA was not found on a necktie and the bathrobe belt the prosecution said were used by the killer to bind Kathrina Wright, the 19-year-old wife of a soldier stationed at Fort Benning during the murder. In a January 10, 2019, decision overturning Gates’s conviction, Senior Muscogee County Superior Court Judge John Allen credited the analysis of defense DNA expert Mark Perlin that Gates’s DNA was not present on the evidence. Judge Allen noted that Perline had trained the two Georgia Bureau of Investigation scientists the prosecution relied upon in the most recent court proceedings in the case and that the testimony of the GBI witnesses supported Perlin's conclusions. Judge Allen wrote that “[t]he exclusion of Gates’ profile to the DNA on the two items is material and may be considered exculpatory” and entitled Gates to a new trial.

Gates, who is African American, was convicted and sentenced to death by an all-white jury in a racially charged case. His death sentence was overturned in 2003 based upon evidence that he is intellectually disabled, and he was resentenced to life. Heightening the racial tensions of a black man accused of raping and murdering a young white woman, prosecutors deliberately excluded African American jurors from the case. Lawyers from the Georgia Innocence Project and Southern Center for Human Rights filed a motion in March 2018 arguing that Columbus, Georgia prosecutors engaged in a pattern and practice of systematically striking black prospective jurors because of their race in Gates’s case and six other capital cases with black defendants, discriminatorily empanelling all- or nearly-all-white juries in those cases. The prosecutors’ jury selection notes in those seven capital trials showed that the state attorneys in his case had carefully tracked the race of jurors, struck every black juror they could, and repeatedly wrote derogatory comments about blacks and black prospective jurors. A Georgia Tech mathematics professor provided expert testimony that the probability that black jurors were removed for race-neutral reasons was infinitesimally small – 0.000000000000000000000000000004 percent. In an opinion that excoriated local prosecutors for “undeniable ... systematic race discrimination during jury selection,” Judge Allen found that the prosecutors “identified the black prospective jurors by race in their jury selection notes, singled them out … and struck them to try Gates before an all-white jury.” However, the court said the race discrimination against Gates was not grounds to grant him a new trial because he had not shown that the lawyers who previously represented him did not have access to the evidence of systematic discrimination.

Supreme Court Lets Death Sentence Stand for Prisoner Whose Attorney Presented No Mitigating Evidence

Over a sharp dissent by three justices, the United States Supreme Court has let stand the death sentence imposed on a Georgia prisoner who was suffering from dementia, brain damage, and borderline intellectual functioning, but whose trial lawyer failed to present any mitigating evidence. On January 7, 2019, the Supreme Court denied the petition for writ of certiorari filed on behalf of death-row prisoner Donnie Cleveland Lance seeking the Court’s review of the Georgia Supreme Court's denial of relief in his case. Justice Sonia Sotomayor – joined by Justices Ruth Bader Ginsburg and Elena Kagan – dissented, writing that “the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied.”

Lance was sentenced to death by a Georgia court for the 1997 murder of his ex-wife and her boyfriend. Lance’s trial lawyer – a solo practitioner who was convinced he could persuade the jury of Lance’s innocence – asked the trial court to appoint a second lawyer to handle any potential penalty phase. The court denied that request and also denied a defense motion for funds to retain expert witnesses to challenge the range of experts hired by the prosecution in the case. After the court denied his motions, Lance’s lawyer conducted no penalty-phase investigation and did nothing to prepare for the penalty phase. Following Lance’s conviction, counsel made no penalty-phase opening statement, called no witnesses, and presented no mitigating evidence. In his cursory closing argument, counsel asked the jury to think of Lance’s family and to not seek vengeance. 

New counsel represented Lance in his state post-conviction proceedings and presented extensive evidence of Lance’s serious cognitive impairments. Four mental health experts agreed that Lance had brain damage in his frontal lobe, that his IQ was on the borderline for intellectual disability, and that he suffered from clinical dementia. While the three defense experts agreed that Lance’s brain damage significantly impaired his ability to control his impulses and conform his conduct to the law, the state’s expert disagreed about the extent of his impairment. The trial court overturned Lance’s death sentence, ruling that counsel had provided ineffective representation. However, the Georgia Supreme Court reversed, holding that while counsel’s performance was deficient, the presentation of mitigating evidence would have been futile given the facts of the murder. On federal habeas corpus review, the Georgia federal courts ruled that the Georgia Supreme Court had not unreasonably applied Supreme Court precedent when it upheld Lance’s death sentence.

The three-justice dissent from the U.S. Supreme Court’s decision not to intervene argued that the Georgia Supreme Court decision was “an objectively unreasonable application” of U.S. Supreme Court precedent and had “mischaracterized or omitted key facts and improperly weighed the evidence.” The evidence of Lance’s “‘serious’ and ‘significant’” mental impairments, Justice Sotomayor wrote, “reasonably could have affected at least one juror’s assessment of whether Lance deserved to die for his crimes, and Lance should have been given a chance to make the case for his life.” Instead, she said, “Lance may well be executed without any adequately informed jury having decided his fate.”

NEW VOICES: Retiring Georgia Bureau of Investigation Director Predicts End of Death Penalty

As he prepared for retirement, the long-time director of the Georgia Bureau of Investigation (GBI) said he does not support the death penalty and believes the punishment is on its way out in Georgia and across the country. In a television interview on his final day of work as GBI director, Vernon Keenan (pictured) told WXIA-TV, Atlanta’s NBC television affiliate, that he has “never believed in the death penalty” and “[t]he day will come when we won’t have the death penalty in Georgia and in the United States.”

Keenan, a 45-year veteran of law enforcement who has run the state criminal justice agency for the past sixteen years, called the death penalty outdated and ineffective in advancing public safety. Keenan said, “I don’t believe the death penalty deters anyone. The people that commit crime, they don’t believe they’re going to get caught. The death penalty is just a way society gets retribution from the criminal.” He told WXIA that he believes declining public support for capital punishment will ultimately lead elected officials to reconsider whether the death penalty should remain part of the state’s criminal code.

Keenan’s belief that the death penalty is not a deterrent reflects the widely held beliefs of many senior criminal justice personnel. A 2008 study found that 88% of the nation’s leading criminologists believe the death penalty is not an effective deterrent to crime and that three-quarters of them believed that debates over the death penalty “distract legislatures from real crime solutions.” A 2008 poll of 500 police chiefs in the United States, commissioned by DPIC, found that police chiefs rank the death penalty lowest among crime fighting options as “most important for reducing violent crime.” The chiefs believed that increasing the number of police officers, reducing drug abuse, and creating a better economy were all more important in reducing crime. More than two-thirds (69%) said that “[p]oliticians support the death penalty as a symbolic way to show they are tough on crime.” “I believe life in prison without parole is punishment enough,” Keenan said. “Probably worse than death.”

Georgia was one of only eight states to carry out executions in 2018. No Georgia jury has recommended a new death sentence since 2014.

Georgia Supreme Court Hears First Death-Penalty Appeal in Two Years Amidst Sharp Decline in Death Sentences

In the midst of a sharp decline in death sentences in the state, the Georgia Supreme Court on June 4 heard a direct appeal in a capital case for the first time in two years. In March 2018, Georgia reached the four-year mark since it had last imposed a death sentence, a dramatic change for a state that once handed down 15 death sentences in a single year. The decline in Georgia's death penalty exemplifies broader national death-penalty trends. In 1987, when Georgia handed down those 15 death sentences, 288 people were sentenced to death across the country. Thirty years later, in 2017, Georgia was completing its third consecutive calendar year with no death sentences, and the national total was just 39. Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, credits the public's preference for life without parole (LWOP) sentences, saying the availability of LWOP has made a "huge difference." "[W]hen you sit down with victims’ families and discuss the process of a death-penalty case with all the pretrial hearings, then the years of appeals that follow, I have found that families like the finality of life without parole. It lets them get on with their lives," he said. Other prosecutors have found that the reluctance of juries to impose death sentences has made them less likely to seek death. Gwinnett County District Attorney Danny Porter called it "a self-fulfilling prophesy," noting, "As more and more juries give fewer death sentences, prosecutors begin to think it’s not worth the effort." The Georgia capital defender office's early intervention program has also reduced the number of death sentences by presenting prosecutors with reasons to decapitalize a case and reaching plea deals before a trial begins. Jerry Word, who leads that office, said, "The average time to resolve a case in early intervention has been less than eight months. The average time to get a case to trial is over three years. This results in a saving in court time and dollar savings to the state and county." Although prosecutors are seeking and juries imposing fewer and fewer death sentences, Georgia has continued to carry out controversial executions of defendants who likely would not be sentenced to death today. These include the December 2015 and March 2018 executions of Brian Keith Terrell and Carlton Gary, despite evidence that they may have been innocent; the May 2018 execution of Robert Earl Butts, Jr., although no Georgia jury has sentenced any defendant to death in the past decade in a case like his that involved a single victim and only one aggravating circumstance; executions of several men whose equally or more culpable co-defendants received lesser sentences; and prisoners who were intellectually disabled. The U.S. Supreme Court also has ruled against Georgia in three capital cases since 2016, Foster v. Chatman, involving race discrimination in jury selection; Tharpe v. Sellers, involving a juror who said he doubted whether black people had souls; and Wilson v. Sellers, which presented a procedural habeas corpus issue.

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