Georgia

Georgia

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.

Georgia Parole Board Grants Stay to Robert Earl Butts, Jr. to Further Consider His Clemency Request [UPDATE: STAY LIFTED]

Robert Earl Butts, Jr.The Georgia State Board of Pardons and Paroles has halted the execution of Robert Earl Butts, Jr. (pictured), less than 24 hours before the state intended to put him to death. On May 2, the Board stayed Butts's execution for up to 90 days, saying it needed additional time "to examine the substance of the claims offered in support of the application." In a news release accompanying the issuance of the stay, the Board said it had received a "considerable amount of additional information ... regarding the case" and, "because the Board understands the importance and seriousness of its authority and responsibility," it issued a stay. Board spokesperson Steve Hayes said the Board "will continue consideration of the case and at a later date make a final decision" and that decision "could come during the stay or at the end of the 90-days.” The Board has the power to lift the stay, allowing the execution to proceed, or grant clemency to Butts, commuting his sentence to life without parole. Because Georgia death warrants remain active for a full week, Butts remains at risk of imminent execution if the Board lifts the stay on or before May 10. A new execution warrant would be required to execute Butts if the Board denies his commutation request and lifts the stay after that date. Butts's clemency petition claims that he did not shoot Donovan Corey Parks, the off-duty correctional officer killed during a carjacking, but that his co-defendant, Marion Wilson, was the triggerman. The application includes a sworn statement from Horace May—a jailhouse informant who had testified at trial that Butts had confessed to him—saying that he had fabricated the confession after Wilson had asked him to testify against Butts. The petition also says the jury was given unsupported, false, and inflammatory information that Wilson and Butts were gang members and the killing was gang-related. Wilson is also sentenced to death, and currently has an appeal pending before the U.S. Court of Appeals for the 11th Circuit. Butts also argued that his personal circumstances and his remorse for his involvement in the killing provided "compelling grounds for mercy." Butts was just 18 at the time of the crime and, the petition says, endured "profound childhood neglect" from parents who "left him to care for his younger siblings while they roamed the streets of Milledgeville, each in the grip of mental illness, drug addiction or both." In addition, the clemency petition argues that execution is a disproportionately severe punishment in light of the unwillingness of juries to impose the death penalty today in similar cases. In the past decade, no Georgia jury has sentenced any defendant to death in a case like this that involved a single victim and only one aggravating circumstance. [UPDATE: The Board lifted the stay late in the day on May 3, and the state executed Butts on May 4.] 

In Georgia Death-Penalty Case, Supreme Court Rebuffs Effort to Further Limit Habeas Corpus Review

In a decision most significant for what it declined to do, the U.S. Supreme Court has rebuffed efforts by state prosecutors to further limit the scope of federal habeas corpus review of state criminal cases. In a 6-3 vote with Justice Breyer writing for the majority, the U.S. Supreme Court ruled in favor of Georgia death-row prisoner Marion Wilson (pictured), saying that he was entitled to federal-court review of the reasons why the Georgia state courts had rejected his claim that he had been provided ineffective penalty-phase representation. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, dissented. The Court reversed a decision of the U.S. Court of Appeals for the Eleventh Circuit that had denied Wilson's ineffective assistance claim based upon speculation as to why the state appeals court—which had issued only a one-sentence decision—had earlier denied the claim, rather than considering the reasons the trial court had actually done so. The technical legal issue in the case was how a federal court should handle a habeas corpus case filed by a state prisoner when the state appellate court, without explanation, summarily affirmed a reasoned lower-court ruling against the prisoner. Wilson had been sentenced to death in Baldwin County, Georgia in 1997. In his state post-conviction proceedings, he alleged that he had been denied the effective assistance of counsel in his penalty-phase proceedings when his lawyer failed to investigate and present available mitigating evidence that could have spared his life. The state post-conviction court conducted an evidentiary hearing, after which it denied relief, issuing a written order that explained the court's reasoning. Wilson then asked the Georgia Supreme Court for permission to appeal the order but the court summarily turned him down saying only that "it be hereby denied." Wilson next filed a habeas corpus petition asking the federal courts to review his ineffective assistance of counsel claim, arguing that, under the federal habeas statute, he was entitled to relief because the state court had unreasonably determined the facts and unreasonably applied the law when it rejected his claim. The federal district court agreed that Wilson had been ineffectively represented, but ruled against him nonetheless, deferring to the state court's conclusion that his trial counsel's failures had not been prejudicial. In an opinion that would have created a nearly insurmountable bar for a habeas petitioner to meet, the Eleventh Circuit held that federal courts should "not 'look through' a summary decision on the merits to review the reasoning of the lower state court," but should limit their review to whether any possible rationale could support the state appeals court judgment. The Supreme Court disagreed. Rather than adopting "an approach ... that would require a federal habeas court to imagine what might have been the state court’s supportive reasoning," Justice Breyer said that the habeas court should "look through" an unexplained state court decision on the merits and "presume that the unexplained decision adopted the same reasoning" as that employed by the lower court. That presumption, he wrote, may be rebutted if the state is able to show that the unexplained decision most likely rested on other grounds. The Court returned Wilson's case to the Eleventh Circuit with instructions to review his ineffectiveness claim under the correct standard. The ruling is the second time this Term the Court has sided with death-row prisoners on procedural issues affecting access to federal review of their cases. In March, the Court issued a ruling preserving indigent death-row prisoners' access to investigative funds "reasonably necessary" to develop their habeas corpus claims, overturning a ruling by the Fifth Circuit that had required habeas petitioners to meet a harsher standard.

Black Prisoner on Georgia’s Death Row, Sentenced by Racist Juror, Denied Federal Court Appellate Review

Less than three months after the U.S. Supreme Court directed a federal appeals court to reconsider whether Georgia death-row prisoner Keith Tharpe (pictured) is entitled to federal-court review of his claim that he was unconstitutionally sentenced to death because he is Black, the U.S. Court of Appeals for the Eleventh Circuit has declined to review Tharpe’s appeal, saying he had never presented the issue to the state courts. Citing “principles of comity and federalism,” the court denied Tharpe’s application for a certificate of appealability—a federal court prerequisite for a habeas petitioner to appeal—on the grounds that the Georgia state courts “have yet to examine” Tharpe’s juror-misconduct claim. Tharpe was sentenced to death by a Georgia jury that included a racist White juror who called him a “ni***er,” and questioned “if black people even have souls.” The juror, Barney Gattie, signed an affidavit 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.” Gattie’s affidavit also said “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks,” but denied that race influenced his own vote. When Tharpe first presented the claim to the state and lower federal courts, it was denied based on a state-court rule prohibiting courts from considering evidence questioning why jurors reached their verdict. However, after Tharpe’s claim was rejected, the U.S. Supreme Court decided a case in 2017, Pena-Rodriguez v. Colorado, that made clear a state rule cannot insulate a juror’s overt expressions of racial bias from judicial review. While Tharpe faced imminent execution in September 2017, he asked the state and federal courts to review the issue again in light of Pena-Rodriguez. The Georgia Supreme Court and the Eleventh Circuit both denied his request. Three hours after his execution was scheduled to start, the U.S. Supreme Court issued a stay of execution based upon his federal appeal. On January 8, 2018, the Court granted Tharpe’s petition for certiorari and vacated the judgment of the Eleventh Circuit. The Court said the fact that Gattie had never retracted his “remarkable affidavit” strongly suggested that “Tharpe’s race affected Gattie’s vote for a death verdict.” Tharpe is expected to ask the Supreme Court to review the circuit court’s latest ruling. On April 2, he filed a separate petition asking the Court to review the Georgia state court’s denial of the issue.

NEW PODCAST—Racial Discrimination in Death-Penalty Jury Selection: A Conversation with Steve Bright

Race discrimination exists at every stage of the death-penalty process, says veteran death-penalty and civil-rights lawyer Stephen B. Bright (pictured), but “the most pervasive discrimination that is going on is in jury selection.” In a new Discussions With DPIC podcast, Bright—the former President of the Southern Center for Human Rights who has argued jury discrimination cases three times in the U.S. Supreme Court—calls the “rampant” racial discrimination in jury selection “a matter of grave urgency.” In an interview with DPIC’s Anne Holsinger, Bright speaks about the most recent of those cases, Foster v. Chatman, a Rome, Georgia case in which the Court granted Timothy Foster a new trial as a result of intentional discrimination by prosecutors. New evidence, Bright says, now shows that prosecutors in Columbus, Georgia systematically struck African-American jurors in at least seven other capital cases, including three in which defendants have already been executed. Bright explains how jury-selection notes were critical in proving that prosecutors had unconstitutionally targeted African-American jurors in Foster’s case because of their race. Those notes, he says, allowed defense attorneys to “pull back the cloak of secrecy” that usually shrouds decisions on jury strikes. Jury-selection notes recently uncovered from the files of Columbus prosecutors—including the same prosecutor found to have discriminated against Foster—showed the systemic and long-standing nature of this unconstitutional practice. In 1986, in Batson v. Kentucky, the Supreme Court declared the intentional striking of any juror on the basis of race to be unconstitutional. “Thirty years after [Batson] was decided,” Bright says, “it’s pretty clear that it has failed completely to prevent race discrimination in jury selection.” Batson “doesn’t really have any teeth,” he says, because it permits prosecutors to evade clear inferences of discrimination by providing race-neutral pretextual explanations for striking jurors of color that the trial courts routinely accept. To address the problem, Bright proposes a new legal standard for finding discrimination, moving away from ;a subjective assessment of whether the prosecutor intentionally discriminated to an objective assessment of whether “a reasonable person knowing all of the facts” would think the jurors had been stricken on the basis of race. Increasing the representation of people of color on juries would result in “much more faith in the courts and the integrity of the courts,” Bright says, because trials with all-white juries, judges, prosecutors, and defense attorneys erode the community’s confidence in the legal system. “People do not think that ... those trials are legitimate, because a big portion of the community has been completely excluded from participating in the judicial process.”

Jury Notes Show Georgia Prosecutors Empaneled White Juries to Try Black Death-Penalty Defendants

New court filings argue that Columbus, Georgia prosecutors had a pattern and practice of systematically striking black prospective jurors because of their race, discriminatorily empanelling all- or nearly-all-white juries to try black defendants on trial for their lives in capital murder cases. In a supplemental motion seeking a new trial for Johnny Gates (pictured)—a black man sentenced to death by an all-white jury in 1977 for the rape and murder of a white woman—lawyers from the Southern Center for Human Rights and the Georgia Innocence Project presented evidence from seven capital trials involving his trial prosecutors, showing that they carefully tracked the race of jurors, struck every black juror they could, and repeatedly wrote derogatory comments about blacks and black prospective jurors. “Race discrimination undermines the credibility and reliability of the justice system,” said Patrick Mulvaney, managing attorney for capital litigation at the Southern Center. “Mr. Gates is entitled to a new trial that is fair and free of race discrimination.” Jury selection notes from the seven cases contain “W”s next to the name of each white juror and “N”s next to the names of the black jurors, and variously describe black jurors as “slow,” “old + ignorant,” “cocky,” “con artist,” “hostile,” and “fat.” They say one white male would be “a top juror” because he “has to deal with 150 to 200 of these people that works for his construction co.” Prosecutors also kept racial tallies of the empaneled jurors, with twelve marks in the white column and none in the black column. In Gates' case, prosecutors rated jurors on a scale of 1 to 5, with 5 being the most favored, and ranked every black juror a “1.” The only white juror ranked a “1” had said he was opposed to the death penalty. The Muscogee County District Attorney’s Office’s office repeatedly refused to disclose the jury notes to Gates’s lawyers until the trial court issued an order in February directing them to do so. The notes were never disclosed to the defendants in the other cases, three of whom—Jerome Bowden, Joseph Mulligan, and William Hance—Georgia has already executed. Gates was prosecuted by Douglas Pullen and William Smith. Pullen prosecuted five capital trials involving black defendants between 1975 and 1979, striking all 27 black prospective jurors and successfully empaneling five all-white juries. A decade later, he prosecuted Timothy Foster, another black defendant sentenced to death by all-white Columbus jury for strangling an elderly white woman. Foster's lawyers subsequently discovered jury selection notes that documented similar discriminatory practices in his case, and in May 2016, the U.S. Supreme Court vacated Foster’s conviction saying that “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.” Gates’s second prosecutor, Smith, was one of the prosecutors in four capital trials of black defendants between 1975 and 1979. In three of those case, prosecutors struck all of the black prospective jurors. In the fourth, Gates’s motion says, prosecutors struck ten black prospective jurors, but could not empanel an an all-white jury “because the final pool of prospective jurors had more black citizens than the prosecution had strikes.” Gates was taken off death row in 2003 because of intellectual disability. He is also challenging his conviction on grounds of innocence and arguing that prosecutors withheld exculpatory evidence in the case. Blood found at the scene was a different blood type than both Gates and the victim and DNA testing of implements used to restrain the victim did not match Gates. After interrogation by police, Gates gave a taped confession that was inconsistent with the physical evidence. A different confession, given earlier by a white man caught fondling the victim’s body in the funeral home, more accurately described the crime scene. The next court hearing in the case is scheduled for May 7.

Georgia Prisoner Seeks Clemency with New Evidence of Possible Innocence

Carlton Gary, a Georgia death-row prisoner scheduled for execution on March 15, is asking the Georgia Board of Pardons and Paroles to grant him clemency on the basis of new and withheld evidence that undercuts the prosecution testimony against him and suggests he did not commit the crimes for which he was sentenced to death. Gary was convicted of raping and killing three women in the 1970s, in what prosecutors have claimed was part of a string of nine burglaries and rapes committed by a single perpetrator. Gary’s lawyers argue that new evidence that was either unavailable or undisclosed at the time of his trial raises enough doubt about his guilt that he should not be executed. In his clemency petition, his lawyers write: “We are not talking about questionable recanting witnesses who came forward long after trial, but hard physical evidence of innocence.” Bodily fluid testing performed on semen from two of the crime scenes likely excludes Gary, but conclusive DNA testing couldn’t be performed because the samples were contaminated while in the possession of the Georgia Bureau of Investigation crime lab. In some of the most damning evidence prosecutors presented at trial, the survivor of one of the attacks identified Gary as her assailant. However, DNA testing later performed on evidence from her attack excluded Gary as the perpetrator and police withheld an initial report from that rape victim in which she told officers that she had been asleep and her bedroom had been dark at the time of the attack, and she could not identify or describe her attacker. Shoeprint evidence from the scene was also withheld from Gary’s defense team until 20 years after his trial. The size 10 print found at one of the crime scenes could not have been left by Gary, who wears size 13½ shoes. Prosecutors also claimed that Gary had confessed to participating in the crimes, but not to raping or murdering the victims. However, police neither recorded nor contemporaneously documented his alleged statement, which his lawyers say “fits all the recognized hallmarks of a false confession that never happened.”

U.S. Supreme Court Orders Federal Appeals Court to Reconsider Case Involving Racially Biased Juror

The U.S. Supreme Court has directed a federal appeals court to reconsider whether Georgia death-row prisoner Keith Tharpe (pictured) is entitled to federal court review of his claim that he was unconstitutionally sentenced to death because he is black. On January 8, the U.S. Supreme Court issued a 6-3 opinion sending Tharpe's case—in which a racist juror used an offensive slur to describe the defendant and doubted whether African Americans have souls—back to the U.S. Court of Appeals for the Eleventh Circuit for further consideration whether the federal courts should hear his claim of juror bias. Seven years after Tharpe was sentenced to death, his attorneys obtained a sworn affidavit reviewed and initialed by Barney Gattie, a white man who served as a juror at Tharpe's trial. In his statement, Gattie said, "After studying the Bible, I have wondered if black people even have souls," and, "there are two types of black people: 1. Black folks and 2. Ni[**]ers." Gattie also expressed his belief that Tharpe "wasn’t in the ‘good’ black folks category in my book, [and] should get the electric chair for what he did." According to Gattie, the victim was one of the "nice black folks," but "[i]f [the victim] had been the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much." Despite these statements, the Georgia state courts rejected Tharpe’s racial-bias claim after prosecutors obtained a second affidavit from Gattie asserting that he was not a bigot. State prosecutors have not denied that Gattie made these statements, but have attempted to defend them by saying that Gattie had been drinking when he signed the affidavit. The Georgia federal courts had also denied Tharpe relief on the claim, deferring to the fact-finding of the state courts that Gattie's bigoted statements were not prejudicial. However, in 2017, the U.S. Supreme Court decided two major cases that Tharpe said required the federal courts to reconsider his claim:  Buck v. Davis, a Texas death-penalty case in which the racially biased testimony of an expert witness created an unacceptable risk that Buck was sentenced to death because he was black, and Pena-Rodriguez v. Colorado, a case that overturned a state-court rule that prevented defendants from using racially biased statements made by a juror as evidence of juror misconduct during deliberations. Georgia was scheduled to execute Tharpe in September 2017, but the Supreme Court granted him a last-minute stay to decide whether to review his case. The Court ultimately accepted review of the case, issued a per curiam ruling in Tharpe v. Sellers  without further briefing or argument, and returned the case to the Eleventh Circuit, which must now consider whether to issue a Certificate of Appealability—a procedural prerequisite to considering an issue on appeal. Brian Kammer, Tharpe's attorney, said, "We are thankful that the U.S. Supreme Court recognized the serious implications for fundamental fairness of the clear evidence of racial animus on the part of one of the jurors who sentenced Mr. Tharpe to death." Justice Clarence Thomas dissented, joined by Justices Alito and Gorsuch, criticizing the Court for interfering in the case and failing to respect the lower courts' judgments.

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