Chattahoochee Judicial District: BUCKLE OF THE DEATH BELT: The Death Penalty in Microcosm

Nearly 20 years after the Supreme Court held the death penal­ty uncon­sti­tu­tion­al – large­ly because of racial dis­crim­i­na­tion – the death penal­ty in America con­tin­ues to reflect the worst aspects of our judi­cial sys­tem: racism, unequal treat­ment of the poor, a shame­ful­ly inad­e­quate legal defense sys­tem and abuse of dis­cre­tion by ambi­tious pros­e­cu­tors and oth­er politi­cians seek­ing higher office.

The Chattahoochee Judicial District in Georgia is a micro­cosm of this national disgrace:

• Through the end of 1990, death sen­tences had been imposed against 20 peo­ple, more than in any oth­er dis­trict in the state, and near­ly twice as many as Atlanta which has three times the population;
• More than half of the black men sen­tenced to death were tried by all-white juries – after the District Attorney used his dis­cre­tion (peremp­to­ry chal­lenges) to remove every black potential juror;
• While black peo­ple account for 65 per­cent of all homi­cide vic­tims, the DA seeks the death penal­ty almost exclu­sive­ly in white victim cases;
• Families of white mur­der vic­tims are treat­ed with dig­ni­ty and respect by the DA’s office, while black vic­tims’ fam­i­lies are abused or ignored;
• For many years, a white pub­lic defend­er – appoint­ed by elect­ed white judges – refused to chal­lenge sys­tem­at­ic under­rep­re­sent-ation of blacks in the jury pool ​“for fear of incur­ring the community’s hostility;”
• The DA has sought the death penal­ty in near­ly 40 per­cent of the cas­es where the defen­dant was black and the vic­tim white, in 32 per­cent of the cas­es where both defen­dant and vic­tim were white, in just 6 per­cent of the cas­es where both defen­dant and vic­tim were black and nev­er where the defen­dant was white and the victim black.

By exe­cut­ing more peo­ple than any oth­er state, 80 per­cent of them black, Georgia has earned the title, ​“The Nation’s Executioner.” The legal his­to­ry of the death penal­ty in America can be traced in Georgia cas­es: Furman vs. Georgia (1972), which held the death penal­ty uncon­sti­tu­tion­al large­ly because of dis­crim­i­na­tion by race; Gregg vs. Georgia

(1976), which found the new death penal­ty con­sti­tu­tion­al with its two-part guilt/​penal­ty phase tri­als guid­ing jury dis­cre­tion; Coker vs. Georgia (1977), hold­ing the death penal­ty uncon­sti­tu­tion­al for the crime of rape – again in part because of a his­to­ry of dis­crim­i­na­tion; and McCleskey vs. Kemp (1987), which held the death penal­ty con­sti­tu­tion­al despite strong evi­dence that race of vic­tim is the most impor­tant vari­able in pre­dict­ing who will be sen­tenced to death.

The qual­i­ty of coun­sel in cap­i­tal cas­es is a nation­al dis­grace, but nowhere more so than in the South. In most south­ern states, there is no statewide indi­gent defense sys­tem. Lawyers are so poor­ly reim­bursed that they are often work­ing for less than min­i­mum wage. On occa­sion, lawyers who have nev­er tried a sin­gle crim­i­nal case at all are appoint­ed to rep­re­sent defen­dants fac­ing the death penal­ty. According to a com­pre­hen­sive report in The National Law Journal (6/​11/​90), lawyers in cap­i­tal tri­als in the South have been ​“sus­pend­ed, dis­barred or oth­er­wise dis­ci­plined at a rate (up to) 46 times the dis­ci­pline rates” for oth­er lawyers in those states. It is not uncom­mon for all-white juries to sen­tence black men to death in the elec­tric chair after less than an hour’s delib­er­a­tion. In one recent Chattahoochee case, after the fed­er­al court reversed just such a death sen­tence, com­pe­tent lawyers assigned to the case resist­ed the DA’s attempts to remove black jurors. As a result, a jury which includ­ed blacks sen­tenced the same defen­dant to life in prison.

The role of race in deter­min­ing who will receive soci­ety’s ulti­mate sanc­tion is not restrict­ed to the South:

• In Philadelphia, a sin­gle judge is respon­si­ble for sen­tenc­ing 26 peo­ple to death – two of whom were white;
• A Native American in California had his orig­i­nal death sen­tence reversed because of pre­vail­ing racism in the sen­tenc­ing coun­ty, and was acquit­ted at retri­al in a different county;
• Of the 148 peo­ple exe­cut­ed nation­wide since 1977, near­ly 90 per­cent were sen­tenced for killing white peo­ple, though black peo­ple con­tin­ue to be the vic­tims of mur­der at a rate six times greater than white people;
• Since the death penal­ty was rein­stat­ed in the 1970s, not a sin­gle white per­son has been exe­cut­ed for tak­ing the life of a black person.

This report, whose main focus is the Chattahoochee Judicial District in Georgia, should be viewed as a win­dow into a nation­wide sys­tem that is inher­ent­ly unfair, taint­ed by polit­i­cal con­sid­er­a­tions in the exer­cise of dis­cre­tion, and plagued by pre­vail­ing racial bias.

To Dr. Joseph Lowery, President of the Southern Christian Leadership Conference, the death penal­ty ​“per­pet­u­ates the ugly lega­cy of slave times, teach­ing our chil­dren that some lives are inher­ent­ly less pre­cious than oth­ers.” This report should be read in light of that indictment.

Defense Attorney Stephen Bright to District Attorney Doug Pullen, in death penal­ty tri­al of William Anthony Brooks:
”…these five black men were all tried by all-white juries and defend­ed by white lawyers, pros­e­cut­ed by white pros­e­cu­tors, and tried by white judges. Does that offend your sense of justice?”

Judge Hugh Lawson, inter­rupt­ing:
​“What does his sense of jus­tice have to do with it?” 

Death Penalty Information Center

DPIC with the sup­port of The Southern Christian Leadership Conference

1320 Eighteenth Street, NW, 5^th Floor, Washington, DC 20036
202 – 293-6970 /​Fax: 202 – 822-4787 by Michael Kroll for­mer Executive Director, Death Penalty Information Center 1991

TABLE OF CONTENTS
Summary: Chattahoochee – The Death Penalty in Microcosm
Introduction: Georgia, The Nation’s Executioner
Chattahoochee: The Valley of the Shadow of Death
The Quality of Justice
Politics of Death
Victims’ Families: A Contrast in Black and White
Conclusion: A House Divided

“I have known for a long time jus­tice has two faces: one white and one black.”

–Judge Albert Thompson, retired
Chattahoochee Judicial District

INTRODUCTION:
Georgia: ​“The Nation’s Executioner”

With more than 2,400 peo­ple under sen­tence of death and near­ly 150 exe­cu­tions car­ried out since the ten-year death penal­ty mora­to­ri­um end­ed in 1977, cap­i­tal pun­ish­ment con­tin­ues to be plagued by con­tro­ver­sy. Nowhere is this con­tro­ver­sy more intense or more stark­ly appar­ent than in Georgia, which has earned the title, ​“The Nation’s Executioner,” by hav­ing car­ried out more exe­cu­tions than any oth­er state. The fact that over 80 per­cent of those exe­cut­ed were black helped per­suade the U.S. Supreme Court in 1972 to inval­i­date death penal­ty statutes across the country.

In that deci­sion, Furman vs. Georgia, the high Court held the death penal­ty uncon­sti­tu­tion­al as applied, arbi­trary and capri­cious, and ​“preg­nant with discrimination.”[1] Former Justice Potter Stewart wrote, “…if any basis can be dis­cerned for the selec­tion of these few to be sen­tenced to die, it is the con­sti­tu­tion­al­ly imper­mis­si­ble basis of race.”[2]

Five years lat­er, anoth­er Georgia case, Coker vs. Georgia, end­ed the prac­tice of exe­cut­ing rapists. Race, again, played a piv­otal role in the deci­sion. From 1930, when the gov­ern­ment first began com­pil­ing such data, 62 men had been exe­cut­ed in Georgia for the crime of rape. Four of them were white. 58 of them – 94 per­cent – were black.[3]

Since adop­tion of its cur­rent death penal­ty law in 1973, Georgia has exe­cut­ed 14 peo­ple – ten black and four white. Thirteen of four­teen were elec­tro­cut­ed for killing white peo­ple, though black cit­i­zens are sig­nif­i­cant­ly more like­ly to be mur­der vic­tims than white cit­i­zens. In these respects, the pic­ture since Furman mir­rors the state’s pre-Furman pic­ture. By 1987, anoth­er Georgia case came under review by the U.S. Supreme Court. In McCleskey vs. Kemp, the defen­dant pre­sent­ed evi­dence demon­strat­ing a strong, statewide sta­tis­ti­cal link between race of vic­tim and the impo­si­tion of death. The data – accept­ed as valid by the Court – revealed that pros­e­cu­tors sought the death penal­ty in 70 per­cent of the cas­es where black defen­dants were impli­cat­ed in the killing of white peo­ple, but only 19 per­cent of the cas­es impli­cat­ing white defen­dants in the mur­der of black people.[4]

McCleskey’s evi­dence per­suad­ed the Court that ​“a dis­crep­an­cy that appears to cor­re­late with race” exist­ed in Georgia’s death sen­tences, but described the dis­par­i­ties as ​“an inevitable part of our crim­i­nal jus­tice system,”[5]and declined to find a constitutional violation.

The four-mem­ber minor­i­ty on the Court was dis­turbed that ​“there is a bet­ter than even chance in Georgia that race will influ­ence the deci­sion to impose the death penal­ty: a major­i­ty of defen­dants in white-vic­tim crimes would not have been sen­tenced to die if their vic­tims had been black.”[6] This was not enough, how­ev­er, to per­suade the majority.

The assump­tions that under­lay the Court’s major­i­ty (5 – 4) deci­sion in McCleskey are worth noting:

* That even the most sophis­ti­cat­ed study of sen­tenc­ing pat­terns can only demon­strate a degree of risk that race influ­ences some death penal­ty deci­sions, and not that it influ­enced any particular decision;

* That to vio­late the Equal Protection Clause of the 14^th Amendment, it would have to be shown that McCleskey’s deci­sion mak­ers had act­ed pur­pose­ful­ly to discriminate;

* That each death penal­ty is met­ed out by a jury ​“select­ed from a prop­er­ly constituted venire;”

* That the courts have ​“engaged in unceas­ing efforts to erad­i­cate racial prej­u­dice from our crim­i­nal jus­tice system.”[7]

The Chattahoochee Judicial District in south­west Georgia offers a high­ly focused view into the actu­al use of the death penal­ty, pro­vid­ing numer­ous exam­ples that test those underlying assumptions.

The six-coun­ty Chattahoochee Judicial District includes Georgia’s sec­ond largest city, Columbus, and the huge mil­i­tary base at Fort Benning. Across the Chattahoochee River to the west lies Alabama.

From 1973, when Georgia’s new­ly-enact­ed death penal­ty statute went into effect, until the end of 1990, there have been 28 cap­i­tal cas­es tried, result­ing in 20 death sen­tences – 75 per­cent more than Atlanta with near­ly three times the population.

These sta­tis­tics, and the expe­ri­ences they reflect for Columbus’ black cit­i­zens, have com­plete­ly under­mined any faith that the judi­cial sys­tem deals fair­ly and equi­tably with African-Americans. According to a recent poll in the Columbus Ledger-Enquirer, “…large num­bers of the city’s black res­i­dents feel that blacks do not receive the same treat­ment as whites in the crim­i­nal jus­tice system.”[8]

Gary Parker, who has rep­re­sent­ed both cap­i­tal­ly charged black defen­dants in court as well as the city of Columbus in the State Senate, says, ​“When it comes to the death penal­ty, we have two sys­tems of jus­tice – one for those who kill whites, and an alto­geth­er dif­fer­ent one for the killers of blacks.”[9]

THE QUALITY OF JUSTICE

The notion of ​“Equal Justice Under Law,” so under­mined by racial bias, is fur­ther erod­ed by the qual­i­ty of legal rep­re­sen­ta­tion in capital cases.

The American Bar Association found ​“the inad­e­qua­cy and inad­e­quate com­pen­sa­tion of coun­sel at tri­al (to be) the prin­ci­pal fail­ing” of the cap­i­tal pun­ish­ment sys­tem today.[10] It was pre­cise­ly this fail­ing that prompt­ed The National Law Journal, in its thor­ough study of the qual­i­ty of legal coun­sel in cap­i­tal cas­es in the South, to con­clude that ​“south­ern jus­tice in cap­i­tal mur­der tri­als is more like a ran­dom flip of the coin than a del­i­cate bal­anc­ing of the scales” because lawyers who defend the accused are ​“too often ill-trained, unpre­pared and gross­ly underpaid.”[11]

In Alabama, a cap­i­tal tri­al had to be delayed for a day when the defense lawyer came to court drunk and had to spend the night in lock-up. The tri­al resumed the next morn­ing, and his client was sen­tenced to death. One-fourth of those con­demned to death in Kentucky were rep­re­sent­ed by lawyers who have since been dis­barred, sus­pend­ed or impris­oned. In four dif­fer­ent cap­i­tal tri­als in Georgia, defense lawyers referred to their clients as ​“nig­ger.” The death penal­ty was imposed in all four.

Compensation for lawyers in cap­i­tal cas­es vir­tu­al­ly guar­an­tees bar­gain-base­ment jus­tice. Arkansas lim­its total com­pen­sa­tion of defense coun­sel in cap­i­tal cas­es to $1,000. Alabama places a sim­i­lar cap on out-of-court time. In one Georgia cir­cuit, cap­i­tal cas­es are assigned on a low-bid basis. In these cir­cum­stances, defen­dants fac­ing the death penal­ty are rep­re­sent­ed by lawyers who do not earn enough even to pay their office overhead.

The American Bar Association’s 1989 nation­al study of death penal­ty tri­als and appeals spared few states from crit­i­cism, but Georgia was espe­cial­ly sin­gled out. The report of the death penal­ty task force, chaired by con­ser­v­a­tive California Supreme Court Chief Justice, Malcolm Lucas, found:

“Georgia’s recent expe­ri­ence with cap­i­tal pun­ish­ment has been marred by exam­ples of inad­e­quate rep­re­sen­ta­tion, rang­ing from vir­tu­al­ly no rep­re­sen­ta­tion at all… to rep­re­sen­ta­tion by inex­pe­ri­enced coun­sel, to fail­ure to inves­ti­gate basic thresh­old ques­tions, to lack of knowl­edge of gov­ern­ing law, to lack of advo­ca­cy on the issue of guilt, to fail­ure to present a case for life at the penalty phase.”

In one recent case, a lawyer just admit­ted to the Georgia bar and employed by a civ­il firm in Columbus for less than a week, vis­it­ed the cour­t­house on a Wednesday where she met the judge. Two days lat­er, the judge phoned and appoint­ed her to han­dle the direct appeal of a man just sen­tenced to death. It was the first case of any kind she had ever handled.

Perhaps no case bet­ter illus­trates the qual­i­ty of jus­tice in the Chattahoochee Judicial District than that of William Anthony Brooks.

In 1977, Brooks was tried for the rape/​murder of a white Columbus res­i­dent, Jeanine Galloway. Mr. Brooks is black. It is the kind of high-vis­i­bil­i­ty, media-genic case that so often serves to advance the polit­i­cal careers of elect­ed pros­e­cu­tors, a fact not lost on then District Attorney Mullins Whisnant or his assis­tant, William Smith, both of whom are now judges. Brooks’ case was the first tele­vised death penal­ty tri­al in Georgia.

When the case came to tri­al, black cit­i­zens were, as a mat­ter of rou­tine prac­tice, under­rep­re­sent­ed in the jury pool.[12] Historically, black cit­i­zens had been exclud­ed from serv­ing on juries in this part of Georgia. In more recent times, the pat­tern of under­rep­re­sen­ta­tion of blacks con­tin­ued part­ly because the pub­lic defend­er – appoint­ed by the elect­ed white judge – refused to chal­lenge the prac­tice on behalf of his black clients ​“for fear of incur­ring hos­til­i­ty from the community.”[13]

There were only eight blacks among the 160 jurors sum­moned for the tri­al of William Brooks in 1977. A fair rep­re­sen­ta­tion among 160 poten­tial jurors would have includ­ed 50 black cit­i­zens. Three of the eight were dis­qual­i­fied by the judge dur­ing jury selec­tion. Using his dis­cre­tionary pow­er to remove poten­tial jurors, DA Whisnant struck all the remain­ing blacks from the jury.

After find­ing him guilty, it took the all-white jury less than an hour to sen­tence Brooks to death in the electric chair.

The ver­dict was set aside in 1986 by the U.S. 11^th Circuit Court of Appeals, not because the jury was skewed by the judi­cial process, but because an instruc­tion from the judge uncon­sti­tu­tion­al­ly shift­ed the bur­den of proof from the gov­ern­ment to prove guilt to the defen­dant to prove inno­cence. (About 70 per­cent of Georgia’s death judg­ments are over­turned by higher courts).

When the case was returned to Columbus for tri­al, Brooks was rep­re­sent­ed by the same lawyers who had won the rever­sal in the 11^th Circuit: Stephen Bright, of the Southern Prisoners’ Defense Committee (now The Southern Center for Human Rights), and George Kendall of the NAACP Legal Defense and Educational Fund. They brought on board Gary Parker, a black state sen­a­tor from Columbus.

What hap­pened there­after demon­strates that good lawyer­ing is the dif­fer­ence between life and death in cap­i­tal cas­es. First, they obtained a change of venue, argu­ing suc­cess­ful­ly that pre and post-tri­al pub­lic­i­ty – plus the fact that the tri­al itself had been tele­vised – had made find­ing a fair and impar­tial jury in Columbus impossible.

Second, in a series of pre-tri­al motions, they sought to meet the chal­lenge of McCleskey, mov­ing to pre­vent the District Attorney from even seek­ing the death penal­ty ​“because of racial dis­crim­i­na­tion in the pros­e­cu­tion of this case by the cur­rent District Attorney… and his two pre­de­ces­sors in office…”[14]

Ultimately, the motion failed, but not before the defense was able to put on evi­dence of the dis­parate treat­ment of blacks and whites that, con­scious­ly or not, was the rou­tine prac­tice of the office of the District Attorney.

Perhaps unsur­pris­ing­ly, pros­e­cu­tor Pullen con­tin­ued to dis­crim­i­nate, using all ten of his dis­cre­tionary jury strikes to remove blacks. Despite his efforts, how­ev­er, after jury selec­tion was com­plet­ed, eight blacks remained seat­ed on the jury.

In the same amount of time it had tak­en the first jury to sen­tence Mr. Brooks to death, it took the sec­ond jury to sen­tence him to life. In the first tri­al, accord­ing to attor­ney Bright, ​“the out­come was known before it even start­ed. (This tri­al proves) what I’ve always thought: that if we had a fair tri­al by a rep­re­sen­ta­tive jury, he would be sen­tenced to life imprisonment.”[15]

As in Brooks’ case, a ​“fair tri­al” often means phys­i­cal­ly remov­ing the case from the polit­i­cal influ­ences that dri­ve the death penal­ty. Far too often, how­ev­er, those influ­ences can not be evaded.

In 1988 the death penal­ty became the most promi­nent polit­i­cal sym­bol in the nation­al elec­tions, help­ing pro­pel George Bush for­ward while hob­bling his oppo­nent. Candidates in count­less races for gov­er­nor and state sen­a­tor and assem­blyper­son, in count­less states aped the President’s cam­paign, and did him bet­ter. In some races, macabre com­pe­ti­tions seemed to erupt as to who could kill the most mur­der­ers the fastest.

These statewide and nation­al cam­paigns were very vis­i­ble, even though they failed as often as they suc­ceed­ed. Newspapers wrote about them, tele­vi­sion news report­ed them. But the real impact of the pol­i­tics of death is at the oth­er end of the process where deci­sions are made by local DAs as to which cas­es to plea bar­gain, which to seek life and which death.

What is not vis­i­ble on the nation­al screen is how politi­cians manip­u­late the death penal­ty at the low­est lev­els, at the begin­nings of the polit­i­cal sys­tem. It is here, after all, that deci­sions about the death penal­ty make a real dif­fer­ence to indi­vid­ual lives. It is espe­cial­ly here, in the rur­al South where a vast­ly dis­pro­por­tion­ate num­ber of death cas­es arise, that the death penal­ty has launched many a local District Attorney into the polit­i­cal lime­light which is but a short jump to a judgeship.

Because judges are elect­ed at large, they must lit­er­al­ly appeal to the mass­es. It is no sur­prise, in this envi­ron­ment, to find high­ly pub­li­cized death penal­ty tri­als eas­i­ly and often serv­ing as the vehi­cle for that appeal. For DAs, the best cas­es involve the most emo­tion­al­ly charged set of facts of all: a black defen­dant and a white vic­tim. With a tri­al like that going on, the DA can pret­ty much count on the news­pa­per and tele­vi­sion to give him a daily platform.

Since 1973, when Georgia’s cur­rent death penal­ty statute took effect, Columbus has had three dis­trict attor­neys. Douglas Pullen, the cur­rent DA, served as assis­tant to both of his predecessors.

Mullins Whisnant served from 1970 to 1977. During his tenure, the death penal­ty was sought against five black men tried by all-white juries (Joseph Mulligan, Jerome Bowden, Johnny Lee Gates, Jimmy Lee Graves and William Brooks). Except for the life sen­tence met­ed out to the seri­ous­ly men­tal­ly trou­bled 16-year-old, Jimmy Lee Graves, each received a death sen­tence. Mulligan and Bowden, have already been executed.[16]

In the evi­den­tiary hear­ing pri­or to Mr. Brooks’ sec­ond tri­al, attor­ney Bright tried to get an expla­na­tion from the for­mer DA who is now a judge about the racial make-up of the juries in those cas­es, but pre­sid­ing judge, Hugh Lawson, would not permit it:

“Now, it’s fair to say that an all-white jury does­n’t rep­re­sent this com­mu­ni­ty does it?“

Former DA Whisnant: ​“No, I would­n’t say that that’s true. I’d say they could fair­ly rep­re­sent this community.”

Judge Lawson: ​“Well, why do you ask the question?”

Bright: ​“Because the juries don’t rep­re­sent the community.”

Judge: ​“Well, there’s no require­ment that they do.”\par Bright: ​“Well, I don’t think that’s com­plete­ly true, Your Honor.”\par Judge: ​“Well, the Court tells you that’s true.”\par Bright:​“Well, we’re talk­ing about dis­crim­i­na­tion and we’re talk­ing about the fact that all-white juries were try­ing cap­i­tal cas­es dur­ing Judge Whisnant’s term of office… five black men tried by all-white juries. I ask the same ques­tion I asked ear­li­er, is that fair, black peo­ple being tried by all-white juries?”

Judge: ​“I rule that that’s not relevant.”[17] Motion to bar the death penal­ty in the case of State of Georgia vs. William Anthony Brooks

The last cap­i­tal case tried by Mullins Whisnant as District Attorney was in November, 1977 – William Brooks’ first tri­al. Following that tri­al, Georgia’s first ever tele­vised, the DA was appoint­ed to the supe­ri­or court by the gov­er­nor. That is where he presides today.

His suc­ces­sor, William J. Smith, who assist­ed in pros­e­cut­ing the Brooks case, fol­lowed a sim­i­lar path to the bench. In 1979, he pros­e­cut­ed the cap­i­tal case of William Spicer Lewis, a black man. By using eight of nine dis­cre­tionary chal­lenges against black poten­tial jurors, Smith got an all-white jury which sen­tenced Lewis to death.

In yet anoth­er black-defen­dant mur­der case, that of William Henry Hance, then DA Smith used sev­en of eight strikes to remove black poten­tial jurors, leav­ing one black cit­i­zen on the jury. When the death sen­tence was reversed, the DA called a press con­fer­ence to denounce the decision.

When William Spicer Lewis’ death sen­tence was reversed by a high­er court, it came back for resen­tenc­ing before the only black judge ever appoint­ed to sit in the Chattahoochee Judicial District. Judge Albert Thompson resen­tenced Lewis to life in prison, and was imme­di­ate­ly denounced at a press con­fer­ence called by DA Smith. Judge Thompson was defeat­ed in the next election.

When William Brooks’ case was reversed by the U.S. 11^th Circuit Appeals Court, Mr. Smith again called a press con­fer­ence – after con­fer­ring with the vic­tim’s fam­i­ly – to announce that he would again seek the death penalty.

In anoth­er high­ly pub­li­cized case in which the vic­tim was the daugh­ter of a promi­nent white con­trac­tor, Mr. Smith phoned to ask the con­trac­tor per­son­al­ly what pun­ish­ment he want­ed the DA to seek. When the con­trac­tor told him to go for the death penal­ty, Smith told him that was all he need­ed to hear. He secured a death sen­tence and was reward­ed with a $5,000 con­tri­bu­tion – his largest sin­gle con­tri­bu­tion – to run for judge in the next election.

In 1988, D.A. Smith was elect­ed to the supe­ri­or court bench where he presides today.

The evi­den­tiary hear­ing on the motion to pro­hib­it District Attorney Pullen from seek­ing the death penal­ty in the retri­al of William Brooks pro­duced some star­tling tes­ti­mo­ny. Former DAs Whisnant and Smith, and present DA Pullen all tes­ti­fied that it was their prac­tice to keep vic­tims’ fam­i­lies ful­ly informed of the proceedings.

“I gen­er­al­ly will meet with the fam­i­ly and intro­duce myself, and this is some­thing I’ve done for years and years,” Pullen tes­ti­fied. “(I) tell them that I’ll be pros­e­cut­ing the case and try to explain to them what the pro­ce­dure is.”[18]

A suc­ces­sion of fam­i­ly mem­ber wit­ness­es, how­ev­er, exposed the DAs prac­tice to be some­what one-sided: when the vic­tim is white, the DA is solic­i­tous of the fam­i­ly’s feel­ings, often pay­ing them cour­tesy vis­its at their homes and then announc­ing, at a press con­fer­ence, that he will be seek­ing the death penal­ty in accor­dance with the family’s wishes.

A parade of black wit­ness­es, how­ev­er, who had lost one or more fam­i­ly mem­bers to mur­der, revealed a clear pat­tern of neglect, even abuse at the hands of offi­cials. Not only did none of the mur­ders of their rel­a­tives lead to a cap­i­tal tri­al, but offi­cials often treat­ed them as criminals:

• Jimmy Christian was informed by the police in 1988 that his son had been mur­dered. That was the last he heard from any offi­cials. He was nev­er advised of any court pro­ceed­ings. When an arrest was made, he heard about it on the street. He was not informed of the tri­al date or the charges.[19]
• Johnny Johnson came home from church in 1984 to find the body of his wife, her throat cut. His one con­tact with offi­cials occurred when he was briefly jailed on sus­pi­cion of her mur­der. Ultimately, an arrest was made, but Mr. Johnson was not informed either of the arrest or of the tri­al and sen­tenc­ing. ​“They did­n’t tell me noth­ing,” he testified.[20]
• Gloria Tell’s daugh­ter was mur­dered in 1984. She learned by read­ing the papers that her daugh­ter’s boyfriend had com­mit­ted the mur­der. She was only informed of the pre­lim­i­nary hear­ing when she phoned the coun­ty jail to inquire. No one from the DA’s office ever both­ered to con­tact her.[21]
• Lola Comer’s daugh­ter was mur­dered in 1981. She heard there was a sus­pect, and phoned the police to ask if there would be a tri­al. The case was already resolved, she learned, in a plea bar­gain, and the per­pe­tra­tor sen­tenced to twelve years. No one from the DA’s office talked to her at all. ​“How did it make you feel?” she was asked on the stand. ​“It made me feel bad. It hurt­ed me real bad.”[22]
• Mildred Brewer wit­nessed the shoot­ing of her daugh­ter in 1979. Instead of being allowed to accom­pa­ny her in the ambu­lance to the hos­pi­tal, she was tak­en to police head­quar­ters and ques­tioned for three hours – dur­ing which her daugh­ter died. When a sus­pect was arrest­ed, indict­ed, tried and sen­tenced, Mrs. Brewer heard noth­ing from the DA.[23]
• Gregory Henderson’s broth­er was robbed and mur­dered in 1987, and his girl­friend shot to death. Mr. Henderson was asked to go to the police sta­tion to iden­ti­fy the pos­si­ble per­pe­tra­tors. Once there, he was phys­i­cal­ly assault­ed by the police and told he was a sus­pect in his broth­er’s mur­der. This went on for a num­ber of hours until his stead­fast insis­tence that he had noth­ing to do with it per­suad­ed the police to let him leave. He learned lat­er – through the news media – that arrests had been made. No one from the DA’s office ever con­tact­ed him or his fam­i­ly about the arrests, the plea bar­gains, or the jail sentences.[24]

At one point dur­ing this litany of abuse and offi­cial neglect toward the black com­mu­ni­ty, Judge Lawson tried to cut the process short:

The Court: ​“All of these peo­ple appar­ent­ly have a rel­a­tive who was mur­dered?“

Defense Counsel: ​“That’s cor­rect, Your Honor.”

The Court: ​“Someone was arrest­ed and ulti­mate­ly sen­tenced for the crimes, and each case they will tes­ti­fy they were not con­tact­ed by the DA’s office?”

Defense Counsel: ​“That’s correct,Your Honor.”

The Court: ​“Is that it? Will the state stipulate…”

The state quick­ly stip­u­lat­ed to its pat­tern of dis­crim­i­na­tion, but defense coun­sel con­tin­ued to put the black wit­ness­es on the stand, one after anoth­er, since this was the first time they had been offered any oppor­tu­ni­ty to express any emo­tion on behalf of their mur­dered spous­es, sib­lings, par­ents and chil­dren to any officials.

One of the most reveal­ing exchanges of all came between for­mer DA and now Judge William Smith, and attor­ney Stephen Bright. It was Smith who had orig­i­nal­ly secured the death sen­tence against defen­dant William Brooks. Now, dur­ing Brooks’ retri­al, he tes­ti­fied that he had kept in close con­tact with the Galloways, the victim’s family.

But the Brooks fam­i­ly, too, had been vic­tim­ized by mur­der. Attorney Bright asked Judge Smith about that:

Bright: ​“Were you ever in touch with any mem­ber of Mr. Brooks’ fam­i­ly?“

Smith: ​“No.”

Bright: “…after his father was killed in 1982.”

Smith: ​“No.”

Bright: ​“His sis­ter? His moth­er? Or anybody?”

Smith: ​“No.”

Bright: ​“Did you even know his father was killed?”

Smith: ​“I was­n’t aware of that.”

Whether con­scious or not – aware or not – the effects of race, both as a lega­cy from the past and an ugly reflec­tion of prej­u­dice today, con­tin­ue to play a pri­ma­ry role in deter­min­ing who will pay soci­ety’s ulti­mate sanc­tion. Fatal to the notion of Equal Justice Under Law – that lofty prin­ci­ple inscribed in stone above the entrance to the Supreme Court – racism and its appli­ca­tions in the death penal­ty process are not con­fined to Georgia’s Chattahoochee Judicial District.

Just across the Chattahoochee River, two min­utes from down­town Columbus, lies Russell County, Alabama. There, a severe­ly men­tal­ly impaired black man, George Daniel, awaits retri­al. Daniel was con­vict­ed and sen­tenced to death for killing a police offi­cer in 1981. The vic­tim, Officer Claypool, had tried to arrest Daniel for wan­der­ing from house to house look­ing for a place to stay. Daniel resist­ed; the two strug­gled. In the course of the strug­gle, the offi­cer was shot.

Last year, the fed­er­al District Court deter­mined that Daniel’s coun­sel had pro­vid­ed inad­e­quate rep­re­sen­ta­tion at tri­al. Seeking to dis­cred­it Daniel’s incrim­i­nat­ing state­ment, his lawyers had asked wit­ness after wit­ness if they knew of any black per­son who spoke as well.

In the course of rein­ves­ti­gat­ing the case, new attor­neys dis­cov­ered that the state’s expert wit­ness, a staff ​“psy­chol­o­gist” for eight years at the state men­tal hos­pi­tal who had tes­ti­fied that Daniel had no men­tal health prob­lems, was a fraud. Although his employ­ment his­to­ry includ­ed work as a prison guard in California and Arizona, he was not a psy­chol­o­gist and nev­er had been.

In anoth­er Russell County case, the District Attorney struck every black prospec­tive juror, leav­ing an all-white jury to sen­tence Robert Tarver. Despite that, the jury split 8 – 4 in favor of a life sen­tence. Casting his lot with the four, the judge sim­ply ignored the major­i­ty’s rec­om­men­da­tion for life, and imposed a death sen­tence. Alabama is one of three states (Florida and Indiana are the oth­ers) which per­mit judges to impose death over a jury’s deci­sion to spare the defen­dant – and about one of every four Alabama death sen­tences was imposed despite the jury’s contrary recommendation.

Bordering Russell County is Chambers County, noto­ri­ous for the lack of legal resources and the delays in pro­vid­ing coun­sel for indi­gent defen­dants (one black man wait­ed in jail for three and half years on a cap­i­tal offense before see­ing an attor­ney). It is also a place where offi­cial mar­riage records are still kept in books engraved with the unmis­tak­able words, ​“white” and ​“colored.”[25]

Albert Jefferson was sen­tenced to death by an all-white Chambers County jury. The District Attorney in the case appealed to the jury’s racial fears, sug­gest­ing that a death sen­tence would ​“send them a mes­sage” because ​“they’ve been com­ing into our neigh­bor­hoods.” There is lit­tle doubt who ​“they” are.

Before select­ing his jury in the Jefferson case, the pros­e­cu­tor ranked the 101 prospec­tive jurors into four cat­e­gories: ​“strong,” ​“medi­um,” ​“weak” and ​“black.” He exer­cised all 26 of his dis­cre­tionary strikes in select­ing his jury – all against black cit­i­zens. Not a sin­gle white was struck, a fact accept­able to the pre­sid­ing judge. Apparently, the ​“weak­est” white was prefer­able to the ​“strongest” black.[26]

Such exam­ples abound:

• Every exe­cu­tion of a juve­nile offend­er in Louisiana since slav­ery has fol­lowed one pat­tern: black defen­dant, white vic­tim, all-white jury;
• The Florida Supreme Court’s Racial and Ethnic Bias Study Commission released its report late in 1990 find­ing unfair treat­ment of minori­ties in every aspect of the crim­i­nal justice system;
• A Native American pris­on­er sen­tenced to death in California had his sen­tence over­turned because of the pre­vail­ing racial bias­es in the com­mu­ni­ty, was retried in a dif­fer­ent coun­ty, and was acquitted;
• A sin­gle judge in Philadelphia, PA, is respons-ible for sen­tenc­ing 26 peo­ple to death (20 per­cent of the state’s total). Of these, only two were white.

Former Columbus Superior Court Judge, Albert Thompson, recent­ly described the jus­tice sys­tem as hav­ing ​“two faces: one white and one black.”[27] Unfortunately, this obser­va­tion is not lim­it­ed to a sin­gle judi­cial dis­trict. The Chattahoochee Judicial District in Georgia is a micro­cosm of death penal­ty prac­tices in this coun­try, both his­tor­i­cal­ly and cur­rent­ly. While state resources to seek death are vir­tu­al­ly unlim­it­ed, defense lawyers are severe­ly hob­bled by lack of mon­ey, not just for their own time but for the ser­vices of inves­tiga­tive and men­tal health experts. Local pol­i­tics pro­vide irre­sistible incen­tives for ambi­tious pros­e­cu­tors to turn white-vic­tim mur­der cas­es into dra­mat­ic vehi­cles for their ambi­tion, espe­cial­ly when the defen­dant is black. Official racism man­i­fests itself repeat­ed­ly in cap­i­tal tri­als, from choos­ing which cas­es to select for death and which to plea bar­gain, to keep­ing fam­i­lies of vic­tims informed or not, to strik­ing black prospec­tive jurors, to resort­ing to press con­fer­ence the­atrics to denounce unfavorable decisions.

Tried by an all-white jury in a high­ly polit­i­cal­ly-charged envi­ron­ment, William Brooks was sen­tenced to death in less than an hour. Retried by com­pe­tent coun­sel whose aggres­sive efforts ensured that black cit­i­zens were fair­ly rep­re­sent­ed on the jury, Brooks was resen­tenced to life.

The tragedy is that few who face soci­ety’s ulti­mate penal­ty are as for­tu­nate as Mr. Brooks. Few come to the atten­tion of the small cadre of attor­neys trained in the intri­ca­cies of cap­i­tal lit­i­ga­tion. Fewer, still, are able to secure the ser­vices of those overworked attorneys.

The dif­fer­ence, as Mr. Brooks’ case makes clear, is that between death and life. It is as if a patient suf­fer­ing an extreme­ly rare form of brain can­cer were forced to be treat­ed by a gen­er­al prac­ti­tion­er with the bare min­i­mum qual­i­fi­ca­tions and no instru­ments, instead of a skilled spe­cial­ist with the prop­er tools and assis­tants. The dif­fer­ence is between death and life.

While this report was being pre­pared, two new death penal­ty cas­es were decid­ed in Columbus. On the same day – Sunday, February 10 – two sep­a­rate juries returned ver­dicts in two separate cases.

James Robert Caldwell, noto­ri­ous for rap­ing and mur­der­ing his 12-year-old daugh­ter and stab­bing his 10-year-old son near­ly to death, was sen­tenced to life in prison. Mr. Caldwell is white.

It took jurors just over an hour to sen­tence Jerry Walker to death in the elec­tric chair. He mur­dered a con­ve­nience store clerk in the course of a rob­bery – the son of a promi­nent, white mil­i­tary offi­cial at neigh­bor­ing Fort Benning. After his for­mer boss in the DA’s office, now Judge Mullins Whisnant set the date for Mr. Walker’s exe­cu­tion, District Attorney Doug Pullen said, ​“The first step of jus­tice has been served.” Mr. Walker is black.[28]

Since the Furman deci­sion in 1972, we have had near­ly twen­ty years of expe­ri­ence to test the fair­ness of the mod­ern death penal­ty. That expe­ri­ence demon­strates once again that the intractable prob­lem of racial dis­crim­i­na­tion is at the heart of its appli­ca­tion. As long as the polit­i­cal process gov­erns deci­sion mak­ing in regard to cap­i­tal pun­ish­ment, the death penal­ty will con­tin­ue to be applied to as it always has been, to America’s pow­er­less: racial minori­ties, the poor and the men­tal­ly dis­abled. The prob­lem, nation­al in scope, demands national solutions.

There are things which can be done to min­i­mize the per­ni­cious effects of race and class in death penal­ty lit­i­ga­tion. To begin with, com­pe­tent legal coun­sel should be the right of every­one fac­ing a cap­i­tal tri­al, the most com­plex of all crim­i­nal pro­ce­dures. To achieve even a sem­blance of fair­ness, min­i­mal stan­dards of com­pe­ten­cy – of train­ing and expe­ri­ence – must be required of those appoint­ed to rep­re­sent cap­i­tal­ly charged defen­dants at tri­al. Adequate com­pen­sa­tion and resources for expert advice must be guar­an­teed. To pro­vide less is to per­pet­u­ate a national disgrace.

Second, Congress must address the race ques­tion head-on. The crime bill report­ed out of both the Senate and House Judiciary Committees in 1990 includ­ed a pro­vi­sion called the Racial Justice Act which pro­vides to the con­demned the same mech­a­nism now avail­able to those who allege race bias in hous­ing and employ­ment: the right to show, through sta­tis­tics and oth­er evi­dence, an uncon­sti­tu­tion­al pat­tern and prac­tice of racial dis­crim­i­na­tion in the appli­ca­tion of the death penal­ty by the deci­sion mak­ers in that case.

The bill foundered last year because the Senate failed to pass the Racial Justice Act. This year, Congress again will have an oppor­tu­ni­ty to imple­ment the Racial Justice Act. It is long-since time such a rem­e­dy were part of the federal law.

April 22, 1990, marked the fourth anniver­sary of the Supreme Court’s deci­sion in McCleskey vs. Kemp. In light of what still pass­es for jus­tice in the Chattahoochee Judicial District, in Georgia and in the nation, the words of now retired Associate Justice William Brennan in that case ring with a spe­cial clar­i­ty. Writing in dis­sent against the deci­sion of the five-mem­ber major­i­ty, he warned:

“…we remain impris­oned by the past as long as we deny its influ­ence in the present. It is tempt­ing to pre­tend that minori­ties on death row share a fate in no way con­nect­ed to our own, that our treat­ment of them sounds no echoes beyond the cham­bers in which they die. Such an illu­sion is ulti­mate­ly cor­ro­sive, for the rever­ber-ations of injus­tice are not so easily confined.”