Cobb County District Attorney Pat Head spoke to Madison Forum members and guests on the subject of The Death Penalty at the regular breakfast meeting Saturday, October 27, 2007.
Mr. Head said he has had the opportunity to try many death penalty cases, and so he thought there might be some things to talk about in that regard, about the death penalty, because a lot of people don’t know about the death penalty in Georgia.
He asked how many people believe the death penalty is appropriate in certain cases. He said there are a lot of people who don’t, and we have arguments about that, and additionally, even though most of the audience raised their hands, when it comes down to the point of saying, could you actually vote for it, what has been found is that there are a lot of people who support it, but they can’t actually vote for it when it comes down to them. His analogy for that is how many of you wear cotton? So you support the cotton industry, you wear cotton. How many of you will pick it? There’s a big difference in supporting and doing.
But in that regard, Mr. Head said, we have the death penalty debate, and some people say it’s a human rights violation. But, it’s sort of a human rights violation to go out and murder someone. The victim was deprived of his or her human rights. People say it’s not a deterrent. Well how do we know? He said it would appear to him that when we impose the death penalty and actually carry it out he can guarantee it deters that individual from committing another crime.
Opponents say there are other ways to protect the public. Well, there are, but that’s not the purpose of the death penalty. The death penalty is imposed as a punishment. It is the ultimate punishment for the most heinous of all of our crimes. They say it is used against the mentally retarded. That is absolutely false, because if you have an IQ below 70, the death penalty cannot be imposed by any of the 50 states, and there are only 36 that impose the death penalty. They say it is used against juveniles. Again, that’s not true. It is not imposed on anyone who is under the age of 17. In fact, Georgia is now 18. They say it’s used against one race more than another. That is true. There are more white people on death row than any other race. They say it’s only used against the poor. That’s not exactly true. But think about the social economic level when the death penalty is applied. It could well be because of somebody’s social attitude, because of their lack of abilities, they don’t have a lot of money. Those individuals who are motivated, who have the ability to go out and earn an income, who really want to improve themselves, who are achievers, and therefore have money. They are less likely to do the violent crimes than those individuals who have failed with themselves, as we just had in the Stacey Humphries case, goes out and murders two people because he needs money to make a truck payment. So perhaps there is perhaps some ability there to say it is used against the poor, but it’s because some of those individuals are the masters of their own demise. They say it’s used when the family of the victim does not want it used. That’s true, but we should not let the opinions of the family dictate what we are going to do as a punishment in any of the crimes. And, they say there’s an alternative. It could be life without parole. Mr. Head said he didn’t know what we have observed over the last 40 or 50 years, but his observation has been that when people don’t like something, they start getting it changed. And they go to the Constitution. And, we have amended the Constitution many times. Life without parole may not necessarily mean life without parole. In fact, what does it really mean? Life means, today, that you’re eligible for parole consideration after 14 years. However, that’s been changed this year. If you commit a murder after July 1, 2006, that has moved to 30 years before you’re eligible for parole. It doesn’t mean that you will be paroled. It simply means there is as consideration for it. Life without parole says you’re not eligible for parole. Right now in the Georgia Constitution, Article V, Section 2, Paragraph 2, it says; notwithstanding any other provision of this paragraph, the State Board of Pardons and Parole is going to have the authority to pardon any person convicted of a crime who is subsequently determined to be innocent of said crime, or to issue a medical reprieve to an entirely incapacitated person suffering from a progressively debilitating terminal illness, or parole any person who is age 62 or older.
Mr. Head discussed what a capital case is and when one can impose the death penalty. Under Georgia law right now, a person convicted of the offense of murder should receive the death penalty or imprisonment for life. In Georgia we don’t have first degree murder, which is what we hear on television a lot. We have malice murder which means you intended to kill a person. That you went after the victim with malice aforethought. The degree of malice can be instantaneous, so there’s not a designated period of time in which you have to think about it. And, the other offense is felony murder. That is if you are in the commission of an inherently dangerous felony and somebody dies, that you didn’t intend for them to die, but nevertheless they die. Suppose someone goes in to rob a store, and the attendant pulls a gun and shoots at the robber. He misses the robber but hits one of the patrons. The patron dies. The robber is guilty of felony murder, because it was his actions that caused the death of some individual.
A person convicted of the offense of rape is punishable by death or imprisonment for life, or life without parole, or life or imprisonment for not less than ten or more than 20. That also has gone up to 30 years.
Aircraft hijacking is a death penalty crime as is armed robbery. Treason is a death penalty case. But, irrespective of what the law says, the reality is – not necessarily.
Under Coker v The State it says that in order for us to get the death penalty, in order for us to ask for the death penalty, there has to have been a death. Somebody had to die. In other words, you can’t get the death penalty unless there has been a murder. In Cobb County we have had several death penalty cases.
Virgil Presnell was tried in 1976. The government decided he didn’t get a fair trial as to punishment, so he had to be re-tried and re-sentenced in 1999.
In 1977 Jack Potts was given the death penalty. He also had to be re-tried and re-sentenced in 1990.
Brandon Jones. In 1979; he had to be re-tried in 1997. He is still on death row. His co-defendant, Roosevelt Solomon, also tried in 1979, was executed in 1985.
Fred Marion Gilreath killed his father-in-law and his wife. He actually took a shotgun and blew her head off and then tried to set the place on fire. He was executed in 2001. His daughter and son didn’t have anything to do with him for years. But one day, he was driving down the road by Jackson, and he said whatever motivated him, he turned into the prison and visited with his father, and they started a relationship again. He actually went to the Board of Pardons and Parole and asked them not to execute his father.
Nicholas Ingram, 1983. He was executed in 1995. James Cook died in prison in 1996. Lawrence Jefferson in 1986; the federal government has just overturned his punishment on appeal. That’s on appeal in the 11th Circuit. Marcus Williams, 1993. Demarcus Sears, 1993. George Henry, 1994. Andrew DeYoung, 1995.
Cobb County has tried several cases since then, but up until this year, Stacey Humphries, 2007, it is becoming more and more difficult for juries to impose the death penalty. The change from 1995 to 2000 was the change in the law that allowed jurors to consider life without parole. When that occurred it became a compromise. Prosecution asks for the death penalty, they have the choice of life, life without parole, or death; and jurors compromise on life without parole.
What are the procedures for the death penalty? Prosecution has to be able to prove beyond a reasonable doubt the existence of statutory aggravated circumstances. There are ten of those: Prior conviction for murder, rape, armed robbery, or kidnapping; the murder was engaged in the commission of another capitol felony; it created a great risk of death to more than one person in a public place, such as setting off a bomb to kill a person and other people were put at risk; or if you are shooting at someone in a public place and somebody dies. The murder was committed for the purpose of receiving money or other monetary value. The one that is used most is – the offense of murder, rape or armed robbery, or kidnapping was outrageously vile, horrible, or inhuman and that it involved torture, depravity of mind or an aggravated battery to the victim.
Mr. Head said he doesn’t know all the facts of the latest murder which involved a Game Stop store where the manager suffocated because of paper wrapping, but if it is shown that it was an intentional act, that they intended this man to die, to suffocate and die, then that will be a case that will be strongly considered for the death penalty.
The death penalty cases that we have pending – Michael Buttram committed his crime in 1999. Howard Lewis McDougal committed his in 2000. Craig Michael Moore committed his in 2002. Patrick Wayne Morris, Philip Ray Bailey, and Chad Michael McClure were co-defendant in a murder committed in 2002. The status of those cases – Michael Buttram was tried. The jury gave him life without parole. McDougal was tried. The jury gave him life without parole. Craig Michael Moore was tried. He received life without parole. Patrick Wayne Morris, Philip Ray Bailey, and Chad Michael McClure ended up entering a plea, and they were given life.
Since April 2003, Lawrence Rice committed two murders in 2003, Andrea Muhammad, in 2003, set her girlfriend, significant other, whatever you want to call her. Doused her with gasoline and set her on fire. Stacey Humphries committed his crime in November 2003, and Joshua Druper committed his crime in April 2004. The status of these is still on trial except for Humphries who received the death penalty in September 2007.
There are 38 states that authorize the death penalty. In 2005 (the latest Bureau of Justice statistics) said that 65% of those receiving the death penalty had prior felony convictions, and interestingly, 8% of those has prior homicide convictions. Those statistics were the same in 2003 and 2004. For some reason, that is a constant statistic. In 1998, 48 women were sentenced, in 2005, 52 women were sentenced. Of those statistics, whites are 56%, blacks are 42%, and others are 2%. In Georgia those percentages are 53% white, 46% black, and 1% others. Texas led the nation in executions in 2006. There were 53 executions nationally. Texas had almost half of them - 24. 45% of the executions were in Texas. Again, the percentages 60% white, 40% black. Georgia had three executions in 2005, and none in 2006. There were 3,254 people were under sentence of death at the end of the year 2005. Of those 52 were women. The youngest was 20. The oldest is 90. In 2005 there were 128 inmates in the United States sentenced to death. California led the nation with 23. Florida had 15. Texas 14, and Alabama 12. That 128 is the smallest number since 1973. From 1977 to 2005 there were 7,320 people sentenced to death. 14% were actually executed. 4% died of other causes. 37% received another disposition, and 45% of those remain on death row.
So, what does it mean? In 1976 Virgil Presnell raped a 10-year old girl and murdered an 8-year old girl. He kidnapped them from Russell Elementary School in west Cobb, and literally held the 8-year old face down into a stream so that she drowned. They found leaves and bits of stick in her lungs. 23 years later he was re-tried and he was re-sentenced to death. After 23 years you had a 10-year old victim who had to come in and remember everything that had occurred to her. She’s testifying now at 33, and testify again abut the incident. You had the victim’s parents who had to relive the death of their child. And then you had to use the resources of the state, manpower, and time in relocating the old witnesses. Mr. Head said he didn’t know how his audience felt, but he thinks this is wrong to have to go back and try a case after that many years. There are problems with the federal government and problems with Georgia’s government.
The problem is the appeals process. The murder is committed, the defendant is arrested, and then it takes three months to 18 months to indict him. In the Super Bowl killing, Ray Lewis was indicted and tried. He was acquitted. All the evidence suggested that he had something to do with those killings. However, the District Attorney in Fulton County had pressure from both the media and the Mayor because the individual was a professional football player and they wanted him to play football. So they asked and pressured him to indicting quickly before they had finished their investigation. When they went to trial they actually had detectives taking the stand, and the Assistant DA who was trying the case didn’t know what the detective was going to testify about. They would ask questions, and the detective would say –“that wasn’t me. I don’t know.” And the reason was they went too fast. When you indict a case, you’ve got to be 90% ready to go to trial. Otherwise, the defense will file a demand for a speedy trial and you’re going to be caught with your pants down. So that’s why it takes three to 18 months. In an arraignment somebody comes in and says what they are really charged with, and in a death penalty case they start filing motions. In a death penalty case they will file anywhere from 120 to 150 motions. Those things have to be heard. It takes six months to 48 months to hear all the motions, because the judge has to make decisions. It takes four to eight weeks, in some cases, to get a jury selected and try the case. In the Humphries case it took four weeks. The defendant is convicted. He files a motion for a new trial. It takes three months up to a year to get a transcript. Tokars was tried ten years ago, and he is in the Federal System, and he was given a life sentence here in Georgia, and we have not heard a motion for a new trial yet. It’s still pending. So his appeal process has not even started. The motions are heard, and then there is an automatic appeal to the Georgia Supreme Court. It is docketed. We have 20 days for them to file their brief. We have 20 days to respond. And they will set it for oral argument. That takes another three to five months. After oral argument it will take another two to five months to issue their opinion. We’re already up to 56 months. That’s almost five years. Hopefully it’s affirmed. It it’s not, we start all over. But if it is affirmed then they start the habeas corpus petitions. First you’ve got to have an attorney. Under Georgia law you don’t get an attorney appointed for you to file habeas corpus petitions. So that can take several months for that to occur. They will file for immediate review to the U.S. Supreme Court. The Court will take some time, six months minimum, in order to deny the motions. You then file state habeas corpus petitions, then the docketing. It finally gets assigned to a judge and they will schedule hearings on the habeas. It takes three to five months for that to occur. The judge will take the information given to them under advisement. Mr. Head said they had a case where the judge heard all the information and then sat on it for five years before he made a decision. It that’s denied, it is also appealed to the Georgia Supreme Court. If that appeal is denied, which can take six months to a year, then, it is appealed to the U.S. Supreme Court. That can take another six months to a year. An execution date is set. They will file for a stay. They’ll file the Federal habeas in the District Count. The U. S. District Court will take another year or two years before they issue their opinions. Another habeas appeal to the 11th Circuit. An appeal to the U.S. Supreme Court, another 12 to 18 months. And, a new execution date is set if they have affirmed it all the way to that point. Then there are last minute habeas issues that are filed. They generally are minor issues that can be heard within a couple of months. They file for a stay of execution with the Georgia Supreme Court. If that is denied, then they will file for clemency with the Pardons and Parole Board. If that is denied, they will file for a stay of execution with the United States Supreme Court. And, if all the applications for stay are denied, then finally there will be an execution. See how long that takes, 19-25 years. They just convicted Stacey Humphries. Mr. Head said he did not believe Humphries would be executed in his lifetime.
The best defense, Mr. Head said, is delay, delay, delay. That is the tactic that is being used in death penalty cases. In fact, just last week, an execution that was scheduled was delayed on October 23. The reason they stopped it was because the U.S. Supreme Court is going to listen to an argument that lethal injection is cruel and unusual punishment. When we ha the electric chair, we had dozens of groups fighting against the legislature and fighting in courts trying to convince everybody that the electric chair was cruel and unusual. And they suggested that Georgia should go to lethal injection. After many years, they finally won. The legislature changed the punishment and said, fine, we’ll have lethal injection. And as soon as they did groups turned around and started fighting lethal injection, saying that’s cruel and unusual. The bottom line is the death penalty is cruel and unusual punishment. And, that’s their argument. He said he was sure, hopefully not in his lifetime, but there’s as good chance it will, that the death penalty will stop being used in the United States. It’s coming/
Executions by state since 1976 - Georgia ranks 7th in the nation with 40. Texas had 405. 1976 is the benchmark when the U.S. Supreme Court stopped all executions and then in Gregg v Georgia, they came back and said as long as you have some criteria, and that’s where our statutory aggravating circumstances came in. The Supreme Court said as long as there is some basis that distinguishes this case from other cases, and the jury had to find that, then, the death penalty is legal again. At the present time there are 103 inmates on death row in the state of Georgia. In 31 years there have been 40 executions. Three of them came from Cobb County, Roosevelt Solomon, Rickey Ingram, and Fred Marion Gilreath.
So, what can we do? There are some things that need to be changed in the law. Federal and state habeases need to be filed at the same time. At the present, Mr. Head said, before he can get into the Federal courts he has to exhaust all his state remedies. Everything he can do under state law has t be done, and then he can start filing in the Federal system. In Texas they run on the same track. As son as you’re finished with the Supreme Court in Texas, the state court, then whatever Federal appeals, whatever state appeals you’re going to file, you have to file them at the same time. We need to change the time period. The habeas corpus petitions – all of them – need to be filed within one year from the state Supreme Court decision. Habeas says you are wrongfully holding the body and whoever files it, it gives them the right to challenge not only the Constitutional issues, but any defects that may have occurred in the trial itself. The petitioner says, I’ve had my rights denied, and the habeas is the vehicle to take it into court and have the court review it. A bigger problem is – there needs to be a mandatory time for the cases to be heard. Habeas corpus petitions need to be heard by the court within 180 days of filing, and, the judges need to make a decision, and they need to make that decision within 180 days. The decision needs to be made and filed within 180 days of the case being heard. The way to get it changed is to contact your legislator.