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Just as defense lawyers warned, Georgia’s new lethal injection law is facing a constitutional challenge. But the challenge, filed in a Carroll County death penalty case, doesn’t cite changes the General Assembly made to Georgia’s death penalty statutes earlier this year, substituting lethal injection for electrocution. Instead, it cites changes the Legislature didn’t make. Language in one particular statute, unaltered since at least 1924, appears to give Georgia’s governor the power to stay an execution. The governor, however, has had no authority to stay an execution in Georgia since the Constitution was changed in 1983 to reserve that power for the state Board of Pardons and Paroles. Lawyers for accused cop killer Jeffrey V. McGee argue the statute, O.C.G.A. 17-10-33, stating how an execution may be carried out and how it may be halted, should be stricken because it conflicts with the Constitution. McGee is charged with gunning down Villa Rica Police Capt. Robbie Bishop during a traffic stop on I-20 on Jan. 20, 1999. Bishop was known among law enforcement officials throughout the state for his prowess in nabbing drug traffickers along the interstate. McGee’s name appeared on the last warning ticket Bishop wrote on the day he died. McGee was captured in Canada two weeks after the killing. State v. McGee, No. 99-CR-277 (Carroll Super. motion filed May 4, 2000). Prosecutors are seeking the death penalty against McGee. ‘NUTS AND BOLTS’ NOT ADJUSTED Multicounty Public Defender B. Michael Mears, who is handling the case with Kenneth W. Krontz, a sole practitioner in Douglasville, Ga., says legislators failed to adjust the “nuts and bolts” of the statutory language, a failure which he argues “shows the danger of tinkering” with Georgia’s death penalty laws. The statute says the local sheriff shall deliver the defendant to the correctional facility for execution “unless otherwise directed by the Governor or unless a stay of execution has been caused by an appeal, granting of a new trial, or other order of a court of competent jurisdiction.” CONSTITUTIONAL POWERS On the other hand, Article IV, Section II, Paragraph II of the Constitution places all power to stay executions and grant pardons and paroles with the Board of Pardons and Paroles. The board’s chairman or another member designated by the board “may suspend the execution of a sentence of death until the full board shall have an opportunity to hear the application of the convicted person for any relief with the power of the board,” the provision says. The defense brief also points out that a second statute, O.C.G.A. 42-9-56, which is not part of the death penalty laws, provides that the Governor “shall have no authority or power whatever over the granting of pardons or paroles.” The death penalty statute that seems to give the governor the power to stop an execution, Mears says, doesn’t remove the Board of Pardons and Paroles’ power, but is clearly in conflict with the Constitution and must be stricken. “There’s no way anybody can construe this statute as constitutional,” he says, adding that he’ll file similar motions to strike the law in other death penalty cases his office is handling around the state. Carroll County District Attorney Peter J. Skandalakis says he hasn’t had time to study the motion, but calls it “interesting on its face.” ‘VERY INTERESTING POINT’ That’s similar to what House Judiciary Committee Chairman James F. Martin says about the apparent conflict. “A very interesting point,” Martin says, adding that if there’s a conflict between the statute and Constitution, the Constitution controls. Martin, of the Martin Brothers firm, says the language comes from a 1924 statute enacted when Georgia changed its method of execution from hanging to electrocution. “It wasn’t a problem with the bill that passed” this year, he adds. Mears says the defense team ran across the particular language earlier this year when perusing the statutes. He says he had concluded that attacking the new death penalty legislation would require going through it line by line. “No one has looked at the minutiae,” he says, adding that past challenges have taken a broad approach such as arguing the death penalty constitutes cruel and unusual punishment. “I hate to say I told you so,” Mears says, but adds that he and other death penalty defense lawyers warned legislators that they should leave the law alone.

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