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Georgia Supreme Court justices chose a Savannah death penalty habeas corpus case to test whether use of the electric chair constitutes cruel and unusual punishment. The action comes amidst growing national debate on the death penalty. It was an odd choice. About 10 other cases have a complete evidentiary record on that issue, with three days of testimony from electricity experts, pain experts and prison officials. On the other hand, in Troy Anthony Davis’ case, the habeas judge only allowed defense lawyers to proffer, not admit into evidence, affidavits. Davis was convicted of killing a police officer in Savannah in 1989. While his may not be the ideal choice for a test case, the court decreed in February that it wanted to hear arguments on the electric chair as a means of execution. Defense lawyer Thomas H. Dunn, executive director of the Georgia Appellate Practice & Educational Resource Center, had just begun his presentation Monday when Justice George H. Carley wagged a finger at him. Would Dunn address the state’s motion to dismiss? Carley asked. Dunn promised he would, although it was the state’s lawyer who later addressed that issue. Dunn told the court that declaring electrocution cruel and unusual punishment would comport with the country’s “evolving standards of decency,” as well as those in Georgia. The Georgia Legislature’s recent passage of a lethal injection statute, instituting that method of execution for capital crimes committed after May 1, expresses the desire of Georgia citizens for “a death penalty system that works and is humane,” Dunn argued. But Senior Assistant Attorney General Susan V. Boleyn told the court that it couldn’t ignore the principles of habeas corpus litigation and the rules of appellate procedure. Boleyn argued that Davis’ claim on the constitutionality of the electric chair was procedurally barred from consideration and the court would have to violate its own rules to consider it. “This court is trying to review issues that your own case law prohibited the lower court from looking at,” she told the justices. Should the court decide to tackle the issue of electrocution anyway, Boleyn continued, the justices would be at a disadvantage compared to other courts that have reviewed the issue. That’s because no body of evidence has been developed through hearings in the lower court, she said. FOUR ISSUES The Georgia Supreme Court agreed to consider Davis’ habeas corpus petition days after the Georgia House voted on lethal injection in February. The court asked the parties to address four issues: whether Davis’ sentence was disproportionate to the penalty imposed in similar cases; whether his prior appellate counsel had a conflict of interest; whether his absence during certain court proceedings violated his rights; and finally, whether electrocution constitutes cruel and unusual punishment, in violation of the Eighth Amendment. Four justices accepted the appeal: Chief Justice Robert Benham, Presiding Justice Norman S. Fletcher, Justice Leah W. Sears and Justice Carol W. Hunstein. Justices George H. Carley, P. Harris Hines and Hugh P. Thompson dissented. Troy Davis’ appeal, however, is not the first time electrocution has been addressed by the court. In December 1997, the court ruled unanimously that the electric chair did not constitute cruel and unusual punishment. But Fletcher, in a concurrence joined by Benham, wrote that “Neither our concept of what is humane nor our concept of what is cruel and unusual punishment must remain locked in a vacuum.” Science, wrote Fletcher, “has caused us to rethink most everything from our views on ethics and morals to our concept of space. Perhaps it is also time that Georgia rethinks its method of execution.” DeYoung v. State, 268 Ga. 780 (1997). Fletcher’s words opened the door for defense lawyers to develop an evidentiary record on that issue, according to Multicounty Public Defender B. Michael Mears. Mears says that concurrence convinced Stephens County Superior Court Judge Robert Struble to conduct three days of hearings on the electric chair in the death penalty trial of “natural born killer” Christopher Smith. Struble also gave Mears money to hire expert witnesses in the case. In the end, Struble concluded that electrocution did not constitute cruel and unusual punishment. But the hearings helped create a complete evidentiary record, which included testimony from prison officials on execution protocol, evidence of every execution and autopsy, and testimony from numerous experts. That record has been admitted into evidence in about 10 other death penalty cases over the past two years, Mears says. Then, days after the U.S. Supreme Court agreed last fall to hear Florida Death Row inmate Anthony Braden Bryan’s arguments on the constitutionality of electrocution, Sears declined to affirm the sentence for another death row defendant. In Wilson v. State, 271 Ga. 811, Sears wrote that a growing body of evidence-including botched executions in 1997 and 1999 in Florida as well as in 1996 in Georgia-indicated that electrocution involves undue pain, torture and mutilation and that it “may offend society’s evolving sense of decency.” She urged the court to wait on the U.S. Supreme Court’s decision, adding that Georgia had never undertaken its own analysis. “I believe that it is time for this Court to cease its cursory review of Eighth Amendment claims in capital cases and to confront head-on the issue,” she wrote. Since that Nov. 1 dissent, Florida lawmakers approved lethal injection as that state’s chief method of execution, although inmates still may choose electrocution. That legislation, in turn, meant that Florida defendant Bryan’s appeal to the U.S. Supreme Court was moot, prompting that court to decline to stay Bryan’s death sentence. Georgia’s legislature followed that of Florida, enacting lethal injection as the method of execution for capital crimes occurring after May 1. The new law also has a savings clause that provides that if either the U.S. Supreme Court or Georgia’s high court declares electrocution unconstitutional, Georgia’s sole means of execution will be lethal injection. At this week’s arguments, Dunn raised the electrocution issue with just 10 minutes out of his allotted 30 remaining for argument. He called on the justices to declare electrocution unconstitutional, adding that evidence was mounting that it involved the “gratuitous infliction of suffering, degradation and mutilation.” What, asked Benham, “are we to make of the legislation on lethal injection?” The new law, Dunn said, is a clear indication that, as the rest of the country abandons electrocution, Georgia’s standards of decency are evolving toward recognizing a more humane method of execution. THE CONSEQUENCES? Sears had a more practical question: What are the consequences if the court declares electrocution cruel and unusual punishment? “That means executions in this case and every other case would be by lethal injection,” Dunn said. He added that no death row inmate has obtained relief by claiming a subsequent change in the method of execution violated his rights. What should we look to as evidence of evolving standards of decency? Benham asked. Legislative changes around the country are the most telling evidence, Dunn said. Currently, just three states — Georgia, Alabama and Nebraska — still provide for electrocution. Boleyn, however, argued that the challenge to the electric chair was procedurally barred — it had not been raised in a timely manner. And, she told the justices, they had little evidence upon which to base a finding about Georgia’s electrocution protocol or the operation of the state’s electric chair. In Florida, the Supreme Court reviewed eight days of testimony from impartial witnesses about the electric chair, Boleyn said. But in this case, the court would have only 20 proffered affidavits, none admitted into evidence. Many of the affidavits, she told the court, were from defense lawyers who had witnessed their client’s executions, or who had witnessed botched executions. Georgia’s system should be examined, she added, rather than borrowing evidence from other jurisdictions.

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