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The American Bar Association closed its death penalty conference here last week by calling for state and federal moratoriums on the punishment. While there doesn’t seem to be support in the Georgia Legislature for a ban, the Georgia Supreme Court remains just one vote shy of instituting a “virtual” moratorium. “Look at the current split on the Georgia Supreme Court,” says Atlanta defense attorney Charles H. Frier, a former prosecutor who now handles habeas appeals for defendants. “We have a pretty solid block of three judges that have been dissenting in death penalty cases,” he says. “It’s not that far-fetched to think that one more justice might slide over, turn the minority to a majority, and do it at that level.” Chief Justice Robert Benham, Presiding Justice Norman S. Fletcher and Justice Leah Sears have shown consistent skepticism about the death penalty in their decisions. Of course, a ban could come from the legislature, Frier says, “but that’s a much more remote possibility.” Frier, who prides himself on having been “on both sides,” is a former assistant district attorney who served more than eight years with the Prosecuting Attorneys’ Council before entering private practice. “The court, of course, can’t declare a moratorium,” says Stephen B. Bright, director of Atlanta’s Southern Center for Human Rights. It has to vote against the death penalty case by case, but it looks as though a “virtual moratorium” is already in place, he says. “I am personally not in favor of a moratorium,” says Fulton County District Attorney Paul L. Howard Jr. “I don’t think the Georgia system has been shown to be so defective that we need to act to stop executions.” But, Howard says, Georgia ought to look at the documented errors presented by its death penalty cases over the past several years and devise ways to improve the process. Georgia is one of 38 states with a death penalty on the books, and is among 31 states that have carried out the punishment since 1976, when the U. S. Supreme Court ruled capital punishment constitutional. But in August, Georgia’s highest court stayed the execution of Alexander Williams, found guilty of raping, robbing and shooting to death a 16-year-old girl. The stay is likely to remain in place until the court resolves whether capital punishment is cruel and unusual, which it will likely do in the pending Troy Anthony Davis case. Davis was convicted of killing a police officer in Savannah in 1989 and sentenced to death. A decision on Davis’ appeal must come by late November, when the court’s fall term ends. Bright, who served as a panelist during the ABA conference at the Carter Center, discussed Williams’ case as an example of what he sees as a flawed death penalty system in this state and elsewhere. Defense lawyers and other opponents of the death penalty comprised most of those attending the invitation-only session. Georgia Supreme Court Chief Justice Robert Benham was among the audience members. Williams was “17 years old at the time of the crime — a child — profoundly mentally ill, out of touch with reality, and represented by one of the worst — although it’s such a fast track it’s hard to tell — lawyers to be appointed in capital cases,” Bright says. Bright also cited Georgia’s lack of a public defender system as further evidence that a moratorium is needed. “States like Georgia, Mississippi, Alabama and Texas steadfastly refuse to establish statewide defender offices where people specialize in defending cases, just as people on the other side of the aisle specialize in prosecuting them,” he says. Georgia’s system, which provides that judges appoint death penalty lawyers, is deeply flawed, Bright says. “You can make more as a paralegal in a bankruptcy case here in Atlanta than you can make if you are appointed to defend a capital case as a lawyer,” he says. Howard admits that ineffective assistance of counsel issues must be addressed but says a moratorium isn’t necessary. He says he’s working with the Indigent Defense Council and the public defender “to make sure that funding is increased.” Also, he says, the Georgia Supreme Court has recently enacted new policies setting stricter qualifications for lawyers eligible to represent defendants in capital cases. Howard hopes judges will follow those stricter standards. RACE BIAS IN GEORGIA? Speakers at the ABA conference also cited racial discrimination in the application of the death penalty as a justification for a ban on executions. “There is overwhelming evidence of racial discrimination in the way the death penalty is applied,” says New York University School of Law professor Anthony G. Amsterdam. Studies have shown this pattern reflected in the decisions of prosecutors and juries, Amsterdam says. According to statistics from the Death Penalty Information Center, from 1976 to October 4, 2000, there have been 667 executions nationally. Whites accounted for 56 percent of those executed, 36 percent were black, seven percent were Hispanic, and two percent were members of other ethnic groups. In almost all capital cases — 83 percent — the victims are white, but nationally just 50 percent of murder victims are white. University of Iowa College of Law Professor David Baldus, who has studied the death penalty system for more than 20 years, says he conducted a study of Georgia in the 1980s. It “showed that people who killed whites here in Georgia during the time period of 1973 to 1980 were at significantly higher rate of getting the death penalty than people who killed blacks,” he says. The study’s outcome might be different were it conducted today, Baldus says. However, definitive numbers for the last decade aren’t available, he says. “I think we have a new generation of prosecutors here that are much more sensitive to it [discrimination] now,” Baldus adds. In a 1998 report to the ABA, Baldus stated that in 96 percent of the states where there have been reviews of race and the death penalty, there was a pattern of race-of-victim discrimination, race-of-defendant discrimination or both. Howard recognizes that the issue of discrimination in the application of the death penalty is a difficult one. “Obviously when you look at this country it’s very hard not to say that discrimination continues,” he says. “It is very difficult on the other hand to simply look at the numbers and to say they suggest racial discrimination because in many of the jurisdictions there are simply not a lot of whites who are involved in homicides.” MOVEMENT WILL GAIN STRENGTH The latest Gallup Poll, taken in February 2000, shows that 66 percent of Americans favor the death penalty. But despite general support for the punishment, it’s likely that in coming months the anti-death penalty movement will gain momentum. The ABA closed its conference by calling for a national coalition to implement a state and federal moratorium on the death penalty. Seven state and local bar associations have already adopted death penalty moratorium proposals, and three state bar associations have called for a review of the death penalty system. Since January of this year numerous state and local resolutions supporting moratoriums on legal executions have been adopted, including a resolution adopted on March 20 by the City of Atlanta. In Georgia, however, the real effect of the ABA’s call for a moratorium is to return to a more careful scrutiny of death penalty cases, says Bright.

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