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Don’t rush to judge the Georgia Supreme Court. Although it has stayed the electrocution of convicted killer Alexander Williams, the court’s action is not an indication of how it will resolve the capital punishment issues it now confronts. “On the subject of the death penalty, you can throw the crystal ball out with regard to this supreme court,” says Multi-County Public Defender B. Michael Mears. The court is always looking to pass the buck to avoid political hot water, he says. Atlanta criminal law attorney Alan J. Baverman, who has argued habeas cases before the Georgia Supreme Court, takes the opposite view. He says that if there is a chance for relief “this is the supreme court that would do it.” The court is tired of shifting to the federal court the burden of looking at cases closely, he says. “The court does not sidestep controversial and unpopular cases and decisions.” University of Georgia law professor Donald E. Wilkes Jr. says there is a national trend of state court judges tackling issues they once passed on to federal courts. The Anti-Terrorism and Effective Death Penalty Act of 1996, signed into law by President Clinton, substantially reduces the likelihood that state prisoners sentenced to death will get habeas relief in federal court, he says. Differing viewpoints characterize much of the analysis of today’s Georgia Supreme Court. Depending on whom you ask, the court either cows to political pressure or stands tall. It is either very conservative or reflects a liberal shift. Two days ago, the Georgia high court indefinitely stayed Williams’ execution, a sentence imposed for robbing, raping and shooting to death a 16-year-old Florida girl nearly 15 years ago in Augusta. The stay should last at least until the court resolves the pending Troy Davis case, which addresses whether electrocution is cruel and unusual punishment, violating the 8th Amendment of the U.S. Constitution. Whether Williams escapes his death sentence might not be decided for months or even years. Based on the granting of the stay, and a reading of Justice George H. Carley’s dissent, it appears the majority does not want to act on Williams’ case until it issues a decision in the Davis case, says Mears. The 5-2 concurring decision to stay the execution reflects the range of attitudes of the Georgia high court justices when faced with death penalty issues. It is difficult to classify this court, which “doesn’t march in lock-step with one another,” says Baverman. They make decisions on a case-by-case basis, particularly in this area of the law, he says. At the same time, the judges do generally fall into three camps. Court observers consider Robert Benham, Leah W. Sears and Norman H. Fletcher to be more liberal; Carol W. Hunstein and Hugh P. Thompson as moderate; and Carley and P. Harris Hines as conservative. Even Mears, who characterizes the court generally as “very conservative,” concedes that it has “two on the right, three on the left, and two in the middle.” This composition has resulted in many 4-3 decisions. Often, Justices Benham, Sears and Fletcher are pitted against the majority, as when the court has ruled that capital convicts do not have the right to representation by state-funded counsel during habeas corpus proceedings. Another decision, which split the same way, upheld the Augusta, Ga., circuit’s procedure for assigning death penalty cases to judges. Other times, Thompson or Hunstein swing left to form a majority, as in the decision to accept the Davis appeal; that was a 4-3 vote with Benham, Fletcher, Sears and Hunstein in the majority and Carley, Thompson and Hines dissenting. FAMILIAR LINES The decision to stay Williams’ execution broke down along these familiar lines. Benham, Fletcher and Sears concurred; Fletcher and Hunstein concurred specially; and Carley and Hines dissented. The concurring majority gave no reason for their decision to stay the execution. Benham and Sears have indicated previously they believe execution by electrocution constitutes cruel and unusual punishment, and always vote accordingly. Fletcher has not stated this position outright but often has joined Benham and Sears to side with those convicted of capital crimes. Hines, joined by Hunstein, wrote in his special concurrence that he voted to stay because the Davis case is pending. Hunstein and Hines “could very well be the swing votes” on the issue of whether electrocution is constitutional, Mears says. But he points out that their decision to stay does not indicate whether they will swing to the left or to the right. Carley, joined by Thompson, dissented to the stay, writing, “The petitioner raped and murdered the 16-year-old victim. … All aspects of this case have been reviewed and re-reviewed.” Even with a well-defined picture of the composition of the Georgia Supreme Court, experts are unwilling to predict the outcome of this case because, Baverman says, the issue of whether electrocution is cruel and unusual is not really a legal argument. Instead, it “goes to the moral sense of each individual judge.” WELL-FRAMED ISSUES Much of the media attention in the Williams case has focused on his age when he committed the crime — weeks shy of 18 — and his schizophrenia. These factors have drawn national attention from child advocacy and mental health groups, many of which have signed on as amici curiae in the case. On Tuesday the amici, represented by John R. “Jack” Martin of the Georgia Association of Criminal Defense Lawyers, filed a brief in support of Williams. It argued, among other things, that the cognitive development, judgment and character of adolescents are still forming. But Mears is doubtful these arguments will be factors in the court’s decision. “I wish I could say otherwise, but I don’t think so,” he says. The United States Supreme Court has ruled that states may put to death those 16 years of age and higher, as well as those with mental illness. Instead, the issue before the court in the Williams case is pretty well framed, says Mears. They are going to look at the constitutionality of electrocution. The court also may wrestle with issues of equal protection, he says. The court could find that electrocution is not legally cruel and unusual, but that those sentenced to die in that manner are being treated differently, for no good reason, than those set to die by lethal injection. MORE DELAYS AHEAD? Since Georgia has not set up protocols for lethal injection, that would delay Williams’ case, Mears says. If the court bans the electric chair, it could also spawn fresh appeals from death row inmates. This year the Georgia legislature changed the state’s method of execution from electrocution to lethal injection. However, as it stands, those persons who committed their crimes on or before May 1 will still face electrocution. All other states that have switched from electrocution to lethal injection have given the condemned their choice of the two forms of capital punishment. As it stands, the Davis record is before the court, and justices are in the process of drafting individual opinions. Mears says it’s possible, but not probable, that the attorney general will try to have the stay lifted. For now, he says, those following this case will just have to “sit back, take a deep breath, and wait for what happens in Davis.”

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