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Georgia’s lawyers will have a simple but strong argument when they appear before the state supreme court next month to defend the use of the electric chair: the law. “We’ll approach the consolidated cases and arguments from the standpoint that the law is what the law is,” says Attorney General Thurbert E. Baker. “We’re going to fight for it because the Legislature has told us it is the law,” he says, sidestepping the opportunity to give his personal views on the issue. His office doesn’t have “the luxury of deciding what is good law and what is bad law,” Baker says. “I don’t think you’d want an attorney general who made personal decisions about what is good and bad,” he adds, calling that path a slippery slope. Still, Baker says he hopes the court will at last resolve the challenges to the chair, a debate that he says has consumed “a lot of time from a lot of people all over the state.” Oral arguments in two consolidated death penalty cases on the constitutionality of Georgia’s use of electrocution are scheduled before the high court July 9. YEARS OF DEBATE The historic arguments are the culmination of several years of intense debate, beginning when Presiding Justice Norman S. Fletcher wrote, in a concurrence joined by Chief Justice Robert Benham, “Perhaps it is also time that Georgia rethinks its method of execution.” DeYoung v. State, 268 Ga. 780 (1997). Last month, the justices finally indicated they had found the right case to address the issue: the appeal of accused killer Timothy Carl Dawson, charged in the 1998 murders and robbery of three men at the Atlanta Hilton and Towers. In that case, Fulton Superior Court Judge Wendy L. Shoob became the first jurist in Georgia to declare that electrocution violated constitutional prohibitions against cruel and unusual punishment. Baker’s office has won a minor victory so far, convincing the justices to consolidate Dawson’s case with a second appeal, that of convicted killer Carzell Moore. Unlike Dawson’s case, where Fulton prosecutors offered no evidence in defense of electrocution, the Moore case offers a full and adversarial evidentiary record developed during a two-day hearing earlier this year. It includes eyewitness accounts of executions, autopsy reports and the testimony of scientific experts. “If the court is going to consider an issue as important as this is,” Baker says, “it ought to have a full record.” Were the justices to decide the constitutional issue on only the defense’s evidence, he adds, they would be second-guessed continually. Lawyers for both sides will have to address such issues as whether electrocution involves torture, lingering death, mutilation or unnecessary pain, and whether it offends the evolving standards of decency of society. “The whole vein of discussion goes to the question of the evolving standards of decency,” Baker says. While opponents of the electric chair emphasize that only two states — Alabama and Nebraska — retain electrocution as their sole means of execution, Baker points out that 11 states retain the electric chair as an option along with lethal injection. But context is also important. “What is happening in the rest of the world is not dispositive of the standard of decency in Georgia,” he says. “It always is going to get back to Georgia.” DOES LEGISLATURE REFLECT VALUES? The “best and highest” evidence of Georgia’s values and standards of decency are its legislative enactments, Baker, a former legislator, contends. The Legislature, Baker says, “had the opportunity to deal with the question,” to do away with electrocution altogether if they chose. “They took that opportunity and they did what they did. I think that’s the crux.” The Georgia General Assembly last year passed a measure instituting lethal injection as the means of punishment for those sentenced to die for crimes committed after May 1, 2000, while preserving the electric chair for those sentenced to die for crimes committed before the law took effect. The statute also provides that if the U.S. Supreme Court or the Georgia Supreme Court declares electrocution unconstitutional, lethal injection will be the sole means of execution. Some 133 people are still subject to electrocution in Georgia. “That’s pretty clear to me. If they left [the electric chair] intact, they meant to leave it intact,” Baker insists. The biggest oversight in the current debate, he says, are the victims. “We spend all our time talking about the method of execution in Georgia, but not the method of execution these convicted killers used.” While the court considers the issue, the business of prosecuting death penalty cases continues. Baker says his office is urging local prosecutors to move their cases forward. “There’s no moratorium,” he says.

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