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A trial court judge has declared Georgia’s electric chair a “cruel and unusual punishment” that violates the Georgia and U.S. Constitutions. In a Thursday order that recited grisly details of executions, Fulton County, Ga., Superior Court Judge Wendy L. Shoob concluded that electrocution inherently “involves lingering death, bodily mutilation and distortion, and physical violence indicative of inhumanity and barbarity.” Shoob, appointed to the Superior Court in 1996 after four years on the Fulton State Court bench, wrote that Georgia’s use of the electric chair “offends the evolving standards of decency that mark the progress of a maturing society.” She noted that no other civilized country uses electrocution, and all but three states-Georgia, Alabama and Nebraska-have abolished it. Last year, the Georgia Legislature passed a law to provide for lethal injection as the method of execution for defendants sentenced to die for crimes committed after May 1, 2000. But some 130 inmates on Death Row still face the electric chair. The new law, passed last February, provides that if the electric chair is declared unconstitutional by the Georgia Supreme Court, lethal injection will become the sole method of execution. The Legislature didn’t make lethal injection retroactive for fear that legal challenges would allow some inmates to escape execution all together. Shoob is the first trial court judge in Georgia to rule electrocution unconstitutional. Nationally, such trial court rulings are rare. Georgia’s trial judges have routinely denied motions to declare electrocution unconstitutional, and many judges have refused to hear evidence on that point. Shoob’s order doesn’t bind other trial court judges, but it could provide the impetus for the Georgia Supreme Court to address the issue. The court has indicated it might be willing to take on the issue if presented with the appropriate case. The ruling granted a pretrial motion brought by defense lawyers for Timothy Carl Dawson, charged in the 1998 murders of three men — Phillip Dover, Gerrold Shropshire and Ronald Gutkowski — at the Atlanta Hilton and Towers. The three were shot repeatedly in the head in what police said was a robbery. Prosecutors are seeking the death penalty against Dawson, who is scheduled for trial March 23. DEFENSE: RULING ‘GUTSY’ Atlanta Defense lawyer Thomas M. West, who is handling the case with Robert H. Citronberg, calls Shoob’s ruling courageous and “gutsy.” The Fulton judge, he says, “does not fall far from the tree, the tree being her father.” Shoob is the daughter of U.S. District Court Senior Judge Marvin H. Shoob. Citronberg was out of town and couldn’t be reached. West and Citronberg are both sole practitioners with considerable death penalty experience. West says he and Citronberg have handled seven death penalty cases together, including representing Wayne Coleman in Georgia’s notorious Alday murders. Atlanta attorney and death penalty opponent B. Michael Mears says of Thursday’s ruling: “It’s a welcome relief to see a judge that has this kind of courage.” He adds that it affirms the belief of many “that the time has come to put the electric chair aside. I hope other judges will follow and put this archaic method of punishment into the dustbin of history.” HOWARD DISAGREES But Fulton District Attorney Paul L. Howard Jr. says he understands Shoob does not plan to send her order up on appeal before trial. Howard says he disagrees with Shoob’s finding and will ask her to reconsider. He says he believes the Georgia Supreme Court will ultimately find the electric chair constitutional. But, he adds, “Our major concern is that [Dawson] be put to death. By what method, we don’t care.” Shoob’s ruling would be “of much more significance,” Howard says, if Georgia law didn’t provide for alternate means of execution. Shoob hasn’t ruled on whether the issue should be certified for interim review, which would allow the ruling to go directly to the Georgia Supreme Court before trial. Thursday’s decision came after two days of hearings in November during which Citronberg and West presented voluminous evidence on the electric chair and executions, including autopsy reports and audiotapes of executions. Grisly Details Cited Shoob cited grisly details from a number of executions in Georgia and elsewhere in her order. Fulton prosecutors argued against allowing the evidence to be introduced, but brought no evidence of their own to oppose that of the defense. West says Mears and Thomas H. Dunn, executive director of the Georgia Resource Center, which handles appellate death penalty cases, should be credited with compiling the evidence that went to Shoob on the electric chair. The record before Shoob is the same record presented by Mears and Dunn to the Georgia Supreme Court in the case of Troy Anthony Davis. In Davis v. Turpin, 2000 Ga. LEXIS 858, the Georgia Supreme Court declined to address the constitutionality of the electric chair because of procedural barriers. That record was originally developed during extensive hearings in yet another case, Christopher Matthew Smith, Georgia’s self-proclaimed “Natural Born Killer.” Stephens County Superior Court Judge Robert B. Struble allowed defense lawyers in Smith’s case to conduct a full evidentiary hearing on the death penalty. According to Mears, Struble was the first Georgia judge to grant the defense both the time and funds to present such evidence. Struble eventually found the electric chair constitutional, but the jury later sentenced Smith to life, so the electrocution issue in his case became moot. Mears says Shoob’s ruling is “the culmination of a lot of work over a lot of time, a community effort, so to speak,” by the death penalty defense bar. Dunn says Shoob “did the right thing” and her order may well “give the Georgia Supreme Court the case they were looking for.” The justices, he says, have been struggling with the issue of late. In 1999, Justice Leah Ward Sears, writing a dissent in the case of Wilson v. State, 271 Ga. 811, urged a stay of all executions while the U.S. Supreme Court considered a challenge to the electric chair. She noted “a growing body of evidence indicates that electrocution causes a lingering death and undue violence, torture, and mutilation.” She added that “It’s time to examine whether Georgia’s current method of enforcing the death penalty and its attending consequences are compatible with the dignity, morality, and decency of society’s enlightened consciousness, and is reflective of a humane system of justice.” Since that time, Sears has cited her writings in Wilson in dissents to death sentences. THE RIGHT CASE? Last year, the Georgia Supreme Court had trouble finding the right case to address the issue. The justices stayed the impending execution of one Death Row inmate, Augustus Williams, while the Davis challenge to the electric chair was pending. Still, it wasn’t the Davis case, but another that the court chose to make a statement of sorts on the issue. In Esposito v. State, 2000 GA. LEXIS 821, Presiding Justice Norman S. Fletcher, writing for a four-judge majority, said the electric chair in Georgia “presents a troubling moral and legal issue.” Fletcher noted that some justices had “grave concerns about the humaneness of electrocution” and that other jurists were concerned that Georgia’s retention of the chair as the sole execution method for certain prisoners, presented problems. Fletcher indicated that the court wanted to tackle the issue, writing that the justices, given sufficient evidence, “would not be unwilling to confront these difficult questions if necessary, despite our belief that the legislative and executive branches would be better positioned to assume continued leadership in this field.” In her order, Shoob noted that the state Supreme Court had not “fully and directly addressed the Constitutional issues in some time.” In the case before her, however, she wrote, “the issue has been timely raised and this Court has carefully considered the unrebutted evidence submitted by Defendant Timothy Dawson. It is now the holding of this Court that death by electrocution in Georgia is unconstitutional.” Shoob’s record indicates she doesn’t shy away from controversial rulings. In 1999, she overturned a statewide ban on health insurance coverage for domestic partners in a case involving Atlanta City Councilwoman Cathy Woolard’s coverage of her live-in partner. Shoob, a former Fulton assistant district attorney, also took considerable heat from Fulton prosecutors and victims’ groups in 1999 for voiding a jury’s guilty verdicts in the case of two brothers accused of using a date rape drug to sexually assault a Georgia State University student. She ordered a new trial for both defendants after finding numerous errors had occurred in the first trial. “It may be beyond the legal capacity of the legal system to conduct a perfect trial but principles of justice demand a trial free of significant error,” she wrote at the time. Both defendants were later acquitted. And, earlier this month, Shoob announced that she would dismiss 12 aging felony cases from her docket if Fulton prosecutors didn’t commit to prosecuting the cases.

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