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Georgia’s electric chair will sit cold for 30 days following a temporary restraining order that Fulton County Superior Court Judge Wendy L. Shoob issued against the Department of Corrections Wednesday. The order temporarily bars the state from electrocuting any of the 133 inmates awaiting execution for crimes committed before May 1, 2000. Last year, the Legislature mandated lethal injection for those sentenced to death for crimes committed after that date. However, it retained death by electrocution for those sentenced to death for crimes committed before then. Some 40 ministers, priests and rabbis from local congregations filed a petition for mandamus Monday, asking the court to order the Department of Corrections to comply with the “cruel and unusual punishment” clause of the Georgia Constitution and the Eighth Amendment of the U.S. Constitution by barring the chair’s use. Adams v. Georgia Department of Corrections, No. 01CV35277 (Fult. Super. March 19, 2001). Their lawyers include Emmet J. Bondurant of Bondurant, Mixson & Elmore, who argued the petition Wednesday morning; C.B. Rogers of Rogers & Hardin; John A. Chandler of Sutherland, Asbill & Brennan; Ralph A. Knowles of Doffermyre, Shields, Canfield, Knowles & Devine; and Miles J. Alexander of Kilpatrick Stockton. Assistant Attorney General Christopher S. Brasher, who represented the state, argued that the plaintiffs were seeking mandamus to bar the Department of Corrections from complying with what state law orders them to do: execute by electrocution those condemned for crimes committed before May 1, 2000. Shoob, the presiding judge this week, declined to hear arguments on mandamus, but issued her restraining order until Judge Isaac Jenrette, who was assigned the case, can set a hearing date. “I cannot see any harm at all to the state” in granting the order, Shoob told the lawyers. The plaintiffs claimed “citizen standing” to bring the petition, referring to Georgia Code Section 9-6-24. The statute states, “Where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that a plaintiff is interested in having the laws executed and the duty in question enforced.” Shoob’s order granted a temporary reprieve to Jose Martinez High, 42, who was scheduled to die by electrocution sometime between March 27 and April 3 for the 1976 kidnapping and murder of an 11-year-old boy in Crawfordville. The state supreme court granted High’s lawyers’ request for a stay later Wednesday afternoon, with Justices Carley, Thompson and Hines dissenting. Though Bondurant was careful to remind the court that the plaintiffs did not bring their petition on High’s behalf, he noted that failure to grant a restraining order could result in High’s execution. Even a stay in High’s case would fail to provide his clients the relief they seek, Bondurant said. His clients have an interest in stopping the state from electrocuting anybody, he told Shoob. If someone doesn’t stop the state, he says, it will continue to seek electrocutions for those who qualify. “They [the state] want to keep throwing bodies over the wall and see if somebody can catch them before they hit the ground and die,” he said. Bondurant told the judge that although the Department of Corrections was operating under a state statute, the state constitution is a higher law. If a statute is unconstitutional, he said, the department’s obligation to comply with it vanishes. On March 6, he noted, the Georgia Supreme Court issued a stay of execution in the case of Ronald K. Spivey, until it “addresses whether death by electrocution violates the Eight Amendment prohibition against cruel and unusual punishment.” State v. Spivey, No. S01A0837 (Supreme Ct. Ga. March 6, 2001). Brasher told Shoob he “[took] issue with the entire premise of Mr. Bondurant’s argument.” The law actually compels the Department of Corrections to electrocute those condemned to die before May 1, 2000, he said, not to refuse to electrocute them. “I thought the law was pretty clear when the supreme court ruled a few weeks ago in the Spivey case,” Shoob interjected. “Why does the Department of Corrections go forward with this?” she asked of trying to electrocute people. “Because it would be violating its duty if it didn’t,” Brasher responded. Shoob should deny the request for a restraining order, Brasher argued, because there is no clear ruling, decision or law that says electrocution is unconstitutional. Mandamus, he said, can’t force the state to comply with a law that doesn’t exist. The plaintiffs, said Brasher, were asking the court to decide whether the state had a duty to cease electrocuting inmates, and then order the department to comply with it. “But it was brought to me and I’ve already ruled that electrocution is unconstitutional,” Shoob said. “I’m kind of in a fix here, aren’t I?” Shoob was referring to her ruling in Dawson v. State, No. Y11554 (Fult. Super. Feb. 2, 2001), in which she became the first Georgia judge to declare death by electrocution a cruel and unusual punishment. In that case Timothy Carl Dawson was sentenced to death for his role in the 1998 murders of three men at the Atlanta Hilton and Towers. Shoob’s ruling said that electrocution involves “physical violence indicative of inhumanity and barbarity.” However, her ruling applies only to her court. In any case, Shoob told Brasher, the mandamus issue wasn’t on the table. The only question she would decide, she said, was whether to set it down for a full hearing before another judge. At that time, each side could call witnesses and introduce evidence in support of their positions. After Brasher finished his argument, Shoob asked Bondurant to address the state’s contention that the Department of Corrections was operating under a statute. That statute may be declared unconstitutional, she said, but it hasn’t been yet. Bondurant responded that state officials have the duty first to obey the state constitution, a duty he called “clear and unambiguous.” “It is not an equivocal duty,” he said. “It is not a discretionary duty.” Since the legislation instituting lethal injection as the state’s means of execution passed, Bondurant said, the supreme court has not ruled on the constitutionality of the electric chair. The legislature’s action, he said, is evidence of changing societal values. Dawson’s lawyer Thomas M. West, who watched Wednesday’s arguments, says the state’s response to the petition stunned him. “The state’s defense should be shocking to every citizen,” he says, “They want to subject the citizens of this state to the horror of electrocution when it’s clear it’s unconstitutional.” The state supreme court’s future decisions in Spivey and Dawson loomed over the proceedings. Shoob and lawyers for both sides seemed to agree that the high court would resolve this issue regardless of what the trial court does. “I’m hoping the supreme court is going to rule on this matter and moot this case entirely,” Shoob said. After the hearing, Bondurant said he suspects this case will land in the supreme court eventually, whether the next judge to hear the case grants mandamus or not. A denial at the trial court level doesn’t frighten him, he said. “If you want to throw me on that briar patch, take it to the supreme court,” he said.

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