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Fulton County, Ga., prosecutors rejected advice from the state attorney general and disregarded a warning from the judge when they decided not to put up evidence defending the constitutionality of Georgia’s electric chair. Now, they apparently wish they had presented a more rigorous case in support of carrying out the death penalty through electrocution. Earlier this month, Fulton County Superior Court Judge Wendy L. Shoob became the first trial court judge in the state and one of only a handful in the country to declare the electric chair a “cruel and unusual” punishment. Shoob made her Jan. 11 ruling after examining hundreds of pages of documents, affidavits, audiotapes and autopsy reports submitted by defense lawyers for accused killer Timothy Carl Dawson. But the judge had no evidence to consider from the state, despite her offer to give prosecutors more time. Nor did Fulton prosecutors object to the admissibility of any of the defense’s evidence. Senior Assistant District Attorney Peggy A. Katz told Shoob, according to a transcript, that her office would rely on legal precedent — the fact that the Georgia Supreme Court had repeatedly upheld the constitutionality of electrocution — and would not put up evidence on that issue. Katz did oppose the defense motion to declare the electric chair unconstitutional. Now Fulton prosecutors want Shoob to reconsider her ruling, arguing that it is contrary to supreme court pronouncements. Their motion for reconsideration argues that they had thought “no further opposition was necessary to serve as the basis for this court’s denial of this standard motion.” They also want Shoob to reopen the record and let them enter evidence. Attorney General Thurbert E. Baker’s Office and the District Attorney’s Association have joined in that motion, filing an amicus curiae brief and urging Shoob to reopen the evidence. A lengthy footnote in that amicus brief says the attorney general’s office urged Fulton prosecutors to take a different, more aggressive approach to the issue than Katz took in pretrial hearings. “[T]he state should both submit its own evidence on the issue of the constitutionality of execution by electrocution and attack the validity and admissibility of the evidence presented by the defense,” the brief says. That is exactly what the Fulton District Attorney’s office was told, “repeatedly and in no uncertain terms,” the brief stated. DID HOWARD, BAKER STAFFS CONFER? Fulton District Attorney Paul L. Howard Jr. says he’s not aware of whether his office talked with Baker’s office prior to Shoob’s ruling, so he couldn’t comment. Katz was out of town and unavailable to clarify matters, Howard says, adding that he would have to talk with Baker’s office. His office did take the issue seriously, the district attorney says, adding that it relied on the Georgia Supreme Court’s repeated rulings upholding the constitutionality of the electric chair. Even so, Howard says, if Dawson is sentenced to die, Georgia law provides an alternate mechanism for execution. The law provides that if the Georgia Supreme Court or the U.S. Supreme Court declares electrocution unconstitutional, lethal injection will become Georgia’s method of execution for all on Death Row. A casual observer might say, “What’s the angle?” Howard says. MAN CHARGED IN THREE KILLINGS Dawson is charged with the murders of three men — Phillip Dover, Gerrold Shropshire and Ronald Gutkowski — at the Atlanta Hilton and Towers in 1998. Dawson’s attorneys, Thomas B. West and Robert H. Citronberg, filed a motion asking Shoob to declare the electric chair a cruel and unusual punishment that violates the 8th Amendment of the U.S. Constitution. The motion is standard in death penalty cases. Hearings on that issue in the Dawson case began Nov. 3 as both sides awaited what many thought would be a definitive decision on electrocution from the Georgia Supreme Court. The court had, only days earlier, issued a statement of sorts on the matter. In Esposito v. State, 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 indicated that the court wanted to tackle the issue, were it given sufficient evidence. In a special concurrence, however, Justice George H. Carley, joined by two other justices, noted that the court had “repeatedly and recently” found electrocution constitutional. In the Dawson pretrial hearings just days later, Shoob questioned lawyers about what would happen if the state supreme court found the electric chair unconstitutional. Katz responded that those under a death sentence would be subject to lethal injection. She added that the sentencing verdict form in the recent Fulton case of Gregory P. Lawler had been changed to reflect that possibility. Lawler was sentenced to die for the murder of Atlanta police officer John Sowa. Katz said Baker’s office, out of caution, advised her to do so. West and Citronberg argued that were the electric chair struck down, Dawson should get a life sentence. Katz called that scenario “ridiculous” and said lethal injection should apply. Hearings before Shoob continued on Nov. 15. That day, Katz stipulated to the admission of the defense’s evidence. Citronberg argued the issue for the defense. Shoob had a question: What would happen if she found electrocution a cruel and unusual punishment? Citronberg said he would likely argue that lethal injection would not apply. Katz said such a ruling would not stop Dawson’s case from moving forward to trial. “In other words, in order for your ruling to have any force whatsoever, we couldn’t go up to the Georgia Supreme Court unless he actually was convicted and sentenced to death.” Dawson, Katz added, would still be under a death sentence were the state supreme court to void electrocution. “So it doesn’t really matter to the state how I rule on this issue?” Shoob asked. “No, it does. It matters very much,” Katz said. Should Shoob decide to hold an evidentiary hearing, she added, the state would present evidence. Shoob said she intended to review the defense’s evidence. If prosecutors planned to introduce some of their own, she added, “I think today is the day.” She added that she had had no idea that the state had had any intention of submitting evidence. Katz told the judge that “normally what happens is the court will take the evidence, include it in the proffer, and deny the motion. That’s the way it’s gone. But if you were in a position … “ Shoob broke in. “I would never count my chickens before they hatch.” Katz said if Shoob decided to hold an evidentiary hearing, that would change the picture. Shoob said she also would consider any state’s evidence. “You can have an evidentiary hearing, or you can submit it in the same way that the defense has submitted.” Katz said she needed to consult the attorney general’s office before giving Shoob an idea of what the state would present. Shoob said she would schedule an evidentiary hearing if needed. “Yes, I mean, assuming you’ve already made that decision,” Katz said. “I don’t really understand why you would expect that Superior Court judges would just rubber-stamp this issue that is so important,” Shoob said. “I’m going to hear this. I’m going to make a ruling,” she insisted. “That’s all I mean,” Katz said. “I can’t believe that it is unusual or a surprise,” Shoob added. Two days later, on Nov. 17, Katz appeared before Shoob again to inform her: “We don’t intend to submit any evidence on the issue of whether electrocution is cruel and unusual punishment. We’re going to rely instead on the binding precedent of the Georgia Supreme Court and the United States Supreme Court.” The amicus brief from Baker’s office says that while the transcript might give the impression his office concurred in Katz’ decision, “this was most emphatically not the case.”

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