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Ronald Keith Spivey is scheduled to die in Georgia’s electric chair at 7 p.m. next Tuesday. Once again, all eyes are on the Georgia Supreme Court. Justices have been asked to stay the execution, and court watchers will look for clues on whether the court will strike electrocution for violating the Constitution’s prohibition against cruel and unusual punishment. “If they deny the stay and allow Ron Spivey to be executed in the electric chair, how can they come back and say electrocution is cruel and unusual?” asks B. Michael Mears of the Multi-County Public Defender’s Office in Atlanta. Mears says that at least three justices — Chief Justice Robert Benham, Presiding Justice Norman S. Fletcher and Justice Leah Sears — have said the time has come to consider electrocution’s constitutionality. Two lower courts have now made that determination, he says. Mears won’t predict which of the four remaining justices could be a swing vote in a stay. “Picking a swing vote is like handicapping races at the Kentucky Derby. Don’t put a lot of money on it,” he says. The decision isn’t just about Spivey but about the 80-90 trials pending across the state that involve allegations of capital crimes, Mears says. There are also 134 other Death Row inmates in Georgia, all of whom are subject to electrocution, he says. The court has indicated it will consider whether electrocution is constitutional when it gets the right case. Spivey’s lawyers argue that the court should postpone his execution at least until the constitutional issue is resolved. Spivey, 61, has been in prison for a Columbus crime spree in December 1976 that left two dead, including an off-duty police officer. He’s already lost bids for writs of habeas corpus at the state and federal levels. On Monday, Spivey’s lawyers asked Muscogee County Superior Court Chief Judge Kenneth B. Followill to stay the execution. Followill denied that request late Wednesday. Spivey’s lawyer, Thomas H. Dunn of the Georgia Appellate Practice and Educational Resource Center in Atlanta, has appealed to the Georgia Supreme Court. Dunn says the main issue now is whether courts in Georgia are going to allow someone to be executed when the constitutionality of electrocution is being questioned. “I think the strongest argument we have is, stay this execution because of the two orders that were handed down last month [in Fulton County Superior Court],” Dunn says. He says he’s also proffered expert testimony that Spivey’s “very large” size makes the possibility of a botched electrocution more likely. But Columbus District Attorney John Gray Conger says there’s no reason for a stay. “He didn’t ask for a hearing in the Superior Court of Muscogee on the issue of whether electrocution is cruel and unusual,” he says. Last August, five of seven supreme court justices were willing to stay the execution of Alexander Williams because another case challenging electrocution, Davis v. Turpin, was before the court. Two of the five justices in the majority — Carol W. Hunstein and P. Harris Hines — wrote separately to explain they were granting the stay because of the pending Davis case. But since that time, the court decided the Davis case on other grounds, though the stay in Williams remains in place. Mears says that another death penalty case before the court also raises similar constitutional issues. That case, which involves convicted murderer Daniel Colwell, is complex because it raises other issues. Colwell, who prosecutors concede is severely mentally ill, killed two people in a Wal-Mart parking lot in 1996 because he wanted to be sentenced to death. In addition, the justices likely are aware that another case will be before them soon. On Jan. 11, Fulton County Superior Court Judge Wendy L. Shoob declared electrocution unconstitutional in State v. Dawson. According to Dunn, Shoob informed all the parties that she will certify the ruling for appeal. She hasn’t done so yet because the parties are finishing pre-trial motions this week, he says. Shoob’s order clearly laid out the objections to electrocution. “[T]he Court finds that electrocution involves lingering death, bodily mutilation and distortion, and physical violence indicative of inhumanity and barbarity,” Shoob wrote. Weeks after Shoob’s historic ruling, a second Fulton County judge, Thelma Wyatt Cummings Moore, jumped on the bandwagon. On Feb. 8, 2001, Moore issued an order in Ferrell v. Head No. 95-v-393 rejecting electrocution and citing extensive evidence that demonstrates “the monstrosity of death by electrocutions.” The lower court rulings come amid a national shift from electrocution to lethal injection. Presently, just two other states, Alabama and Nebraska, use electrocution exclusively. In 1999, the Georgia General Assembly enacted its own lethal injection statute. But, to avert claims by the condemned that they are being subjected to a retroactive law, the Legislature only provided lethal injection for capital crimes committed after May 1, 2000. That leaves Georgia’s 135 Death Row inmates, including Spivey, subject exclusively to electrocution. The issues that the court will have to confront in Spivey’s bid for a stay are embodied in the motion before Followill. Borrowing language from the high court’s decision in Esposito v. State, No. S00P0654 (Sup. Ct. Ga. October 30, 2000) Dunn argues that continued use of the electric chair presents a “troubling moral and legal issue.” In that case, decided Oct. 30, the court affirmed the death sentence of John Anthony Esposito, concluding that “there has not been a sufficient proffer of evidence to compel a present finding that Georgia’s practice of execution by electrocution is cruel and unusual punishment.” Though all the justices affirmed Esposito’s adjudication of guilt, Justice Leah W. Sears, joined by Chief Justice Robert Benham, dissented to the majority’s affirming the death penalty to the extent that it requires death by electrocution. Presiding Justice Norman S. Fletcher, who wrote for the majority, included an extensive paragraph about electrocution, and seemingly called upon the Legislature to take some action: “Many state legislatures have abandoned electrocution altogether or have allowed persons previously sentenced to death by electrocution to elect execution by lethal injection as an alternative.” But Justices George H. Carley, joined by P. Harris Hines and Hugh P. Thompson, rejected Fletcher’s lengthy discussion of the death penalty. “Because of the complete absence of any proffer, and in light of our very recent ruling on this issue, we do not have either jurisdictional or precedential authority to discuss this issue in this case,” Carley wrote.

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