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Just four hours before Ronald Keith Spivey was to die in Georgia’s electric chair, the state’s supreme court voted 4-3 to stop the execution. At 3 p.m. Tuesday the court issued an order staying the sentence until it “addresses whether death by electrocution violates the Eight Amendment prohibition against cruel and unusual punishment or until further order of this Court.” Multi-County Public Defender B. Michael Mears hails the order as a long-awaited change from the court’s earlier stand on examining electrocution. “I think that the supreme court, after a number of years of delaying facing this issue directly now has an opportunity to put electrocution to rest once and for all,” Mears says. “The most significant thing here is that … the court has committed itself to making a decision about the constitutionality of the electric chair, and that is extremely significant.” Other defense lawyers see benefits for their clients facing death. “If the state is in the business of killing people it ought to at least do it as humanely as possible. I don’t believe the electric chair does that,” says Atlanta criminal defense lawyer H. Michael Harvey. Harvey is one of the lawyers for Jeffrey Ray Sharp, who is facing murder charges in Fulton County Superior Court. Last Friday, Sharp’s lawyers asked for — and won — the right to videotape Spivey’s execution, to preserve evidence that it is a cruel and unusual punishment. “I think what it [the ruling] means to defendants who either have been convicted of or are facing a death sentence, for offenses which occurred before May 1, 2000, is that it gives them hope that their death will not occur through the use of electrocution,” Harvey says. Spivey’s lawyer, Thomas H. Dunn, did not return calls for comment by press time. Columbus District Attorney John Gray Conger, who is handling the state’s case, also did not return calls. JUSTICES NARROWLY DIVIDED The majority included those justices who have been described as the court’s liberal wing: Chief Justice Robert Benham, Presiding Justice Norman S. Fletcher and Justice Leah W. Sears. It also included Justice Carol W. Hunstein, who has been described as a moderate. Sears issued a concurrence that was not joined by the other members of the majority, despite the latter justices’ majority vote. The court’s more conservative members, Justices George H. Carley, P. Harris Hines and Hugh P. Thompson, issued a strongly worded dissent. “I wish the decision had been unanimous,” says Mears, adding that it is obviously the product of much discussion among the justices in recent days. “The order, concurrence and dissent didn’t just happen,” he says. The order follows several death penalty appeals before the high court, where the court has been asked to rule that, in light of prevailing values, execution by electrocution constitutes cruel and unusual punishment. Each time, a majority of the court declined to consider the constitutional question, citing procedural grounds. The electrocution issue was either not raised in the trial court, or there was not a sufficient proffer of evidence at the trial court level, the court explained. Some have described that as a Catch 22: The issue has not been developed in the trial courts because, as it stands, electrocution is lawful. But most of the justices indicated they would be willing to consider the issue if presented with the right case. “[T]his Court, upon a sufficient evidentiary showing, 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,” Presiding Justice Fletcher wrote in Esposito v. State, No. S00P0654 (Sup. Ct. Ga. Oct. 30, 2000). Possibly because of that declaration, two Fulton County Superior Court judges have since ruled electrocution unconstitutional. Those rulings, when considered on appeal to the high court, may provide the procedural opportunity that the justices in the majority are seeking. COMMUTATION SOUGHT While the high court was meeting about the stay, Spivey’s lawyers were meeting with the State Board of Pardons and Paroles to ask the board to commute their client’s sentence to life in prison. Though the session was closed-door, a formal written application to the board is public record. Long before his 1976 Columbus crime spree, which left two dead, including an off-duty Columbus police officer, Spivey, now 61, suffered from repeated head trauma and debilitating psychiatric dysfunction, lawyer William J. Mertens of Asbill, Junkin, Moffitt & Boss in Washington, told the board. Contributing to Spivey’s life-long psychiatric problems was a childhood marred by continuous physical and emotional abuse at the hands of his father. Mertens wrote: “At the age of 4 or 5 Ronald’s father punished him for crying over a burn by keeping him wrapped in four to five blankets during the heat of the Georgia summer. Another common punishment for Ronald was to be locked in a closet for long periods of time. … On one occasion he killed Ronald’s pet dog. On another occasion Oscar Spivey informed his youngest son at the dinner table that the boy was eating his own pet chicken.” Since the board considers itself an avenue of last resort, it will not issue a ruling on Tuesday’s bid for commutation.

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