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Of the six courts that have looked at the case of condemned murderer Wallace M. Fugate III, the Georgia Supreme Court has been the most sympathetic. Twice the justices have split 4-3 — but both times against Fugate. On Tuesday, Fugate’s lawyers from the Southern Center for Human Rights askedthe Georgia justices to stay Fugate’s execution — set for next Tuesday at 7p.m. — so that the court may consider their arguments again challenging Fugate’s sentence. In 1997, three justices — Norman S. Fletcher, Leah Ward Sears and RobertBenham — voted to hear Fugate’s appeal of his denial of a writ of habeas corpus from the Superior Court of Butts County, which has jurisdiction over the state prison housing Georgia’s Death Row. But they were outvoted by Justices George H. Carley, Carol W. Hunstein, Hugh P. Thompson and P. Harris Hines. The same split occurred on Fugate’s motion for reconsideration a month later. Other state and federal courts have been less divisive, though not completelywithout concerns about Fugate’s arguments, which include: attacking his trialcounsel as ineffective; arguing his sentence is disproportionate; and claimingGeorgia’s lethal injection procedure is cruel and unusual. 1992 CONVICTION Fugate was convicted in 1992 by a Putnam County jury of murdering his ex-wife,Pattie Fugate, the previous year. According to court decisions and briefs, Fugate had broken into his ex-wife’shouse. He said he had come to the house to fix their teen-age son’s car whilenobody was home. When Pattie and the son returned they surprised Fugate, whowas carrying a revolver. After Fugate’s son tried to shoot him with a disabled rifle, a scuffle ensuedbetween Fugate and his ex-wife. Fugate claimed his revolver went off accidentally, killing Pattie. Fugate’s son claimed his father dragged his mother out of the house, pistol-whipped her, grabbed her hair, jerked her head back and shot her in the forehead. The trial lasted two days, including just a 27-minute presentation of evidenceduring the penalty phase. Fugate’s lawyers did not bring up evidence about amanufacturing defect on the gun that made it susceptible to accidental firing.Nor did they extensively impeach the son, whose trial testimony conflicted with his statement to the police that he did not see Fugate fire the weapon. Fugate’s current legal team from the Southern Center for Human Rights arguesthat his court-appointed trial lawyers did not provide constitutionallyeffective representation. Center lawyers Stephen B. Bright, Palmer Singletonand Sanjay K. Chhablani, who took the case in 1994, wrote in their currentbrief to the Georgia high court that “far less information was conveyed to thejury that had to decide Mr. Fugate’s fate than is communicated to buyers andsellers in a real estate closing.” Reginald L. Bellury of Milledgeville, Ga., Fugate’s original trial counsel, was onthe team that brought Fugate’s direct appeal to the Georgia high court. Theappeal didn’t raise the issue of ineffective assistance of counsel, and in 1993 the justices upheld the verdict and sentence unanimously. Asked whether he thought his trial representation was effective, Bellury saidin a telephone interview that “in the technical legal sense” it was, since thecourts have held so. “In the informal sense, obviously no, because the guy got the death penalty,”he added. HABEAS SOUGHT IN 1994 In 1994, now with Bright and the center representing him, Fugate sought habeascorpus from the Butts County Superior Court. Sitting by designation, BryanCounty Superior Court Judge John R. Harvey acknowledged he had “major concerns” about the “weakness of counsel’s performance” but nonetheless denied relief. In 1997, the Georgia high court split 4-3 to deny Fugate’s petition for acertificate of probable cause to appeal — and then the same way onreconsideration. In 1998, U.S. District Judge Wilbur D. Owens Jr. of Georgia’s Middle Districtdenied Fugate’s federal habeas petition. Last year, a panel of the 11th U.S. Circuit Court of Appeals affirmed Owens’ruling by a 3-0 vote. The year before, the 11th Circuit had split 6-5 in holding that a lawyer whofailed to prepare and present mitigating evidence to the sentencing jury in a death case could be considered effective. Chandler v. U.S., 218 F. 3d 1305(2001). One judge in Fugate’s case suggested he may have voted differently had thestandard for competent counsel been higher. A Chandler dissenter, Judge Stanley F. Birch, specially concurred, saying,”Although I remain convinced that our court set the acceptable level ofattorney assistance for preparation for the penalty phase of a capital case too low in Chandler v. U.S. … the panel majority has correctly applied that decision to the case at hand.” Judges Frank M. Hull and Stanley Marcus, both in the Chandler majority, also voted against Fugate. Fugate v. Head, 261 F.3d 1206 (2001). Late last month, the U.S. Supreme Court, without comment, denied Fugate’spetition for certiorari. By that point, Fugate’s lawyers had returned to Butts County to file anotherhabeas petition, but Judge Kevin A. Wangerin dismissed it. Wangerin said Fugate’s challenge to lethal injection “fails to state a claimupon which relief can be granted.” Fugate claimed his sentence was out of proportion for a heat of passion crime,noting that Fredric W. Tokars received life imprisonment for hiring a hitman to murder his wife. As for Fugate’s claim that his sentence was not proportionate to those forsimilar crimes, Wangerin said that issue was dealt with in the Georgia highcourt’s 1993 affirming opinion and precedent did not allow a second proportionality review. BACK AT STATE SUPREME COURT That led to Tuesday, when Fugate’s lawyers placed their appeal before theGeorgia high court. In a separate case decided last year, Fugate’s previous supporters — Fletcher, Sears and Benham — teamed with Hunstein, forming a majority to rule that the execution by electric chair violated the Eighth Amendment’s prohibition on cruel and unusual punishment. But Bright said he wasn’t aiming Fugate’s latest appeal just at Hunstein,however, bucking the idea that the court votes in blocs. “I think the justices are somewhat unpredictable,” he said, suggesting thatit’s the splits that are unusual. “More often than not, the court tends to be in agreement,” he added, with thecourt unanimously voting to reverse or affirm. Georgia Attorney General Thurbert E. Baker, Deputy AG Mary Beth Westmorelandand Senior Assistant AG Susan V. Boleyn filed a response for the state withinhours of Fugate’s brief being filed at the high court. They argue, “Petitioner is presenting nothing ‘new’ to this Court” on thelethal injection issue, pointing out that Fugate’s arguments already have beenrejected by other petitioners facing execution. In Fugate’s other claims, they argue, “Petitioner merely attempts to relitigate issues which Petitioner has repeatedly raised and litigated in both this Court, the state habeas court and the federal courts throughout his direct appeal and collateral proceedings.”

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