The Georgia Death Penalty Assessment Report



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Defending Liberty

Pursuing Justice


EVALUATING FAIRNESS AND ACCURACY IN STATE DEATH PENALTY SYSTEMS:

The Georgia Death Penalty Assessment Report


An Analysis of Georgia’s Death Penalty Laws, Procedures, and Practices

“A system that takes life must first give justice.”

John J. Curtin, Jr., Former ABA President

January 2006


AMERICAN BAR ASSOCIATION









Defending Liberty

Pursuing Justice


EVALUATING FAIRNESS AND ACCURACY IN STATE DEATH PENALTY SYSTEMS:

The Georgia Death Penalty Assessment Report


An Analysis of Georgia’s Death Penalty Laws, Procedures, and Practices

“A system that takes life must first give justice.”

John J. Curtin, Jr., Former ABA President

January 2006


AMERICAN BAR ASSOCIATION

The materials contained herein represent the assessment solely of the ABA Death Penalty Moratorium Implementation Project and the Georgia Death Penalty Assessment Team and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and accordingly, should not be construed as representing the policy of the American Bar Association.


These materials and any forms or agreements herein are intended for educational and informational purposes only.
This document has been produced with the financial assistance of the European Union.  The contents of this report are the sole responsibility of the American Bar Association and can under no circumstances be regarded as reflecting the position of the European Union.
Significant portions of the research was performed on Westlaw courtesy of West Group.
Copyright 2006, American Bar Association

Acknowledgements
The American Bar Association Death Penalty Moratorium Implementation Project (the Project) is pleased to present this publication, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Georgia Death Penalty Assessment Report.
The Project expresses its great appreciation to all those who helped to develop, draft, and produce the Georgia Assessment Report. The efforts of the Project and the Georgia Death Penalty Assessment Team were aided by many lawyers, academics, judges, and others who presented ideas, shared information, and assisted in the examination of Georgia’s capital punishment system.
The entire staff of the Project along with its Steering Committee and Advisory Board participated in this endeavor and the Georgia Death Penalty Assessment Report could not have been completed without their cumulative efforts. Particular thanks must be given to Lindsay B. Glauner and Seth Miller, the Project staff who spent countless hours researching, writing, editing, and compiling this report. In addition, we would like to thank the American Bar Association Section of Individual Rights and Responsibilities for their substantive, administrative, and financial contributions.
We would like to recognize the research contributions made by Heather Schafer, Research Coordinator, Stewart Bratcher, Julia Blake Eno, Ryan Finch, J. Colby Jones, Heather S. Robinson, DeLaycee Rowland, Samir Patel, and Sarah Simmons, all of whom are law students at Georgia State University School of Law, Jimmy C. Luke, a student at Emory University School of Law, and Angela Tarabadka, a student at Mercer University School of Law.
Additionally, the efforts of Raymond Paternoster, Glenn Pierce, and Michael Radelet in conducting the attached race study were critically important.
Lastly, in this publication, the Project and the Assessment Team have attempted to note as accurately as possible information relevant to the Georgia death penalty. The Project would appreciate notification of any errors or omissions in this report so that they may be corrected in any future reprints.
TABLE OF CONTENTS


Executive Summary i

Introduction 1

An Overview of Georgia’s Death Penalty System 7

I. Demographics of Georgia’s Death Row 7

II. The Statutory Evolution of Georgia’s Death Penalty Scheme 9

III. The Progression of a Georgia Death Penalty Case from Arrest to Execution 17



Collection, Preservation, and Testing of DNA and Other Types of Evidence 47

Introduction to the Issue 47

I. Factual Discussion 49

II. Analysis 58



Law Enforcement Identifications and Interrogations 64

Introduction to the Issue 64

I. Factual Discussion 66

II. Analysis 76



Crime Laboratories and Medical Examiner Offices 87

Introduction to the Issue 87

I. Factual Discussion 89

II. Analysis 101



Prosecutorial Professionalism 106

Introduction to the Issue 106

I. Factual Discussion 108

II. Analysis 118



Defense Services 127

Introduction to the Issue 127

I. Factual Discussion 129

II. Analysis 147



The Direct Appeal Process 165

Introduction to the Issue 165

I. Factual Discussion 167

II. Analysis 172



State Post-Conviction Proceedings 175

Introduction to the Issue 175

I. Factual Discussion 177

II. Analysis 186



Clemency 194

Introduction to the Issue 194

I. Factual Discussion 196

II. Analysis 203



Voir Dire and Capital Jury Instructions 214

Introduction to the Issue 214

I. Factual Discussion 215

II. Analysis 245



Judicial Independence 255

Introduction to the Issue 255

I. Factual Discussion 256

II. Analysis 266



The Treatment of Racial and Ethnic Minorities 275

Introduction to the Issue 275

I. Factual Discussion 276

II. Analysis 278



Mental Retardation, Mental Illness, and the Death penalty 289

Introduction to the Issue 289

I. Factual Discussion 291

II. Analysis 306



Appendix A

Executive Summary

Introduction

Fairness and accuracy together form the foundation of the American criminal justice system. As our capital punishment system now stands, however, we fall short in protecting these bedrock principles. Our system cannot claim to provide due process or protect the innocent unless it provides a fair and accurate system for every person who faces the death penalty.


Over the course of the past thirty years, the American Bar Association (ABA) has become increasingly concerned that there is a crisis in our country’s death penalty system and that capital jurisdictions too often provide neither fairness nor accuracy. In response to this concern, on February 3, 1997, the ABA called for a nationwide moratorium on executions until serious flaws in the system are identified and eliminated. The ABA urges capital jurisdictions to (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent persons may be executed.
In the autumn of 2001, the ABA, through the Section of Individual Rights and Responsibilities, created the Death Penalty Moratorium Implementation Project (the Project). The Project collects and monitors data on domestic and international death penalty developments; conducts analyses of governmental and judicial responses to death penalty administration issues; publishes periodic reports; encourages lawyers and bar associations to press for moratoriums and reforms in their jurisdictions; and encourages state government leaders to establish moratoriums, undertake detailed examinations of capital punishment laws and processes, and implement reforms.
To assist the majority of capital jurisdictions that have not yet conducted comprehensive examinations of their death penalty systems, the Project decided in February 2003 to examine sixteen U.S. jurisdictions’ death penalty systems and preliminarily determine the extent to which they achieve fairness and provide due process. The Project is conducting state assessments in Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Nevada, Ohio, Oklahoma, Pennsylvania, Tennessee, South Carolina, Texas, and Virginia. The assessments are not designed to replace the comprehensive state-funded studies necessary in capital jurisdictions, but instead are intended to highlight individual state systems’ successes and inadequacies.
These assessments examine the above-mentioned jurisdictions’ death penalty systems, using as a benchmark the protocols set out in the ABA Section of Individual Rights and Responsibilities’ publication, Death without Justice: A Guide for Examining the Administration of the Death Penalty in the United States (the Protocols). While the Protocols are not intended to cover exhaustively all aspects of the death penalty, they do cover seven key aspects of death penalty administration, including defense services, procedural restrictions and limitations on state post-conviction and federal habeas corpus, clemency proceedings, jury instructions, an independent judiciary, the treatment of racial and ethnic minorities, and mental retardation and mental illness. Additionally, the Project includes for review five new areas associated with death penalty administration, including the preservation and testing of DNA evidence, identification and interrogation procedures, crime laboratories and medical examiners, prosecutors, and the direct appeal process.

Each state’s assessment has been or is being conducted by a state-based Assessment Team, which is comprised of or has access to current or former judges, state legislators, current or former prosecutors, current or former defense attorneys, active state bar association leaders, law school professors, and anyone else whom the Project felt was necessary. Team members are not required to support or oppose the death penalty or a moratorium on executions.



The state assessment teams are responsible for collecting and analyzing various laws, rules, procedures, standards, and guidelines relating to the administration of the death penalty. In an effort to guide the teams’ research, the Project created an Assessment Guide that detailed the data to be collected. The Assessment Guide includes sections on the following: (1) death row demographics, DNA testing, and the location, testing, and preservation of biological evidence; (2) evolution of the state death penalty statute; (3) law enforcement tools and techniques; (4) crime laboratories and medical examiners; (5) prosecutors; (6) defense services during trial, appeal, and state post-conviction proceedings; (7) direct appeal and the unitary appeal process; (8) state post-conviction relief proceedings; (9) clemency; (10) jury instructions; (11) judicial independence; (12) the treatment of racial and ethnic minorities; and (13) mental retardation and mental illness.
The assessment findings provide information about how state death penalty systems are functioning in design and practice and are intended to serve as the bases from which states can launch comprehensive self-examinations. Because capital punishment is the law of the land in each of the assessment states and because the ABA has no position on the death penalty per se, the assessment teams focused exclusively on capital punishment laws and processes and did not consider whether states, as a matter of morality, philosophy, or penological theory, should have the death penalty. Moreover, the Project and the Assessment Team have attempted to note as accurately as possible information relevant to the Georgia death penalty. The Project would appreciate notification of any errors or omissions in this report so that they may be corrected in any future reprints.
Despite the diversity of backgrounds and perspectives among the members of the Georgia Death Penalty Assessment Team, and although some members disagree with particular recommendations contained in the assessment report, the team is unanimous in many of the conclusions. Even though not all team members support the call for a moratorium, they are unanimous in their belief that the body of recommendations as a whole would, if implemented, significantly enhance the accuracy and fairness of Georgia’s capital punishment system.


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