Mercer Law Review Mercer Law Review
Volume 75
Number 1
Annual Survey of Georgia Law
Article 7
12-2023
Capital Punishment Capital Punishment
Carlos Wood
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91
“Death IS Different”: The Decrease
in Death Penalty Sentencing in
Georgia
Carlos Wood
*
I. INTRODUCTION
In Glossip v. Gross,
1
a 2015 Supreme Court of the United States case
that addressed the constitutionality of Oklahoma’s lethal injection
protocol,
2
Justice Breyer authored a dissent, joined by Justice Ginsburg,
in which he noted the declining use of the death penalty in the United
States.
3
Justice Breyer began his dissent by noting the downward
trajectory of the number of convictions that resulted in capital
sentences.
4
The evidence he cited included the following: from 1986 to
1999, approximately 300 people on average were sentenced to death
every year, but in 2000, this number began to decline rapidly.
5
In 2014,
the year prior to Glossip, only seventy-three people were sentenced to
death in seven states.
6
He noted a similar decline with respect to the
number of people executed.
7
Justice Breyer went on to note that thirty
states have formally abolished the death penalty or have not conducted
an execution in years, and in cases when a death sentence is returned, it
*
Attorney, Social Security Administration, Office of Disability Adjudication and Review.
Auburn University Montgomery (B.A., 2001); Chase College of Law, Northern Kentucky
University (J.D., 2006). Member, State Bars of Georgia and Kentucky. The author has
represented clients facing capital punishment in Georgia and in Kentucky. The title of this
Survey Article is a reference to Woodson v. North Carolina, 428 U.S. 280, 322 (1976).
1. 576 U.S. 863 (2015).
2. Glossip, 576 U.S. at 867–93.
3. Id. at 938–44 (Breyer, J., dissenting specially).
4. Id. at 938–39.
5. Id. at 939.
6. Id.
7. Id.
92 MERCER LAW REVIEW Vol. 75
overwhelmingly happens in specific geographic areas of the country.
8
This data led Justice Breyer to conclude that the death penalty is
“unusual” within the context of the Eighth Amendment’s Cruel and
Unusual Punishment Clause
9
when it comes to the imposition of capital
punishment in the United States in total.
10
From this data, Justice
Breyer inferred that most Americans, if chosen to serve on a jury deciding
capital punishment, would choose to sentence someone to life in prison
without the possibility of parole instead.
11
The obvious question raised,
then, is why the death penalty is on the decline.
12
For a five-year period from 2014 to 2019, despite the death penalty
being sought in judicial circuits across the state of Georgia, there were
no death sentences imposed.
13
Since 2019, there have been just two.
14
It
follows then, that without death sentences, there are fewer appeals. This
Survey reflects that reality. From 2014 to 2023, ten death penalty cases
were reviewed by the Supreme Court of Georgia, and one case was
reviewed by the U.S. Supreme Court after the Supreme Court of Georgia
declined to grant certiorari from a denial of habeas corpus.
15
There were
two reversals of death sentences, one reversal of a life without parole
8. Id. at 940. This review includes a staggering fact: that three states (Texas,
Missouri, and Florida) are responsible for 80% of death sentences, and in 86% of counties
in the United States, there is effectively no death penalty. Id. at 904–41.
9. U.S. CONST. amend. VIII.
10. Glossip, 576 U.S. at 944 (Breyer, J., dissenting specially).
11. Id. at 943.
12. Justice Breyer posited several theories: “Lack of reliability, the arbitrary
application of a serious and irreversible punishment, individual suffering caused by long
delays, and lack of a penological purpose.” Id. at 944.
13. Georgia History of the Death Penalty, DEATH PENALTY INFORMATION CENTER,
https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/georgia [https://perma.cc
/6TT9-SNRZ] (last visited Sept. 1, 2023).
14. Tiffany Moss was sentenced to death in Gwinnett County in 2019, in a case in
which she represented herself, presented no mitigating evidence, and asked few questions
of witnesses and jurors in jury selection. The other case was the case of Ricky Dubose in
Putnam County in 2022.
15. See Hulett v. State, 296 Ga. 49, 766 S.E.2d 1 (2014); Chatman v. Walker, 297 Ga.
191, 773 S.E.2d 192 (2015); Martin v. State, 298 Ga. 259, 779 S.E.2d 342 (2015); Spears v.
State, 296 Ga. 598, 769 S.E.2d 337 (2015); Foster v. Chatman, 578 U.S. 488 (2016); Willis
v. State, 304 Ga. 686, 820 S.E.2d 640 (2018); Young v. State, 312 Ga. 71, 860 S.E.2d 746
(2021); Brookins v. State, 315 Ga. 86, 879 S.E.2d 466 (2022); State of Ga. v. Fed. Defender
Program, Inc., 315 Ga. 319, 882 S.E.2d 257 (2022); Moody v. State, 316 Ga. 490, 888 S.E.2d
109 (2023); see also State v. Gates, 308 Ga. 238, 840 S.E.2d 437 (2020). This began as a
death penalty case, but the defendant was eventually sentenced to life without parole before
having his conviction and sentence reversed by the Supreme Court of Georgia after
affirming a trial court’s granting of an extraordinary motion for new trial. Due to the
defendant having spent twenty-six years on death row and a total of forty-three years in
prison, his case is included in this Survey.
2023 CAPITAL PUNISHMENT 93
sentence where the defendant had previously spent twenty-six years on
death row, and eight death sentences affirmed. The cases over this period
addressed issues such as jury selection, juror misconduct, the failure to
conduct an adequate mitigation investigation, racial discrimination, and
intellectual disability as well as others. This Article will survey these
decisions but will first address the decline of the death penalty in
Georgia.
II. THE FALLING NUMBER OF DEATH SENTENCES IN GEORGIA
Since the death penalty was reinstated nationally in 1976 in Gregg v.
Georgia,
16
Georgia has executed seventy-six people.
17
Currently, Georgia
ranks sixth amongst the states which impose the death penalty, behind
Texas, Oklahoma, Virginia, Florida, and Missouri.
18
There are now
thirty-eight people on Georgia’s death row: thirty-seven males and one
female.
19
Researchers have collected data nationally that suggests that
several factors are at play in explaining the decline of the death penalty
across the nation: (1) the availability of a life without parole sentencing
option; (2) the requirement of a jury making a sentencing
determination,
20
which, in Georgia, must be unanimous;
21
and (3) a state
funded system of capital defense, typically provided by public defender
organizations.
22
In Georgia, all three of these factors exist. In 1993, Georgia established
a life without parole sentence.
23
Seven years later, as noted by Justice
Breyer in Glossip, the number of death sentences began their downward
trajectory.
24
Secondly, Georgia’s death penalty statute requires
unanimity of the jury in recommending a death sentence.
25
Finally, the
Office of the Georgia Capital Defender became operational under the
16. 428 U.S. 153 (1976).
17. Executions by State and Region Since 1976, DEATH PENALTY INFORMATION CENTER,
https://deathpenaltyinfo.org/executions/executions-overview/number-of-executions-by-
state-and-region-since-1976 [https://perma.cc/6UH4-Z3Y5] (last visited Aug. 1, 2023).
18. Id.
19. Inmate Statistical Profile, GEORGIA DEPARTMENT OF CORRECTIONS, https://gdc.
georgia.gov/profiles-death-row-inmates-during-2023 [https://perma.cc/23M5-L4PA] (last
visited Aug. 2, 2023).
20. See Arthur Desai & Brandon Garrett, The State of the Death Penalty, 94 NOTRE
DAME L. REV. 1256, 1266 (2019).
21. O.C.G.A. § 17-10-31 (2009).
22. DESAI & GARRETT, supra note 22, at 1266.
23. O.C.G.A. § 17-10-31.
24. Glossip, 576 U.S. at 941 (Breyer, J., dissenting specially).
25. O.C.G.A. § 17-10-31(c) (2009).
94 MERCER LAW REVIEW Vol. 75
auspices of the Georgia Public Defender Council in January 2005.
26
The
Office of the Georgia Capital Defender represents indigent defendants
against whom the death penalty is sought and is nationally renowned for
its work on behalf of the agency’s clients.
27
In sum, these three factors
collectively have contributed to the reduction of death sentences in
Georgia.
28
After Adrian Hargrove was sentenced to death in Richmond County in
March 2014,
29
no one in Georgia was sentenced to death until the trial
of Tiffany Moss in 2019.
30
Ms. Moss’s case was an outlier, however,
because she chose to represent herself, which was permitted by the trial
judge over the objection of her appointed attorneys.
31
She offered no
defense or evidence in support of a life sentence at her trial.
32
During
this five-year period, Georgia prosecutors noted what researchers
had concluded: the three factors listed above had made a difference.
33
The Director of the Prosecuting Attorneys’ Council of Georgia noted in
2018 that most people in Georgia were more likely to sentence an
individual to life without parole than a death sentence due to the
decline in support of the death penalty.
34
Another prominent district
attorney, who secured the death sentence against Tiffany Moss, noted
that many prosecutors acknowledge the drop in support of the death
penalty and are offering to recommend life without parole sentences in
exchange for a guilty plea.
35
The life sentence resolutions are largely due to the efforts of the
Georgia Capital Defender Office, which has been instrumental in
26. O.C.G.A. § 17-12-12 (2008).
27. O.C.G.A. § 17-12-12(a) (2008).
28. See Bill Rankin, Death sentences becoming increasingly rare in Georgia, THE
ATLANTA JOURNAL-CONSTITUTION, https://www.ajc.com/news/crime--law/death-sentences-
becoming-increasingly-rare-georgia/Bm66HgMVnZI7lP2xDbTGzL/ [https://perma.cc/N74
X-B9AS] (last visited July 30, 2023).
29. Sandy Hodson, Adrian Hargrove handed death sentence for 2008 Augusta triple
slayings, THE AUGUSTA CHRONICLE, https://www.augustachronicle.com/story/news/2014/
03/25/adrian-hargrove-handed-death-sentence-2008-triple-slayings/14417846007/ [https
://perma.cc/RA2Y-U92E] (last visited July 23, 2023).
30. Bill Rankin, Gwinnett woman’s competence could be focus of death penalty appeal,
THE ATLANTA JOURNAL-CONSTITUTION, https://www.ajc.com/news/local/gwinnett-county-
woman-death-sentence-was-disturbing-highly-unusual/EMjVdydfXl8bmjh4MDI86M/ [htt
ps://perma.cc/BT9E-EZLG] (last visited July 23, 2023).
31. Id.
32. Id.
33. Id.
34. Id.
35. Id. (quoting Gwinnett County District Attorney at the time, Danny Porter) (“It’s a
self-fulfilling prophesy . . . [a]s more and more juries give fewer death sentences,
prosecutors begin to think it’s not worth the effort.”).
2023 CAPITAL PUNISHMENT 95
resolving cases and presenting a compelling narrative through their
comprehensive investigations into their clients’ lives in the cases that do
go to trial.
36
Since the last survey period in 2014,
37
the agency has
resolved numerous cases, saving their clients’ lives and, in conjunction
with prosecutors, saving the state and taxpayers time, resources, and
money.
38
Similar considerations, particularly relating to the length of
time that a case takes to bring to trial and the uncertainty of the
appellate process, have convinced family members of victims to agree to
a district attorney seeking guilty pleas in exchange for life without
parole.
39
From 2015 to 2019, and prior to the COVID-19 pandemic, the
Capital Defender’s Office resolved sixty-nine cases, most of them for life
without parole sentences.
40
During this period, five cases went to trial,
and jurors did not sentence the defendant to death in any of those trials.
41
The data in Georgia as a whole since 2014, including the fact that there
has been only one death sentence where a defense was actually presented
with a full defense team, suggests that the recent trend of reduced
support of the death penalty not only exists in Georgia, but has been
building for some time, with no sign of an increase in support as a result
of changes in Georgia law, as well as the increase in quality of
representation through a dedicated capital defender agency.
III. DIRECT APPEALS OF DEATH SENTENCES OR STATE HABEAS DENIALS
Two cases discussed in this Survey Article involved reversals of death
sentences. One case involved a reversal of a conviction and a life without
parole sentence because of a grant of a new trial on the ground of newly
discovered DNA evidence for a defendant who had been on death row for
twenty-six years. That case is addressed here because it contains
analogues to one of the other reversed cases and also illustrates how a
jury’s fear of executing an innocent person has played a role in the drop
in support of the death penalty. Throughout this Survey Article, the cases
discussed involve several issues that have been raised on numerous
occasions before the Georgia Supreme Court but did not change the law.
36. Id.
37. For an analysis of Georgia death penalty law during the most recent Survey Period,
see Josh D. Moore, Death Penalty, Annual Survey of Georgia Law, 66 Mercer L. Rev. 51
(2014), https://digitalcommons.law.mercer.edu/jour_mlr/vol66/iss1/8/ [https://perma.cc/8M
Q9-Z9Y7].
38. Rankin, supra note 30.
39. Id.
40. Bill Rankin, Death Penalty on the Wane in Georgia, THE ATLANTA JOURNAL-
CONSTITUTION, https://www.ajc.com/news/local/death-penalty-the-wane-georgia/25R8g9dc
5Hx5mZCmAjEAjO/ [https://perma.cc/6EYX-6P32] (last visited July 30, 2023).
41. Id.
96 MERCER LAW REVIEW Vol. 75
This Survey has limited the scope of discussion of those cases to issues
that addressed a change, commentary, or evolution of Georgia capital
punishment law.
A. Batson Claims of Racial Discrimination in Jury Selection
In Foster v. Chatman,
42
the Supreme Court of the United States
reversed the death sentence of Timothy Foster after habeas corpus claims
were litigated at the state trial court level.
43
The Court held that the
district attorney who prosecuted Foster engaged in purposeful racial
discrimination in jury selection by using peremptory strikes on all four
of the black prospective jurors in the jury pool from which the jury was
chosen.
44
Mr. Foster, who is black, was convicted and sentenced to death
by an all-white jury in Rome, Georgia, in 1986.
45
This case, as well as
Flowers v. Mississippi
46
decided three years later, shows a willingness on
the part of the U.S. Supreme Court to give teeth to Batson claims in cases
where the record contains glaring and obvious examples of racial
discrimination.
47
The evidence of racial discrimination was discovered when, while the
case was pending on a state habeas corpus claim, trial counsel obtained
the district attorney’s trial files from his original trial.
48
Contained
within that file were documents in which the black potential jurors had
been designated with a “B” or an “N” next to their names in lists of jurors
written by the prosecutor’s staff; a document saying “no black church” on
a document entitled with the name of a black juror’s church; a document
with “definite NO’s” listing all qualified black prospective jurors; green
highlighting of all the black jurors names on the jury venire list with a
legend showing that the green represented black jurors; and the State’s
copies of the juror questionnaires, in which the race of all the black
prospective jurors had been circled.
49
The only document that the State
conceded had been made by a prosecutor was the one that said “definite
NO’s” which arguably among this specific set of documents was the least
damaging.
50
The Supreme Court stated that a dispute over authorship of
a document may affect its probative value, but since all of the documents
42. 578 U.S. 488 (2016).
43. Id. at 514.
44. Id.
45. Id. at 492–93.
46. 139 S. Ct. 2228 (2019).
47. See Batson v. Kentucky, 476 U.S. 79 (1986).
48. Foster, 578 U.S. at 493.
49. Id. at 493–95.
50. Id. at 495.
2023 CAPITAL PUNISHMENT 97
came from the district attorney’s office, the inference was that someone
on their staff had written them.
51
After reviewing all of the documents,
the Court held that Batson had been violated
52
and that the State’s
proffered reasons at the time were pretextual and meant to hide
purposeful racial discrimination.
53
The Court’s denouncing of this practice was in particularly strong
language, stating that “the focus on race in the prosecution’s file plainly
demonstrated a concerted effort to keep black prospective jurors off the
jury,” and that the “sheer number of references to race in that file is
arresting.”
54
The State’s reasons for striking two of the black jurors were
either pretextual or simply false, the Court concluded.
55
The State said it
struck one juror because she was too young, divorced, that she was not
truthful about living near the crime scene,
56
and that the defense did not
ask her any questions about insanity, alcohol use, or publicity.
57
However, the State declined to strike eight white jurors either the same
age or younger than her and three white jurors who were also divorced.
58
Further, the trial transcript revealed that the defense did in fact ask
questions about everything the State claimed it did not.
59
With respect to the other black juror, the State claimed that it struck
him because he had a son close to the same age as Mr. Foster, who was
eighteen-years-old at the time;
60
that the juror’s son had been convicted
of a theft charge which it claimed was the same thing as what Mr. Foster
was charged with; and that his church affiliation (which was marked on
a document as “No Black Church”) had members who were in opposition
to the death penalty.
61
Yet this juror stated that he could vote for the
death penalty, and the Court dismissed the notion that a theft charge is
the same as the murder and sexual assault that Mr. Foster was charged
with.
62
The review of the record in context with the newly discovered
documents from the State’s trial file demonstrated to the Court that the
proffered reasons for the strike were pretextual, holding that “[t]wo
peremptory strikes on the basis of race are two more than the
51. Id. at 501.
52. Id. at 513–14.
53. Id. at 509.
54. Id. at 513–14.
55. Id. at 505.
56. Id. at 505–06.
57. Id. at 505.
58. Id. at 505–06.
59. Id. at 505.
60. Id. 507–08.
61. Id. at 510–11.
62. Id. at 509.
98 MERCER LAW REVIEW Vol. 75
Constitution allows.”
63
Though there has been much litigation and
commentary that Batson claims are difficult to pursue due to the
difficulty in establishing pretext, in this case as well as in both Batson
and Flowers,
64
where there are numerous references to race of
prospective jurors, the Supreme Court is more than willing to take on
those claims.
B. Failure to Conduct Adequate Mitigation Investigation
From 2014 to 2015, the Supreme Court of Georgia addressed two cases
in which claims of inadequate mitigation investigation were made,
coming to different conclusions in each one.
65
In Chatman v. Walker,
66
the court reversed a death sentence after holding that Mr. Walker’s
defense in the mitigation phase at trial was a “situation in which grossly
inadequate preparation combined with an unqualified mitigation
specialist yielded a predictably poor result.”
67
In Hulett v. State,
68
the
court found no prejudice resulted in the failure to hire a qualified
mitigation specialist to conduct the investigation into Mr. Hulett’s life
history.
69
In both cases, the court analyzed each of the trial teams’
decision-making in how they conducted the mitigation investigation for
their clients and came to the conclusion that Mr. Hulett failed to show
prejudice in how his mitigation investigation was conducted and
presented at trial,
70
in contrast to Mr. Walker, who demonstrated
prejudice that arguably led to the death sentence he received.
71
In Mr. Walker’s case, there were several deficiencies that ultimately
led to the “poor result” which led to the court reversing his death
sentence.
72
First, the attorneys failed to properly vet the qualifications of
the investigator they chose to hire; the investigator they hired had no
mitigation investigation experience.
73
This failure and lack of experience
of an essential trial team member did not become glaring to the attorneys
until they were in the middle of trial after an especially bad day of
63. Id. at 513–14.
64. 139 S. Ct. 2228 (2019).
65. Chatman v. Walker, 297 Ga. 191, 773 S.E.2d 192 (2015); Hulett v. State, 296 Ga.
49, 766 S.E.2d 1 (2014).
66. 297 Ga. 191, 773 S.E.2d 192.
67. Walker, 297 Ga. at 204, 773 S.E.2d at 202 (internal punctuation omitted).
68. 296 Ga. 49, 766 S.E.2d 1.
69. Hulett, 296 Ga. at 68–69, 766 S.E.2d at 17.
70. Id.
71. Walker, 297 Ga. at 209–10, 773 S.E.2d at 205.
72. Id. at 204, 773 S.E.2d at 202.
73. Id. at 193–94, 773 S.E.2d at 195.
2023 CAPITAL PUNISHMENT 99
testimony.
74
The investigator only spent minimal time with the client’s
relatives, specifically, his aunt and his mother, who he met two or three
times with other non-cooperative relatives who did not want to
participate in the investigation.
75
The mitigation investigator did not
make any attempt to discover details of the client’s life, upbringing, or
events of his childhood that would provide context for later events in his
adulthood.
76
While the investigator did assist in the hiring of a
psychiatric expert, once the evaluation was completed, the doctor
identified several areas of additional investigation and fact-gathering
about the client’s life that required additional investigation.
77
The
investigator never conducted the recommended follow-up by the
psychiatrist, which included additional investigation into those family
members who declined to participate in the investigation.
78
During the
habeas proceeding, the mitigation investigator testified that he kept no
file on the client so that his work could be reviewed.
79
Not only did the
investigator fail to conduct an in-depth investigation into abuse suffered
at the hands of Walker’s mother and her partners over the course of his
childhood, the investigator also failed to further probe into the effect of
the client’s father’s violent murder when he was sixteen years old.
80
During the habeas proceeding, the client’s new attorneys presented
witnesses, as a result of a complete investigation, to demonstrate to the
habeas court how a life sentence could have been obtained had that
complete investigation been originally presented to the jury at the time
of Mr. Walker’s trial.
81
The Supreme Court of Georgia unanimously
agreed with the habeas court and affirmed the reversal of Mr. Walker’s
sentence.
82
Crucial to understanding the court’s holding in both cases is the
application of the American Bar Association’s Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases.
83
In
74. Id. at 204, 773 S.E.2d at 201.
75. Id. at 195, 773 S.E.2d at 195–96.
76. Id. at 196–97, 773 S.E.2d at 196–97.
77. Id. at 197, 773 S.E.2d at 197.
78. Id.
79. Id. at 196–97, 773 S.E.2d at 196–97.
80. Id. at 199, 773 S.E.2d at 198.
81. Id. at 202–09, 773 S.E.2d at 200–05.
82. Id. at 210, 773 S.E.2d at 205.
83. See Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases, AMERICAN BAR ASSOCIATION, https://www.americanbar.org/content/dam/
aba/administrative/death_penalty_representation/2003guidelines.pdf [https://perma.cc/
MS8Z-6DXE] (last visited Sep. 3, 2023); Supplementary Guidelines for the Mitigation
Function of Defense Teams in Death Penalty Cases, AMERICAN BAR ASSOCIATION, https://
100 MERCER LAW REVIEW Vol. 75
Chatman v. Walker, the court rejected the premise that courts cannot
rely upon the guidelines and suggests that those guidelines serve as the
compass under which the choices and performance of trial counsel should
properly be evaluated.
84
In Hulett v. State, however, the court held that
the defendant was unable to demonstrate prejudice in the performance
of his trial attorneys.
85
In Hulett, the trial team decided not to hire a
mitigation specialist, and in contrast with the application of the ABA
Guidelines in Walker, the court held the ABA Guidelines do not require
strict adherence to this rule.
86
Instead, the trial team hired an
investigator who did not have experience investigating mitigation and
life histories but was otherwise an experienced investigator that the trial
attorneys vetted more extensively than the team in Walker had. The
investigator was able to collect a fair amount of records on Mr. Hulett,
and at trial, in comparison to the presentation in Walker, the attorneys
were able to present a more complete picture of Hulett’s life to the jury.
87
The court, however, did not require strict adherence to the ABA
Guidelines if the mitigation evidence presented to the jury was
adequate.
88
The court affirmed Mr. Hulett’s death sentence.
89
C. Issues in Jury Selection
Jury selection issues, apart from Batson claims identified in Foster v.
Chatman,
90
arose in several cases since the last publication of this
Survey. Jury selection is a common issue that arises on appeal in capital
cases, as it is a frequently alleged structural error that prevents the
seating of a venire willing to fairly consider the entire sentencing range:
life with the possibility of parole, life without the possibility of parole,
and death. Jurors must be able to consider each of the three possible
www.americanbar.org/content/dam/aba/administrative/death_penalty_representation/Sta
ndards/National/supplementary-guidelines-mitigation-july-2008.pdf [https://perma.
cc/FR9A-H9DU] (last visited Sept. 3, 2023).
84. 297 Ga. at 202, 773 S.E.2d at 200.
85. 296 Ga. at 69, 766 S.E.2d at 17.
86. Hulett, 296 Ga. at 66–67, 766 S.E.2d at 16.
87. Id. at 67–68, 766 S.E.2d at 16–17.
88. Id. at 66–67, 766 S.E.2d at 16. The court stated that “[T]he Supreme Court recently
reiterated that the ABA Guidelines are ‘not [the] definition’ of attorney reasonableness and
should not be treated by lower courts as ‘inexorable commands’ with which all capital
defense counsel ‘must fully comply.’” Id. at 66, 766 S.E.2d at 16 (quoting Bobby v. Van Hook,
558 U.S. 4, 8–9 (2009)).
89. Id. at 78, 766 S.E.2d at 23.
90. 578 U.S. 488 (2016).
2023 CAPITAL PUNISHMENT 101
sentences or they will be struck for cause.
91
In Willis v. State,
92
this issue
was addressed, and the court overturned longstanding precedent in the
process.
93
First, the court addressed arguments that three jurors who
were opposed to imposing a death sentence were excused in error.
94
The
court held that the trial court did not abuse its discretion upon review of
the entire record of the jurors’ responses.
95
If a trial court finds that a
juror cannot “meaningfully consider” all three sentencing options, the
court explained, the trial court does not abuse its discretion in excusing
that juror for cause.
96
The court set out the entire record of responses and
held that the trial court evaluated the entirety of responses of each juror
before striking them for cause.
97
Each juror, in his or her own way,
demonstrated opposition to the death penalty that would prevent
consideration of the penalty in a court of law.
98
In contrast to Willis, in Spears v. State,
99
the court dealt with the issue
of jurors that were kept in the panel over the objection of the defense,
who alleged that they were unwilling to consider all three of the potential
sentences.
100
The court stated that “[t]he same standard applies where a
juror is allegedly unqualified based on his or her disfavor toward a life
sentence with or without parole.”
101
The court then reviewed the entire
record of challenged statements made by those jurors and found no abuse
of discretion in the court’s decision to permit them to remain on the panel
prior to the exercise of peremptory strikes.
102
The same standards with
regard to excusing for cause and/or qualifying jurors who purportedly can
consider all of the sentencing options were addressed and applied in
another death penalty case decided in the same year, Martin v. State.
103
More importantly, however, in Willis v. State the court reversed
longstanding precedent.
104
Prior to Willis, if a defendant was forced to
use one of his or her peremptory strikes to remove a juror who had not
been struck for cause on its motion, it was deemed “per se harmful error”
91. Humphreys v. State, 287 Ga. 63, 71, 694 S.E.2d 316, 327 (2010).
92. 304 Ga. 686, 820 S.E.2d 640 (2018).
93. Id.
94. Id. at 698, 820 S.E.2d at 653.
95. Id. at 698–700, 820 S.E.2d at 653–54.
96. Humphreys, 287 Ga. at 72, 694 S.E.2d at 328.
97. Willis, 304 Ga. at 698–700, 820 S.E.2d at 653–54.
98. Id.
99. 296 Ga. 598, 769 S.E.2d 337 (2015).
100. Id. at 608, 769S.E.2d at 347.
101. Id. (citing Lance v. State, 275 Ga. 11, 14–15, 560 S.E.2d 663, 671 (2002)).
102. Id. at 608–10, 769 S.E.2d at 347–48.
103. 298 Ga. 259, 779 S.E.2d 342 (2015).
104. 304 Ga. 686, 820 S.E.2d 640 (2018).
102 MERCER LAW REVIEW Vol. 75
and would require reversal upon a conviction.
105
The logic behind this
precedent is based upon the assumption that requiring a defendant to
use a peremptory strike on a juror who should have been struck for cause,
and subsequently their peremptory challenges are exhausted, does not
permit them to use a peremptory strike on a juror they otherwise would
have struck.
106
That would defeat the purpose of a peremptory challenge.
In Willis, the court reversed this precedent and held that it is harmless
error when a defendant is forced to exercise a peremptory challenge on a
juror the trial court erroneously failed to excuse.
107
The new rule, which
lowers the more exacting standard previously applied to this situation,
requires the defense to show that one of the challenged jurors ultimately
served on the jury and was unqualified.
108
The court’s decision raises the
risk that a challenged juror will eventually serve on a jury if the defense
is forced to exhaust its peremptory challenges on jurors who should be
excused for cause.
D. Intellectual Disability and the Reasonable Doubt Standard in
Georgia
The intellectually disabled are categorically excluded from the death
penalty.
109
Though this has been the law since 2002, the Supreme Court
at that time left it to the states to determine the procedural mechanisms
as to how to identify and exclude the intellectually disabled from capital
punishment.
110
Georgia passed a law protecting the intellectually
disabled in 1988 and required that defendants prove their intellectual
disability beyond a reasonable doubt.
111
This standard has been
repeatedly upheld as constitutional, and the last constitutional challenge
to the burden of proof occurred in Young v. State
112
in 2021.
113
Notably,
no defendant has ever proven his or her intellectual disability in Georgia
for an intentional murder in which the death penalty was sought since
105. Fortson v. State, 277 Ga. 164, 166, 587 S.E.2d 39, 41 (2003).
106. Willis, 304 Ga. at 702–03, 820 S.E.2d at 656.
107. Id. at 701–02, 820 S.E.2d at 655.
108. Id. at 707, 820 S.E.2d at 659.
109. Atkins v. Virginia, 536 U.S. 304 (2002).
110. Id.
111. O.C.G.A. § 17-7-131(j) (1988).
112. 312 Ga. 71, 860 S.E.2d 746 (2021).
113. Id.
2023 CAPITAL PUNISHMENT 103
the passage of the statute in 1988.
114
Georgia is the only state in the
nation that holds the intellectually disabled to this standard.
115
Rodney Young became the latest defendant to challenge the beyond a
reasonable doubt standard in 2021.
116
He argued before the Supreme
Court of Georgia that to place the highest burden of proof upon the
defendant in order to exempt themselves from the death penalty created
too high a risk that an intellectually disabled person would be
executed.
117
Researchers who have studied the issue recently in Georgia
have found that every defendant who claimed that they were
intellectually disabled and had substantial proof to validate those claims
failed to convince a jury.
118
Proof of those claims included verifiable
histories of serious adaptive deficits and psychological and IQ testing
that demonstrated brain functioning at a level of intellectual
disability.
119
In light of these facts, serious doubts have been raised about
the constitutionality of requiring a defendant to meet an impossible
burden of proof to establish exemption from the death penalty.
In Young, the Supreme Court of Georgia denied those claims and
upheld the burden of proof as constitutional.
120
First, the court held that
the burden of proof is purely a procedural aspect of the statute in question
and based this finding on reasoning from cases that rely on the Supreme
Court not establishing any specific procedural standards in Atkins at the
time of that decision.
121
It also held that due to the Supreme Court of the
United States’ clear delegation to the states of the responsibility for
determining the procedures by which a person could establish
intellectual disability, the burden of proof of beyond a reasonable doubt
is not unconstitutional.
122
This standard was addressed one year later in
Brookins v. State,
123
another case in which a claim of intellectual
disability was made.
124
Interestingly, however, in that case both sides
114. Lauren Sudeall Lucas, An Empirical Assessment of Georgia’s Beyond a Reasonable
Doubt Standard to Determine Intellectual Disability in Capital Cases, 33 GA. ST. UNIV. L.
REV. 553, 554 (2017).
115. Id. at 554–55.
116. Young, 312 Ga. 71, 860 S.E.2d 746.
117. Id. at 87, 860 S.E.2d at 768.
118. See LUCAS, supra note 115, at 584–605 (providing a narrative of representative
Georgia cases since 1988 that raise serious questions about the application of the statute
at trial).
119. See LUCAS, supra note 115, at 584–605.
120. 312 Ga. at 87, 860 S.E.2d at 768.
121. Young, 312 Ga. at 89–90, 860 S.E.2d at 769–70; Atkins, 536 U.S. 304.
122. Id. at 90–91, 860 S.E.2d at 770–71.
123. 315 Ga. 86, 879 S.E.2d 466 (2022).
124. Id.
104 MERCER LAW REVIEW Vol. 75
agreed to put the question of intellectual disability to the jury using the
“preponderance of the evidence” standard, which the jury rejected.
125
Thus, the specific constitutional questions raised in Young were not
reached again. Georgia remains the only state in 2023 to require
defendants to meet this burden of proof of beyond a reasonable doubt to
establish exemption from capital punishment, and the Young decision
highlights the substantial barriers that exist statewide to prove an
exemption to the death penalty for the intellectually disabled.
E. Juror Misconduct
In Moody v. State,
126
juror misconduct issues were raised in the last
death penalty trial that resulted in a death sentence in Fulton County.
127
In that case, a juror did internet research on “sociopathic disorder” and
“antisocial personality disorder” based on overhearing conversations
regarding “mental instability” in the courtroom.
128
As a member of the
medical community (the juror was employed as a nurse) and having done
a psychiatric rotation in nursing school, the juror felt it necessary to
conduct this research in order to refresh his memory of what he learned
in nursing school.
129
Despite this impropriety, this juror informed the
other jurors that he had done this research. The juror claimed that his
fellow jurors felt it was necessary that he explain his indiscretion to the
judge.
130
Upon questioning from the trial court, the juror stated that he
had not discussed the substance of his research with any of the jurors.
131
The defense questioned the juror but was not permitted to ask what
any other jurors said to him in the presence of any other jurors about this
research; this was crucial information that was not fully developed by
counsel.
132
The juror was also not sure if he had said the term “antisocial
personality disorder,” but admitted that he had informed the jurors of his
research into “sociopaths.”
133
This juror was excused, but upon
questioning of the other jurors, the trial court did not permit questioning
125. Id. at 89, 879 S.E.2d at 474.
126. 316 Ga. 490, 888 S.E.2d 109 (2023).
127. Bill Rankin, Death Sentence Upheld for man who killed two College Park teenagers,
THE ATLANTA JOURNAL-CONSTITUTION, https://www.ajc.com/neighborhoods/north-fulton/
death-sentence-upheld-for-man-who-killed-two-college-park-teenagers/XJOWA2OWH
VDXRO4HKZP4BZ547E/ [https://perma.cc/5AAU-8GTQ] (last visited Sept. 3, 2023).
128. Moody, 316 Ga. at 517, 888 S.E.2d at 135–36.
129. Id.
130. Id. at 517, 888 S.E.2d at 136.
131. Id. at 517–18, 888 S.E.2d at 136.
132. Id. at 517, 888 S.E.2d at 136.
133. Id.
2023 CAPITAL PUNISHMENT 105
of what the excused juror said to the other jurors or what they said to
him.
134
The lack of this record was not addressed by the Supreme Court of
Georgia. However, the court did affirm the denial of the defense’s motion
for a mistrial based on the excused juror’s internet research.
135
This
ruling seems difficult to understand due to the fact that the trial court
did not permit defense counsel to fully develop the record with regard to
the juror conversations amongst themselves and with the juror who
performed the internet research. The court stated that the jurors’
answers to other questions “authorized” the trial court to find that the
juror did not share its research with the other jurors in the absence of
that information in the record because of action taken by the trial
court.
136
It seems as if the court read into the record words that were not there,
opting instead to rely on precedent, Jones v. State,
137
for the proposition
that “where the substance of the communication is established without
contradiction, the facts themselves may establish the lack of prejudice or
harm to the defendant,” and overlooked the fact that the substance of the
communications with other jurors was not there.
138
This holding and willingness to overlook the impact of internet
research by jurors in a capital case is especially concerning for defendants
in light of the fact that this jury had been death-qualified, i.e., willing to
consider all penalties, including the death penalty. If the record was more
thorough and reflected what the jurors had said to one another upon
discovering this internet research, since the research dealt with potential
defenses in mitigation that would be raised in the penalty phase, other
jurors could have also been excused if the offending juror had discussed
why he had done the research with them. This juror had made some
connections between what he heard in court and the terms that he chose
to research, which is why he was excused.
139
There was no record as to
whether this connection was shared with the other jurors. Although the
defense counsel raised this issue, the argument was ultimately rejected
by the court.
140
134. Id. at 518, 888 S.E.2d at 136.
135. Id. at 520, 888 S.E.2d at 138.
136. Id. at 520, 888 S.E.2d at 137–38.
137. Jones v. State, 258 Ga. 96, 366 S.E.2d 144 (1988).
138. Id. at 97, 366 S.E2d at 144.
139. Moody, 316 Ga. 517, 888 S.E2d at 135–36.
140. Id. at 519, 888 S.E.2d at 137.
106 MERCER LAW REVIEW Vol. 75
F. Impact of Newly Discovered Evidence
State v. Gates
141
involved the grant of an extraordinary motion for a
new trial in the case of Johnny Lee Gates, who had spent forty-three
years in prison, twenty-six of them on death row.
142
Mr. Gates was
granted a new trial after the discovery of untested items of physical
evidence that were tested using DNA probabilistic genotyping methods
that exonerated him.
143
Although at the time of this decision Mr. Gates
had been resentenced to life without parole, his case is important and
merits discussion because it illustrates a potential reason for the drop in
public support of the death penalty: the fear that jurors will sentence a
person who is innocent to the death penalty. This shift in public attitudes
underscores the need to confront the possibility that innocent persons
have been executed in Georgia throughout state history.
Mr. Gates, who is black, was also convicted and sentenced to death by
an all-white jury.
144
During this litigation, it was discovered that in six
other capital cases in that judicial circuit
145
in the same time period
(1975–1979), black defendants were tried by all-white juries.
146
The trial
court ordered the state to turn over its jury selection notes from those
trials, and it was discovered that prosecutors noted the race of potential
white jurors with a “W,” and black jurors with a “B” or a “N.”
147
This
practice uncovered and denounced by the Supreme Court of the United
States in Foster, as discussed previously in this Survey Article, shows the
prevalence of racial discrimination in capital cases (and non-capital
cases) during that time period in Georgia courtrooms.
148
In 2015, attorneys attempted to trace items of physical evidence in Mr.
Gates’s case, since the events had occurred in 1976 and DNA testing was
not available at that time.
149
The victim in the case had been sexually
assaulted, shot, and killed, with her hands bound behind her and
neckties tied around her face. Interns working for Mr. Gates’ attorneys
located a bathrobe belt and four neckties at the district attorney’s office
that had been found on the victim’s body and introduced at trial. DNA
testing was granted by the trial court, and Mr. Gates was excluded as a
141. 308 Ga. 238, 840 S.E.2d 437 (2020).
142. Id. at 238, 840 S.E.2d at 439.
143. Id. at 248, 840 S.E.2d at 446.
144. Id. at 239, 840 S.E.2d at 439–40.
145. Id. at 248, 840 S.E.2d at 446. The Chattahoochee Judicial Circuit includes
Columbus, Georgia, and several other outlying counties.
146. Id.
147. Id.
148. See Foster, 578 U.S. 488.
149. Gates, 308 Ga. at 247, 840 S.E.2d at 445.
2023 CAPITAL PUNISHMENT 107
contributor to a three-person mixture on the belt and one of the ties. This
belt and tie was used to bind the victim’s hands and was a crucial part of
the State’s theory that the person who had tied the victim’s hands was
also the murderer.
150
Upon analyzing the discovery of this new evidence of exclusion of Mr.
Gates’ DNA from the items, the court held that it was likely that at least
one juror would have had a reasonable doubt about Mr. Gates’s guilt.
151
The Supreme Court of Georgia affirmed the trial court’s decision to
vacate his conviction and sentence and remanded the case for a new
trial.
152
Mr. Gates ultimately resolved his case with an Alford plea,
153
with credit for time served and was released from prison after spending
twenty-six years on death row, forty-three years in prison in total.
154
G. Enforcement of Contract Suspending Executions
In State of Georgia v. Federal Defender Program Inc.,
155
the Supreme
Court of Georgia reviewed a contract dispute between the State and the
capital defense bar to stop executions during the COVID-19 pandemic.
156
The State of Georgia, represented by the Attorney General’s Office,
agreed that it would not seek execution warrants while the court-imposed
judicial emergency was still pending, while the Department of
Corrections did not permit legal visits, and while a vaccination was not
available to the general public.
157
The State agreed not to seek an
execution warrant until at least six months had elapsed from the
expiration of all three conditions of the agreement.
158
Surprisingly, in
this case, the State would later deny a contract existed despite language
confirming just such an agreement: “Yes, we confirm that’s the
150. Id. at 239–40, 247–48, 259–60, 840 S.E.2d at 440, 445–46, 453.
151. Id. at 260, 840 S.E.2d at 453.
152. Id. at 265, 840 S.E.2d at 456.
153. Former Georgia Death-Row Prisoner Reached Deal Securing His Release After
Serving 43 Years for a Murder He Says He Did Not Commit, DEATH PENALTY INFORMATION
CENTER, https://deathpenaltyinfo.org/news/former-georgia-death-row-prisoner-reaches
-deal-securing-his-release-after-serving-43-years-for-a-murder-he-says-he-did-not-commit
[https://perma.cc/QCQ8-NYLE] (last visited Sept. 3, 2023).
154. Georgia Supreme Court Rules in Favor of GIP Client Johnny Lee Gates!, GEORGIA
INNOCENCE PROJECT, https://www.georgiainnocenceproject.org/case-update/georgia-
supreme-court-rules-in-favor-of-gip-client-johnny-lee-gates/ [https://perma.cc/SM9C
-WMNM] (last visited Aug. 1, 2023).
155. 315 Ga. 319, 882 S.E.2d 257 (2022).
156. Id.
157. Id. at 321, 882 S.E.2d at 266.
158. Id.
108 MERCER LAW REVIEW Vol. 75
agreement.” from the Chief of the Capital Litigation Section of the
Attorney’s General’s Criminal Justice Division.
159
The agreement was sought during the pandemic because of limitations
on the ability of attorneys to visit their clients and prepare for clemency
proceedings.
160
Despite the express agreement, the State sought an
execution warrant for Virgil Presnell, a client of the Federal Defender
Office in Atlanta, before the expiration of six months after satisfaction of
all three conditions.
161
This case turned on the application of contract law
in granting an injunction preventing the execution of Mr. Presnell from
going forward.
162
However, this case is notable for its unanimous
concurrence, authored by Justice Bethel, taking an unusual step of
criticizing the State for its actions in the case.
163
Justice Bethel’s critique of the State was particularly harsh and
underscores that the actions of the Attorney General’s Office affects the
credibility of state government, which, in turn, can lead to a further
decline in public support of the death penalty.
Though it may prove inconvenient, uncomfortable, or undesirable to
the State, when both a Deputy and Senior Assistant Attorney General
are on record agreeing that the State will do or not do something . . .
everyone should be able to count on the State to honor its word . . . .
The State should keep its promises because the People of Georgia, who
are the very source of the State’s sovereignty, are owed a government
that honors its commitments . . . . It’s a shame anyone thought it
appropriate to ask [to permit the State to avoid its commitments].
164
As of this writing, the last execution in Georgia was in January 2020,
prior to the COVID-19 pandemic.
165
IV. CONCLUSION
The statistics show that, with only two death sentences in the past
nine years and with one of those death sentences for a person who
represented herself and presented no defense or arguments in favor of a
159. Id. at 321–22, 882 S.E.2d at 266.
160. Id. at 319–20, 882 S.E.2d at 265.
161. Id. at 322, 882 S.E.2d at 266–67.
162. Id. at 322, 882 S.E.2d at 267.
163. Id. at 355, 882 S.E.2d at 288 (Bethel, J., concurring in part).
164. Id. at 356, 882 S.E.2d at 289.
165. Executions by State and Year, DEATH PENALTY INFORMATION CENTER, https://death
penaltyinfo.org/executions/executions-overview/executions-by-state-and-year [https://
perma.cc/8MNQ-T7YV] (last visited Aug. 1, 2023).
2023 CAPITAL PUNISHMENT 109
life sentence,
166
that the death penalty is on the decline in Georgia for a
multitude of reasons. The Supreme Court of Georgia has scrutinized
cases that have resulted in death sentences, and in cases where that level
of scrutiny has not occurred, state post-conviction proceedings, as well as
federal courts, have provided the necessary level of scrutiny to ensure
that death sentences pass constitutional muster. As Justice Breyer in
Glossip noted, however, there exists “considerable evidence . . . that
[legislative] responses have not worked” to reform capital punishment,
leaving the public to make up its own mind regarding the irreversible
punishment.
167
For the time being, in Georgia, that support is slowly, but
surely, dropping.
166. Rankin, supra note 32.
167. Glossip, 576 U.S. at 945 (Breyer, J., dissenting specially).
