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Georgia's dysfunctional death penalty

Troy Davis' execution was the fifth scheduled this year. Each raises hard questions about the death penalty.

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Defense attorney Steve Bright, who arguably knows more about the death penalty than anyone in Georgia, likes to tell a story about former Virginia Gov. Douglas Wilder.

In the four years Wilder was the state's top executive, he commuted only two death sentences. One was for a man named Earl Washington. On Wilder's last day in office, Jan. 14, 1994, he signed an order that stated: "A review of the record ... demonstrate[s] that Earl Washington Jr. received a fair trial and his appeals were well represented and considered. Recently, newly discovered evidence has become available as the result of the initiatives of the Attorney General's Office. It is clear from precedent in past cases ... that there are no provisions under Virginia law whereby such newly discovered evidence can now be considered by the courts."

The inability of the courts to consider new evidence – even in a death penalty case –troubled the governor. The hunch proved fortuitous. Eight years after Wilder commuted the sentence, DNA evidence showed that Washington was the wrong guy.

Now, a similar claim has been raised in Georgia, in the case of death row inmate Troy Davis. Davis' attorneys are desperate for the courts to consider new information that suggests Davis isn't guilty of his crime. So far, though, the evidence has been ruled inadmissible.

In late September, the U.S. Supreme Court hinted it might be willing to hear Davis' appeal. But a decision from the high court, expected Oct. 6, was delayed. [For updates, click here.]

Bright, who heads the Atlanta-based Southern Center for Human Rights and has taught law at Harvard and Yale, believes the case of Earl Washington Jr. – and perhaps, one day, Troy Davis – shows the death penalty is deeply flawed.

But Bright says that beyond the stories of innocent men condemned to die, the state's seemingly more straightforward death sentences have issues, too. And with five Georgia executions scheduled in 2008 – more than were carried out in any year since 1987 – there's a lesson to be learned from each of the condemned.

"When people think about it in the abstract, they think the death penalty is appropriate for these terrible crimes," Bright says. "And yet when the cases are examined up close, there are always problems."

William Earl Lynd

Execution date: May 6

In the fall of 2007, attorneys for death row inmate William Earl Lynd caught a lucky break. Their client had run out of appeals and an execution date was about to be set. Death seemed all but certain. Then, the U.S. Supreme Court decided to review a case out of Kentucky that challenged the constitutionality of lethal injection. While the case was under consideration, lethal injections across the country would be put on hold.

For the time being, Lynd was spared.

Georgia lawmakers voted in 1999 to switch its execution method from the archaic electric chair to a seemingly more humane cocktail of drugs administered intravenously. The switch originally applied only to inmates convicted after 2000, but was later retroacted to cover all 127 inmates on Georgia's death row at the time.

Georgia had been slow to join the lethal-injection trend. In fact, it was one of the last three states to cling to the electric chair. In other ways, however, Georgia has been at the nation's forefront when it comes to all things death penalty.

In 1976, after an unprecedented four-year ban on executions, it was Georgia's statute that the U.S. Supreme Court upheld – thereby reintroducing the death penalty across the country.

And earlier this year, after the high court lifted its six-month moratorium on lethal injection – the justices determined that the drug cocktail did not constitute "cruel and unusual punishment" – Georgia earned another milestone. It was the first state to schedule an execution after the ban. Lynd's time was almost up.

Lynd was sentenced to death for the 1988 murder of his live-in girlfriend, Virginia "Ginger" Moore. High on a mix of Valium, marijuana and booze, Lynd shot Moore in the face in the bedroom of their home, then retreated to the porch. As he smoked a cigarette and allegedly contemplated suicide, Moore regained consciousness and staggered outside. Lynd shot her in the face again, then put her in the trunk of his car. After hearing her thump around, he stopped the car, popped the trunk and shot her a third time. He drove to some nearby woods in Tift County, where he buried her in a shallow grave.

After fleeing to Ohio, Lynd allegedly shot and killed another woman.

The timing of the gunshots was crucial to the case. If Moore was in fact alive after Lynd put her in the trunk, that would constitute kidnapping. And kidnapping is one of several "aggravating circumstances" that can qualify a murder defendant for the death penalty.

To Bright, the way that prosecutors calculate aggravating circumstances can be completely out of whack. Some cases are far more death-penalty-eligible than others – and yet capital punishment isn't sought for those defendants.

"Look at all the people serving sentences for murder," he says. "They're not serving death sentences. And there certainly are more aggravated cases than these [death penalty ones]. It's totally arbitrary."

Twenty years after Moore's murder – and three weeks after the lethal injection ban was lifted – Lynd's last hope for clemency, the state Board of Pardons and Paroles, considered testimony from two witnesses who said the second gunshot wound, the one on the porch, likely killed Moore. By that logic, the kidnapping claim would be moot. And the murder would be far less "aggravated."

But the board was not persuaded. The request for clemency was denied. And the following day, May 6, Lynd was put to death – ushering in a new round of lethal injections nationwide, and a renewed vigor for executions in Georgia in particular.

Samuel David Crowe

Execution date: May 22

On a spring night in 1988, Samuel David Crowe drove his wife's car to Wickes Lumber Company in Douglasville. Crowe used to work there, and his wife still did. The store's manager, Joe Pala, was closing up shop. He let Crowe in.

A short while later, when Pala's back was turned, Crowe shot him. The bullet penetrated his lung. At some point, Crowe also beat him in the head with a paint can and a crowbar. Pala bled to death. Crowe grabbed the money that was in the shop – $1,160 – and fled.

Soon after, he was arrested. He confessed to the murder and agreed to plead guilty. A jury would decide whether he'd receive a sentence of life without parole or death. It chose the latter.

The case seemed fairly straightforward. But when Crowe's sentence was appealed, his new attorney, Mike Mears, unearthed some interesting allegations.

According to testimony presented during Mears' motion for a new trial, Crowe's motive wasn't robbery. It was revenge. Pala allegedly had been having an affair with Crowe's wife. Crowe only made it look like a robbery.

"That's terrible," says Mears, who as former head of the Georgia Multi-County Public Defenders' Office, monitored every capital case in the state. "But it's not a death penalty case."

But the real shocker was that then-Sheriff Earl Lee allegedly had told Crowe that if he fired his attorneys and pleaded guilty, the judge would spare him the death penalty. The sheriff even had Crowe call the judge at home to ask him himself –a call that Mears said he substantiated by pulling records of Crowe's phone calls from jail.

"I subpoenaed Earl Lee to the stand, and I asked him did he say that," Mears recalled. "And he said, 'Well, probably.'

"Then I put the judge on the stand. And I said, 'Judge, did you talk to David Crowe?' And he said, 'Yeah, I did. I thought it was somebody else, though. And I told him just do whatever the sheriff tells him to do and he'll be OK.'"

Crowe's death sentence was upheld.

Twenty years after the murder of Pala, Crowe's attorneys made one last attempt to save his life. On the morning of his execution date, they met with members of the state Board of Pardons and Paroles, which has the unusual power of being able to commute death sentences – in most states, the pardons and paroles board only issues recommendations to the governor. Crowe's attorneys presented evidence showing that their client was a model inmate who felt profound remorse for his crime.

The board keeps a lengthy file on every death row inmate. Once an execution date is set, the board typically meets with representatives for the condemned, as well as the district attorney's office that prosecuted the case, and the victim's family. Board members also interview the inmate. The meetings are closed to the public, to keep political pressure out of the process.

After hearing from both sides, each of the five board members casts a confidential vote to commute the sentence or allow the execution to go forward. Three votes or more determine an inmate's fate.

Three hours before Crowe was scheduled to die, the board voted to spare him. It was only the third death sentence, out of a total 24, to be commuted in Georgia since the mid-'90s.

No insight into the board's decision was offered, aside from a terse statement: "After careful and exhaustive consideration of the requests, the Board voted to grant clemency. The Board voted to commute the sentence to life without parole."

Mears believes the alleged promise made to Crowe by the sheriff, and not just Crowe's remorse and model behavior, helped build the case for clemency.

"This is just my guess now," Mears says, "but looking at how he was basically tricked into pleading guilty and waiving his jury trial, I think that had to have something to do with it."

Curtis Osborne

Execution date: June 4

Georgia has a history of inadequately funding death penalty cases. It also has a history of racism. In the case of Curtis Osborne, those two histories appear to have converged.

Osborne was convicted of the 1990 murder of Arthur Jones, a man to whom he owed $400, and Jones' girlfriend, Linda Seaborne. The couple was sitting in the front seat of their car, and Osborne, seated in the back, shot them both from behind. The killings were senseless. Osborne admitted as much.

"Sometimes things happen out of emotion and not just deliberation," he told the jury during the sentencing phase of his trial. "I want to say I'm sorry, and I just ask you people to have mercy on me."

They didn't. Osborne was sentenced to death.

But evidence unearthed later suggests that Osborne might have been spared the death penalty –had he been made aware of a plea deal offered by the government. Under the alleged deal, Osborne would have received a life without parole sentence. According to Osborne's appeals attorney, however, the man who represented him at trial, Johnny Mostiler, never told Osborne about the offer. The reason? Mostiler, who was Spalding County's only public defender, allegedly was a racist.

At the time leading up to Osborne's trial, Mostiler also represented another murder defendant, Gerald Huey. Huey is white. Osborne was black. Years later, in a sworn affidavit, Huey described how surprised he was at the way Mostiler described Osborne.

"The first time I recall Mr. Mostiler saying anything about Curtis Osborne's case was when he said, 'The little nigger deserves the death penalty,'" Huey said in the affidavit. "I was shocked, because I knew that Mr. Osborne had not gone to trial yet."

That wasn't the only time Mostiler allegedly bad-mouthed the man whose life he was supposed to save. According to Huey: "I recall Mr. Mostiler telling me that I wouldn't believe the amount of money he was going to spend on my case. He said he was going to hire a private investigator and get expert witnesses. He said the money he would spend on me was going to be a lot more than he would spend on Mr. Osborne, because 'that little nigger deserves the chair.'"

Another of Mostiler's clients later claimed that Mostiler had called him "one dumb nigger" after he refused a plea deal in 1992.

"I find it kind of hard, you know, to have an attorney to represent me when he uses those types of words," Derek Middlebrooks testified, after asking the court if he could have a new lawyer.

When the judge later asked Mostiler about Middlebrooks' allegation, he said he couldn't remember whether he said such a thing. He also said that he didn't "use those terms out in public."

Mostiler died in 2000, but not before denying that he withheld a plea offer from Osborne.

In May, Osborne's appeals attorney made one last plea –to the state Board of Pardons and Paroles –to spare his client's life due to Mostiler's allegedly egregious handling of the case. The request was denied, and on June 4, Osborne became the second Georgia inmate to be executed this year.

Jack Alderman

Execution date: Sept. 16

As with William Earl Lynd, Samuel David Crowe and Curtis Osborne, there was no reason to question Jack Alderman's guilt. The evidence clearly showed that Alderman, with the help of his friend, John Arthur Brown, killed his wife, Barbara.

Two days before the murder, Alderman called Brown and asked him to meet him at the Piggly Wiggly supermarket where he worked. Brown later testified that Alderman wanted help to make his wife's death look like an accident, and he offered half of her life-insurance policy to Brown for his troubles.

When Brown showed up at the couple's Savannah apartment two nights later, he complied with Alderman's instructions to strike his wife in the head with a wrench. Brown later said Alderman then smothered her, and the two men submerged her in the bathtub. After leaving the scene to go drinking, the men returned to the apartment, put the body in the trunk of Alderman's Pontiac, drove to a creek, put the body in the driver's seat and pushed the car into the water.

Alderman later provided a rather implausible version of events. He said he happened to drive by the creek and saw the Pontiac with his wife inside –then he panicked, fled the scene, and mentally blocked out the discovery of the dead body.

Both men were sentenced to death.

Brown's attorneys later argued that Brown embellished Alderman's role in the killing after he agreed to cooperate with the government. Brown's death sentence was later overturned, and he was released from prison after serving 12 years.

But according to several death penalty experts, the real travesty in the Alderman case wasn't the disparity between Brown's and Alderman's fate – though they claim the issue of co-defendants cutting deals against each other in capital cases is troubling.

Instead, the problem with Alderman is the length of time he spent on death row. Barbara Alderman was murdered in 1974. Thirty-four years later, Alderman was still awaiting death – making him the longest-running death-row inhabitant in Georgia.

On the surface, it would appear that spending more than three decades on death row is hardly different from Alderman's likeliest alternative: a sentence of life in prison without parole. The difference, according to Mears, is the disparity between life on death row and life in general population.

On death row, inmates are completely isolated from one another. They have no option to work –not even the most menial task. They simply sit, alone, and wait – and wait and wait.

In regular prison, inmates can create some semblance of a life behind bars. Not so on death row, according to Mears. "One of my clients on death row once said, 'Ten years here is like 50 years in a regular prison.'"

On Sept. 16, Alderman had run out of appeals. The Pardons and Paroles Board denied clemency. He didn't make a special request for a last meal, and barely touched the food he was given. Nor did he make a final comment. A chaplain offered a prayer: "Jack, may Christ free you from excruciating pain."

Witnesses later said Alderman was calm when the needle was placed in his arm. In the minutes before his death, he smiled.

It was a quiet death –one that preceded the media storm that was erupting over the next execution scheduled in Georgia.

Troy Davis

Execution date: Sept. 23

When Troy Davis stood trial in 1991 for the senseless killing of Savannah police officer Mark MacPhail, a parade of witnesses pointed to him as the shooter. In the absence of forensic evidence –a murder weapon, a fingerprint or a trace of DNA left behind –those nine witnesses were enough to convince a jury that Davis committed the murder, and that he deserved to die.

In the years following the trial, however, seven of those nine witnesses have recanted their testimony. Most say they were pressured by police to identify Davis.

The two witnesses who stood by their testimony have issues, too. One of them initially told police that he didn't see who shot MacPhail. The other witness, Sylvester "Redd" Coles, went to the police station the day after the shooting and, accompanied by his attorney, tipped off investigators that Davis was their man. Years later, Coles allegedly told three people that he, in fact, had killed the officer.

During the 17 years that followed Davis' death sentence, the courts repeatedly ruled that the new evidence was presented too late. Last year, Davis got an execution date. His only hope was for an intervention by the Georgia Supreme Court, the U.S. Supreme Court, or the state Board of Pardons and Paroles –the same board that, just four months earlier, commuted the sentence of Samuel David Crowe.

"I had a feeling that once [Crowe] had been commuted, it would be very difficult politically for the board to commute anybody else," Bright now says. "There's only so many commutations that are politically possible."

Still, when Davis' execution date had first been set back in the fall of 2007, the board had come to his rescue. Per the board's request, a stay of execution was granted – less than 24 hours before Davis was to be killed.

At the time, the board signed an order that indicated it was troubled by Davis' case. "The members of the Georgia Board of Pardons and Paroles will not allow an execution to proceed in this State unless and until its members are convinced that there is not doubt as to the guilt of the accused."

Shortly thereafter, the state Supreme Court agreed to hear Davis' most recent appeal.

Then, in 2008, the Georgia Supreme Court and the Pardons and Paroles Board dealt Davis two serious blows. In a 4-3 ruling, the state Supreme Court decided not to allow the recanted testimony to be considered. The decision, which basically came down to a legal technicality, stated that unless the original testimony was "the purest fabrication," the recantations weren't admissible.

Chief Justice Leah Sears, writing for the dissent, was dismayed at the ruling. "I believe that this case illustrates that this Court's approach ... is overly rigid and fails to allow an adequate inquiry into the fundamental question, which is whether or not an innocent person might have been convicted or even, as in this case, might be put to death."

The state set Davis' execution for Sept. 23. His attorneys were confident that the Pardons and Paroles Board would do for Davis as it had done for Crowe. But four days before the execution, the board – which had heard from five of the recanting witnesses, as well as others who said Coles confessed to the crime – surprised Davis' supporters. It denied clemency.

On the afternoon of his execution date, Davis said goodbye to his family and readied himself for the death chamber. Less than two hours before he was scheduled to die, he was watching TV. He learned that the U.S. Supreme Court had issued a stay. The high court wanted time to decide whether to hear Davis' case.

"The argument we've made is that it's unconstitutional to execute an innocent man," says Davis' D.C.-based attorney, Jason Ewart. "It's an issue that the Supreme Court has looked at before, but has never definitively decided. This provides a good case for that."

On Oct. 6, the justices were expected to announce whether they'd hear the case. Instead, a special session was scheduled for Oct. 10 – a sign that the justices needed more time.

If the U.S. Supreme Court opts not to hear Davis' case, he will again be scheduled for execution. And there will be little hope left for an intervention.

UPDATE: On Oct. 13, the U.S. Supreme Court turned down Davis' appeal. Two days later, the state scheduled his execution for Oct. 27. 

MORE INFO: Check out our multi-media Troy Davis page for updates on the case, excerpts from the affidavits of trial witnesses who recanted their testimony, and slideshows and video of the grassroots movement to bring awareness to the case. 

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