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Evaluating Fairness and Accuracy in State Death Penalty Systems - GA, ABA, 2006

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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
CHAPTER ONE: AN OVERVIEW OF GEORGIA’S DEATH PENALTY SYSTEM ......................... 7
I.
II.
III.

DEMOGRAPHICS OF GEORGIA ’S DEATH R OW ................................................................................... 7
THE S TATUTORY EVOLUTION OF GEORGIA’S DEATH P ENALTY S CHEME.......................................... 9
THE P ROGRESSION OF A GEORGIA D EATH P ENALTY CASE FROM ARREST TO EXECUTION ............. 18

CHAPTER TWO: COLLECTION, PRESERVATION, AND TESTING OF DNA AND OTHER
TYPES OF EVIDENCE............................................................................................................................. 49
INTRODUCTION TO THE ISSUE ................................................................................................................... 49
I.
FACTUAL D ISCUSSION .................................................................................................................... 51
II. ANALYSIS ....................................................................................................................................... 61
CHAPTER THREE: LAW ENFORCEMENT IDENTIFICATIONS AND INTERROGATIONS... 67
INTRODUCTION TO THE ISSUE ................................................................................................................... 67
I.
FACTUAL D ISCUSSION .................................................................................................................... 69
II. ANALYSIS ....................................................................................................................................... 79
CHAPTER FOUR: CRIME LABORATORIES AND MEDICAL EXAMINER OFFICES .............. 91
INTRODUCTION TO THE ISSUE ................................................................................................................... 91
I.
FACTUAL D ISCUSSION .................................................................................................................... 92
II. ANALYSIS ..................................................................................................................................... 104
CHAPTER FIVE: PROSECUTORIAL PROFESSIONALISM.......................................................... 109
INTRODUCTION TO THE ISSUE ................................................................................................................. 109
I.
FACTUAL D ISCUSSION .................................................................................................................. 111
II. ANALYSIS ..................................................................................................................................... 122
CHAPTER SIX: DEFENSE SERVICES ............................................................................................... 131
INTRODUCTION TO THE ISSUE ................................................................................................................. 131
I.
FACTUAL D ISCUSSION .................................................................................................................. 133
II. ANALYSIS ..................................................................................................................................... 151
CHAPTER SEVEN: THE DIRECT APPEAL PROCESS ................................................................... 169
INTRODUCTION TO THE ISSUE ................................................................................................................. 169
I.
FACTUAL D ISCUSSION .................................................................................................................. 171
II. ANALYSIS ..................................................................................................................................... 176
CHAPTER EIGHT: STATE POST-CONVICTION PROCEEDINGS .............................................. 179
INTRODUCTION TO THE ISSUE ................................................................................................................. 179
I.
FACTUAL D ISCUSSION .................................................................................................................. 181
II. ANALYSIS ..................................................................................................................................... 190
CHAPTER NINE: CLEMENCY............................................................................................................ 199
INTRODUCTION TO THE ISSUE ................................................................................................................. 199
I.
FACTUAL D ISCUSSION .................................................................................................................. 201
II. ANALYSIS ..................................................................................................................................... 208
CHAPTER TEN: VOIR DIRE AND CAPITAL JURY INSTRUCTIONS ........................................ 219
INTRODUCTION TO THE ISSUE ................................................................................................................. 219

I.
II.

FACTUAL D ISCUSSION .................................................................................................................. 220
ANALYSIS ..................................................................................................................................... 251

CHAPTER ELEVEN: JUDICIAL INDEPENDENCE ......................................................................... 261
INTRODUCTION TO THE ISSUE ................................................................................................................. 261
I.
FACTUAL D ISCUSSION .................................................................................................................. 262
II. ANALYSIS ..................................................................................................................................... 272
CHAPTER TWELVE: THE TREATMENT OF RACIAL AND ETHNIC MINORITIES.............. 281
INTRODUCTION TO THE ISSUE ................................................................................................................. 281
I.
FACTUAL D ISCUSSION .................................................................................................................. 282
II. ANALYSIS ..................................................................................................................................... 284
CHAPTER THIRTEEN: MENTAL RETARDATION, MENTAL ILLNESS, AND THE DEATH
PENALTY................................................................................................................................................. 295
INTRODUCTION TO THE ISSUE ................................................................................................................. 295
I.
FACTUAL D ISCUSSION .................................................................................................................. 297
II. ANALYSIS - MENTAL R ETARDATION............................................................................................. 312
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 statefunded 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,
i

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.
ii

II. HIGHLIGHTS OF THE R EPORT
A. Overview
To assess fairness and accuracy in Georgia’s death penalty system, the Georgia Death
Penalty Assessment Team researched twelve issues: (1) collection, preservation, and
testing of DNA and other types of evidence; (2) law enforcement identifications and
interrogations; (3) crime laboratories and medical examiner offices; (4) prosecutorial
professionalism; (5) defense services; (6) the direct appeal process; (7) state postconviction proceedings; (8) clemency; (9) jury instructions; (10) judicial independence;
(11) the treatment of racial and ethnic minorities; and (12) mental retardation and mental
illness. The Georgia Death Penalty Assessment Report summarizes the research on each
issue and analyzes the level of compliance with the relevant ABA Recommendations.
B. Problem Areas
The assessment findings indicate a need to reform a number of areas within Georgia’s
death penalty system to ensure that it provides a fair and accurate system for every person
who faces the death penalty. The Georgia Death Penalty Assessment Team finds the
following problem areas most in need of reform:
 Inadequate Defense Counsel at Trial - Although the State of Georgia has recently
instituted a statewide capital defender system, which provides experienced
attorneys for indigent defendants in capital proceedings at trial and on direct
appeal, it is unclear whether funding will be available to enable it to function as
planned. Moreover, it must be noted that the trials and direct appeals of
defendants presently on death row preceded the creation of the statewide capital
defender system; those defendants may or may not have had adequate counsel.
 Lack of Defense Counsel for State Habeas Corpus Proceedings - The State of
Georgia is virtually alone in not providing indigent defendants sentenced to death
with counsel for state habeas proceedings. The lack of counsel on state habeas,
particularly when combined with the case law that allows habeas judges to adopt
the state’s findings of fact verbatim, creates a situation where this critical
constitutional safeguard is so undermined as to be ineffective.
 Inadequate Proportionality Review - In conducting its proportionality review,
since 1994 the Georgia Supreme Court has looked only to cases where the death
penalty was imposed under similar circumstances, rather than also considering
cases in which the death penalty was sought but not imposed and cases in which
the death penalty could have been sought but was not. Proportionality review that
considers only cases where the death sentence was imposed is inherently limited
and incapable of uncovering potentially serious disparities—whether those
disparities are geographical, racial or ethnic, or attributable to any other
inappropriate factor.
 Inadequate Pattern Jury Instructions on Mitigation - Research establishes that not
all Georgia capital jurors understand what law governs their decision to impose or
iii

not impose a death sentence. Forty percent (specifically 40.5%) of interviewed
Georgia capital jurors did not understand that they could consider any evidence in
mitigation and 62.2% believed that the defense had to prove mitigating factors
beyond a reasonable doubt. This confusion possibly can be attributed to the fact
that the suggested pattern jury instructions provide little to no guidance on
mitigating circumstances. The instructions do not list any factors that might be
considered in mitigation, explain the burden of proof, or explain that jurors need
not be unanimous in finding mitigating circumstances. Death sentences resulting
from juror confusion or mistake are not tolerable.
 Racial Disparities in Georgia Capital Sentencing - Both the race of the defendant
and the race of the victim predict who is sentenced to death in the State of
Georgia, with white suspects and those who kill white victims more likely to be
sentenced to death than black suspects and those who kill black victims.1 “The
data show that among all homicides with known suspects, those suspected of
killing whites are 4.56 times as likely to be sentenced to death as those who are
suspected of killing blacks.”2 Based on this data, race clearly matters in capital
sentencing in Georgia.
 Inappropriate Burden of Proof for Mentally Retarded Defendants Facing the
Death Penalty - “Beyond a reasonable doubt” is the highest standard of proof
known to American law. Of the twenty-six states that have adopted statutes
prohibiting the execution of the mentally retarded, Georgia is the only state that
requires the defendant to prove his/her mental retardation beyond a reasonable
doubt.3 The effect of this is exacerbated by the failure of the Georgia Suggested
Pattern Jury Instructions to explain that mental retardation is a mitigating
circumstance that may be considered by the jury during the sentencing phase of a
capital trial.
 Death Penalty for Felony Murder - Georgia law allows for the imposition of a
death sentence when the defendant has been convicted either of malice murder or
of felony murder. Malice murders are those murders committed with express
malice (intent to kill) or implied malice (an abandoned and malignant heart/a
reckless disregard for human life). Felony murder is a killing in the commission
of a felony irrespective of malice; a conviction of felony murder does not require
a finding of an intent to kill, or of a reckless indifference to life. The death
penalty should only be imposed where the jury has found the defendant acted with
either express or implied malice.

1

See Raymond Paternoster, Glen Pierce, & Michael Radelet, Race and Death Sentencing in Georgia,
1989-1998, in AMERICAN B AR ASSOCIATION , EVALUATING F AIRNESS AND ACCURACY IN S TATE DEATH
PENALTY S YSTEMS: THE GEORGIA DEATH PENALTY ASSESSMENT REPORT app., at S-T (2006).
2
Id.
3
John H. Blume, Summaries of Relevant Cases and Legislation Resulting From Atkins v. Virginia, 536
U.S. 304 (2002), at 48-50 (Dec. 2, 2005) (unpublished manuscript, on file with author). We note that in
cases in which the capital trial’s guilt/innocence phase took place before July 1, 1988, the State of Georgia
requires the defendant to establish his/her mental retardation by a preponderance of the evidence.

iv

C. Georgia Death Penalty Assessment Team Recommendations
In addition to endorsing the recommendations found in each section of the report, the
Georgia Death Penalty Assessment Team makes the following recommendations:
1. The State of Georgia should sponsor a study of the administration of its death
penalty system to determine the existence or non-existence of unacceptable
disparities, racial, geographic, or otherwise.
2. In order to make the concept of proportionality meaningful and to address the
racial disparities indicated by the available data, the State of Georgia should
establish a statewide clearinghouse to review decisions to seek the death penalty.
This clearinghouse should also collect data on all death-eligible cases and make
this data available to the Georgia Supreme Court for use in conducting its
proportionality review.
3. The State of Georgia should restrict death penalty cases to those where the
defendant is found guilty of malice murder, either express or implied.
Despite the best efforts of a multitude of principled and thoughtful actors who play roles
in the criminal justice process in the State of Georgia, our research establishes that at this
point in time, the State cannot ensure that fairness and accuracy are the hallmark of every
case in which the death penalty is sought or imposed. Because of that, it is the
conclusion of the members of the Georgia Death Penalty Assessment Team, except Harry
D. Dixon, Jr., that the State of Georgia should impose a moratorium on both capital
prosecutions and on executions until such time as the State is able to appropriately
address the problem areas identified throughout this Report, and in particular in the
Executive Summary. Although Mr. Dixon agrees with a number of the findings and the
recommendations of the report, he does not agree that a moratorium should be imposed
on either prosecutions or executions.
The American Bar Association, while calling for a moratorium on executions, has not
adopted policies on the issues discussed in recommendations #2 and 3 nor has it endorsed
a moratorium on capital prosecutions.
III. SUMMARY OF THE REPORT
Chapter One: An Overview of Georgia’s Death Penalty System
In this Chapter, we examined the demographics of Georgia’s death row, the statutory
evolution of Georgia’s death penalty scheme, and the progression of an ordinary death
penalty case through Georgia’s system from arrest to execution.
Chapter Two: Collection, Preservation and Testing of DNA and Other Types of Evidence
DNA testing has proved to be a useful law enforcement tool to establish guilt as well as
innocence. The availability and utility of DNA testing, however, depends on the state’s
v

laws and on its law enforcement agencies’ policies and procedures concerning the
collection, preservation, and testing of biological evidence. In this Chapter, we examined
Georgia’s laws, procedures, and practices concerning not only DNA testing, but also the
collection and preservation of all forms of biological evidence, and we assessed whether
Georgia complies with the ABA’s policies on the collection, preservation, and testing of
DNA and other types of evidence.
A summary of Georgia’s overall compliance with the ABA’s policies on the collection,
preservation, and testing of DNA and other types of evidence is illustrated in the chart
below.4

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

In
Compliance

Partially in
Compliance 5

Recommendation
Recommendation #1: Preserve all biological
evidence for as long as the defendant remains
incarcerated.
Recommendation #2: Defendants and inmates
should have access to biological evidence, upon
request, and be able to seek appropriate relief
notwithstanding any other provision of the law.

Not in
Compliance

Insufficient
Information
to Determine
Statewide
Compliance 6

Not
Applicable

X

X

(Chart Continued Below)

4

Where necessary, the recommendations contained in this chart and all subsequent charts were
condensed to accommodate spatial concerns. The condensed recommendations are not substantively
different from the recommendations contained in the Analysis section of each Chapter.
5
Given that a majority of the ABA’s recommendations are composed of several parts, we used the term
“partially in compliance” to refer to instances in which the State of Georgia meets a portion, but not all, of
the recommendation. This definition applies to all subsequent charts contained in this Executive Summary.
6
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 welcome notification of any
omissions in this report so that they may be corrected in any future reprints.

vi

Collection, Preservation, and Testing of
DNA and Other Types of Evidence (Con’t.)
Compliance

In
Compliance

Partially in
Compliance

Recommendation

Recommendation #3: Law enforcement
agencies should establish and enforce written
procedures and policies governing the
preservation of biological evidence.
Recommendation #4: Law enforcement
agencies should provide training and
disciplinary procedures to ensure preparedness
and accountability.
Recommendation #5: Ensure that adequate
opportunity exists for citizens and investigative
personnel to report misconduct in investigations.
Recommendation #6: Provide adequate
funding to ensure the proper preservation and
testing of biological evidence.

Not in
Compliance

Insufficient
Information
to Determine
Statewide
Compliance

Not
Applicable

X
X
X
X

The State of Georgia requires governmental entities in possession of any physical
evidence from a criminal case to preserve all biological material until a defendant is
executed and allows inmates convicted of a capital felony, except those convicted of
treason or aircraft hijacking, to request post-conviction DNA testing. However, certain
procedural ambiguities and restrictions make it difficult for these inmates to obtain
hearings on post-conviction DNA motions and/or relief based on the DNA test results.
These procedural ambiguities and restrictions are particularly problematic and include:
 The appropriate mechanism for requesting post-conviction DNA testing—
either through an extraordinary motion for a new trial or a motion requesting
post-conviction DNA testing filed separate and apart from any other motion—
is unclear;
 The time and numerical limitations for motions requesting post-conviction
DNA testing filed separate and apart from any other motion are unclear;
 Judges are not required to hold a hearing on motions requesting postconviction DNA testing (regardless of the form of the motion);
 Judges may grant a hearing on a motion for post-conviction DNA testing if,
and only if, the motion “states” two specific factors and “shows or provides”
eight other specific factors. This requirement is extremely restrictive, given
that inmates are not provided with counsel to assist with or to draft the
motion; and
 Inmates are limited to one extraordinary motion for a new trial, regardless of
the existence of exculpatory DNA evidence.

vii

To eliminate at least some of these ambiguities and restrictions, the State of Georgia
should clarify which mechanism is appropriate for requesting post-conviction DNA
testing and should outline its corresponding time and numerical limitations, if any.
Chapter Three: Law Enforcement Identifications and Interrogations
Eyewitness misidentification and false confessions are two of the leading causes of
wrongful convictions. Incorrect identifications and confessions can mislead police,
prosecutors, defense attorneys, judges and juries into focusing the case on one person, too
often resulting in an erroneous conviction. In order to reduce the number of convictions
of innocent persons and to ensure the integrity of the criminal justice process, the rate of
eyewitness misidentifications and of false confessions must be reduced. In this Chapter,
we reviewed Georgia’s laws, procedures, and practices on law enforcement
identifications and interrogations and assessed whether they comply with the ABA’s
policies on law enforcement identifications and interrogations.
A summary of Georgia’s overall compliance with the ABA’s policies on law enforcement
identifications and interrogations is illustrated in the chart below.
Law Enforcement Identifications and Interrogations
Compliance

In
Compliance

Partially in
Compliance

Recommendation

Recommendation #1: Law enforcement
agencies should adopt guidelines for
conducting lineups and photospreads in a
manner that maximizes their likely accuracy.
Every set of guidelines should address at least
the subjects, and should incorporate at least the
social scientific teachings and best practices,
set forth in the American Bar Associations
Best Practices for Promoting the Accuracy of
Eyewitness Identification Procedures.
Recommendation #2: Law enforcement officers
and prosecutors should receive periodic training
on how to implement the guidelines for
conducting lineups and photspreads, and training
on non-suggestive techniques for interviewing
witnesses.
Recommendation #3: Law enforcement agencies
and prosecutors offices should periodically
update the guidelines for conducting lineups and
photospreads to incorporate advances in social
scientific research and in the continuing lessons
of practical experience.

Not in
Compliance

Insufficient
Information
to
Determine
Statewide
Compliance

X

X

X

viii

Not
Applicable

Law Enforcement Identifications and Interrogations (Con’t.)
Compliance

In
Compliance

Partially in
Compliance

Recommendation

Recommendation #4: Videotape the entirety of
custodial interrogations at police precincts,
courthouses, detention centers, or other places
where suspects are held for questioning, or,
where videotaping is impractical, audiotape the
entirety of such custodial interrogations.
Recommendation #5: Ensure adequate funding
to ensure proper development, implementation,
and updating policies and procedures relating to
identifications and interrogations.
Recommendation #6: Courts should have the
discretion to allow a properly qualified expert to
testify both pre-trial and at trial on the factors
affecting eyewitness accuracy.
Recommendation #7: Whenever there has been
an identification of the defendant prior to trial,
and identity is a central issue in a case tried
before a jury, courts should use a specific
instruction, tailored to the needs of the
individual case, explaining the factors to be
considered in gauging lineup accuracy.

Not in
Compliance

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X
X
X

X

We commend the State of Georgia for taking certain measures which likely reduce the
risk of inaccurate eyewitness identifications and false confessions; for example:
 Law enforcement officers in Georgia are required to complete a basic training
course that instructs trainees on avoiding suggestive methods of interviewing
witnesses;
 At least seven police departments in Georgia regularly record the entirety of
custodial interrogations;
 Courts have the discretion to admit expert testimony regarding the accuracy of
eyewitness identifications; and
 The Georgia Suggested Pattern Jury Instructions in Criminal Cases contain an
instruction that provides the jury with factors to consider when determining the
reliability of an eyewitness identification.
Despite these measures, the State of Georgia does not require law enforcement agencies
to adopt procedures on identifications and interrogations. Certain Georgia governmental
offices and associations, however, do provide a framework for law enforcement agencies
to adopt procedures on identifications and interrogations.
ix

 The Georgia Association of Chiefs of Police has adopted the Sample Law
Enforcement Manual (SLEOM), which is derived from the Model Law
Enforcement Operations Manual authored by the Georgia Department of
Community Affairs. The SLEOM contains a number of specific procedures for
conducting lineups and photospreads, some of which are at least in partial
compliance with the ABA Recommendations. However, the extent to which
Georgia law enforcement agencies have adopted the SLEOM as a mandatory
internal procedure is unknown.
 A number of law enforcement agencies in Georgia have obtained certification
under the Georgia Association of Chiefs of Police Law Enforcement Certification
Program (GLECP) and/or under the Commission on Law Enforcement
Accreditation Standards for Law Enforcement Agencies (CALEA), which require
agencies to establish written directives on “conducting follow-up investigations,”
including identifying suspects. Neither the GLECP nor CALEA, however,
requires these agencies to adopt specific procedures on conducting lineups and
photospreads. It is possible that in complying with the GLECP and CALEA an
agency could create specific procedures for lineups and photospreads that are in
compliance with the ABA’s Recommendations, but we were unable to obtain the
written directives adopted by all law enforcement agencies to assess whether they
comply with the recommendations.
In order to ensure that all law enforcement agencies conduct lineups and photospreads in
a manner that maximizes their likely accuracy, the State of Georgia should require all law
enforcement agencies to adopt procedures on lineups and photospreads that are consistent
with the ABA’s recommendations.
Chapter Four: Crime Laboratories and Medical Examiner Offices
With courts’ increased reliance on forensic evidence and the questionable validity and
reliability of recent tests performed at a number of unaccredited and accredited crime
laboratories across the nation, the importance of crime laboratory and medical examiner
office accreditation, forensic and medical examiner certification, and adequate funding of
these laboratories and offices cannot be understated. In this Chapter, we examined these
issues as they pertain to Georgia and assessed whether Georgia’s laws, procedures, and
practices comply with the ABA’s policies on crime laboratories and medical examiner
offices.
A summary of Georgia’s overall compliance with the ABA’s policies on crime
laboratories and medical examiner offices is illustrated in the chart below.

x

Crime Laboratories and Medical Examiner Offices
Compliance

In
Compliance

Partially in
Compliance

Recommendation
Recommendation #1: Crime laboratories and
medical examiner offices should be accredited,
examiners should be certified, and procedures
should be standardized and published to
ensure the validity, reliability, and timely
analysis of forensic evidence.
Recommendation #2: Crime laboratories and
medical examiner offices should be adequately
funded.

Not in
Compliance

Insufficient
Information
to Determine
Statewide
Compliance

Not
Applicable

X
X

Georgia does not require crime laboratories or medical examiner offices to be accredited,
but all of the crime laboratories in the Division of Forensic Sciences of the Georgia
Bureau of Investigation (the Division) are accredited and are required by the accrediting
bodies and by Georgia statutory law to adopt written standards and procedures on
handling, preserving, and testing forensic evidence. Neither the accrediting bodies nor
Georgia statutory law, however, require Division crime laboratories to publish these
standards and procedures. In fact, Georgia statutory law explicitly exempts these
standards from the Georgia Administrative Procedure Act, which means that the
standards do not have to be published or made available for inspection in order to become
effective. Therefore, the contents of the Division standards and procedures are unknown.
In addition to the secrecy surrounding the Division standards and procedures, the
adequacy of the funding provided to Division crime laboratories is also in question. The
Division’s annual reports indicate that Division crime laboratories are experiencing
“budget shortfalls” and “budget constraints,” resulting in a personnel shortage and case
backlog. The Division’s 2004 annual report states: “The individual caseload for
scientists remains high, but the overall case production of the [Division] has fallen well
short of the demand for services. The result is a greatly increased backlog over the
previous year. The backlog is expected to be in excess of 36,000 cases by the end of
FY’05.”
Chapter Five: Prosecutorial Professionalism
The prosecutor plays a critical role in the criminal justice system. The character, quality,
and efficiency of the whole system is shaped in great measure by the manner in which the
prosecutor exercises his/her broad discretionary powers, especially in capital cases, where
prosecutors have enormous discretion deciding whether or not to seek the death penalty.

xi

In this Chapter, we examined Georgia’s laws, procedures, and practices relevant to
prosecutorial professionalism and assessed whether they comply with the ABA’s policies
on prosecutorial professionalism.
A summary of Georgia’s overall compliance with the ABA’s policies on prosecutorial
professionalism is illustrated in the chart below.
Prosecutorial Professionalism
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: Each prosecutor’s
office should have written polices governing
the exercise of prosecutorial discretion to
ensure the fair, efficient, and effective
enforcement of criminal law.
Recommendation #2: Each prosecutor’s office
should establish procedures and policies for
evaluating cases that rely on eyewitness
identification, confessions, or the testimony of
jailhouse snitches, informants, and other
witnesses who receive a benefit.
Recommendation #3: Prosecutors should fully
and timely comply with all legal, professional,
and ethical obligations to disclose to the defense
information, documents, and tangible objects and
should permit reasonable inspection, copying,
testing, and photographing of such disclosed
documents and tangible objects.
Recommendation #4: Each jurisdiction should
establish policies and procedures to ensure that
prosecutors and others under the control or
direction of prosecutors who engage in
misconduct of any kind are appropriately
disciplined, that any such misconduct is disclosed
to the criminal defendant in whose case it
occurred, and that the prejudicial impact of any
such misconduct is remedied.
Recommendation #5: Prosecutors should ensure
that law enforcement agencies, laboratories, and
other experts under their direction or control are
aware of and comply with their obligation to
inform prosecutors about potentially exculpatory
or mitigating evidence.
Recommendation #6: The jurisdiction should
provide funds for the effective training,
professional development, and continuing
education of all members of the prosecution
team, including training relevant to capital
prosecutions.

Insufficient
Information
to
Determine
Statewide
Compliance

X

X

X

X

X

X

xii

Not
Applicable

The State of Georgia does not require district attorney’s offices to establish policies on
the exercise of prosecutorial discretion or on evaluating cases that rely upon eyewitness
identification, confessions, or the testimony of jailhouse snitches, informants, and other
witnesses who receive a benefit. The State of Georgia, however, has taken certain
measures to promote the fair, efficient, and effective enforcement of criminal law, such
as:
 The State of Georgia has entrusted the State Bar of Georgia with investigating
grievances and disciplining members of the State Bar of Georgia, including
prosecutors.
 The State Bar of Georgia has established the Georgia Rules of Professional
Conduct, which address prosecutorial discretion in the context of the role and
responsibilities of prosecutors.
 The State of Georgia has established the Prosecuting Attorneys’ Council to assist
prosecuting attorneys throughout the state in a number of different ways,
including by offering courses discussing the concept of guided prosecutorial
discretion and capital litigation.
 The Georgia Supreme Court has held prosecutors responsible for disclosing not
only evidence of which s/he is aware, but also “favorable evidence known to
others acting on the government’s behalf.”
Chapter Six: Defense Services
Effective capital case representation requires substantial specialized training and
experience in the complex laws and procedures that govern a capital case, as well as full
and fair compensation to the lawyers who undertake capital cases and resources for
investigators and experts. Individual jurisdictions must address counsel representation
issues in a way that will ensure that all capital defendants receive effective representation
at all stages of their cases as an integral part of a fair justice system. In this Chapter, we
examined Georgia’s laws, procedures, and practices relevant to defense services and
assessed whether they comply with the ABA’s policies on defense services.
A summary of Georgia’s overall compliance with the ABA’s policies on defense services
is illustrated in the chart below.

xiii

Defense Services
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: Guideline 4.1 of the
ABA Guidelines on the Appointment and
Performance of Defense Counsel in Death
Penalty Cases (ABA Guidelines)—The
Defense Team and Supporting Services
Recommendation #2: Guideline 5.1 of the ABA
Guidelines—Qualifications of Defense Counsel
Recommendation #3: Guideline 3.1 of the ABA
Guidelines—Designation of a Responsible
Agency
Recommendation #4: Guideline 9.1 of the ABA
Guidelines—Funding and Compensation
Recommendation #5: Guideline 8.1 of the ABA
Guidelines—Training

Insufficient
Information
to Determine
Statewide
Compliance

Not
Applicable

X
X
X
X
X

Georgia’s new indigent legal representation system, which largely became effective on
January 1, 2005, has improved the delivery of defense services to capital defendants by
establishing a state-funded capital defenders office—the Office of the Georgia Capital
Defender (GCD)—that handles all death penalty cases, except in cases of a conflict of
interest. The system, nonetheless, falls short of being in full compliance with the ABA
Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty
Cases (ABA Guidelines) for a number of reasons:
 The State of Georgia does not guarantee counsel at every stage of the legal
proceedings. Indigent defendants charged with a capital felony for which the
death penalty is being sought have a right to appointed counsel at trial and on
direct appeal. However, indigent death-sentenced inmates are not entitled to
appointed counsel for state post-conviction or clemency proceedings.
 Georgia statutory law contains only minimal qualification requirements for
attorneys handling death penalty cases. We commend the Georgia Public
Defender Standards Council (GPDSC)—the body responsible for overseeing the
indigent legal representation system— for adopting the ABA Guidelines as the
GPDSC Death Penalty Defense Standards. However, the GPDSC adopted the
ABA Guidelines only where they do not contradict Georgia law and we have
been told that the standards have a “fiscal impact,” thus requiring ratification by
the General Assembly to become effective.
 The State of Georgia has failed to remove the judiciary from the attorney
appointment process.
 The amount of funding provided by the State of Georgia to GCD does not
appear to be sufficient to cover the costs associated with all of the pending death
xiv

penalty cases. The budget for the GCD was based on a projected forty death
penalty cases and an additional nine conflict death penalty cases per year.
However, as of early December 2005, forty-seven capital prosecutions—thirtyfive handled by GCD and twelve handled by a conflict defender—had
commenced. In addition to these new cases beginning in 2005, there were also
twelve capital cases already in the trial stage in which the GCD represents the
defendant.
Chapter Seven: The Direct Appeal Process
The direct appeal process in capital cases is designed to correct any errors in the trial
court’s findings of fact and law and to determine whether the trial court’s actions during
the guilt/innocence and sentencing phases of the trial were unlawful, excessively severe,
or an abuse of discretion. One of the best ways to ensure that the direct appeal process
works as it is intended is through meaningful comparative proportionality review, the
process through which a sentence of death is compared with sentences imposed on
similarly situated defendants to ensure that the sentence is not disproportionate. In this
Chapter, we examined Georgia’s laws, procedures, and practices relevant to the direct
appeal process and assessed whether they comply with the ABA’s policies on the direct
appeal process.
A summary of Georgia’s overall compliance with the ABA’s policies on the direct appeal
process is illustrated in the chart below.
The Direct Appeal Process
Compliance

In
Compliance

Partially in
Compliance

Recommendation
Recommendation #1: In order to (1) ensure that
the death penalty is being administered in a
rational, non-arbitrary manner, (2) provide a
check on broad prosecutorial discretion, and (3)
prevent discrimination from playing a role in the
capital decision making process, direct appeals
courts should engage in meaningful
proportionality review that includes cases in
which a death sentence was imposed, cases in
which the death penalty was sought but not
imposed, and cases in which the death penalty
could have been sought but was not.

Not in
Compliance

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X

Section 17-10-35(c)(3) of the Official Code of Georgia Annotated requires that in
reviewing the proportionality of a death sentence, the Georgia Supreme Court must
determine whether the defendant’s sentence of death is “excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime and the defendant.”
xv

In conducting its proportionality review, however, the Georgia Supreme Court limits its
review to cases where the death penalty was actually imposed upon similar
circumstances. In fifty-five death-sentence cases between 1994 and 2004, the Georgia
Supreme Court’s proportionality review consisted of reviewing only cases in which a
death sentence had been imposed. The Court only expands its review to cases where the
death penalty was not imposed when a defendant claims that his/her sentence is
disproportionate to that of his/her co-conspirator.
Additionally, the Georgia Supreme Court’s opinions generally devote only one or two
sentences to explaining the proportionality review analysis. These sentences generally
repeat the language of section 17-10-35(c)(3) by stating, “[T]he death sentence is not
disproportionate to the penalty imposed in similar cases, considering both the crimes and
the defendant. The similar cases listed in the Appendix support the imposition of the
death penalty in this case.”
Given the scope of the cases considered by the Court and the cursory manner in which
the proportionality review is explained, the proportionality review conducted by the
Georgia Supreme Court appears to be of limited value. In order to increase the
meaningfulness of its proportionality review, the Georgia Supreme Court should review
cases in which the death penalty was imposed, cases in which the death penalty was
sought but not imposed, and cases in which the death penalty could have been sought but
was not.
Chapter Eight: State Post-Conviction Proceedings
The importance of state post-conviction proceedings to the fair administration of justice
in capital cases cannot be overstated. Because many capital defendants receive
inadequate counsel at trial and on appeal, state post-conviction proceedings often provide
the first real opportunity to establish meritorious constitutional claims. For this reason,
all post-conviction proceedings should be conducted in a manner designed to permit
adequate development and judicial consideration of all claims. In this Chapter, we
examined Georgia’s laws, procedures, and practices relevant to state post-conviction
proceedings and assessed whether they comply with the ABA’s policies on state postconviction.
A summary of Georgia’s overall compliance with the ABA’s policies on state postconviction proceedings is illustrated in the chart below.

xvi

State Post-Conviction Proceedings
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: All post-conviction
proceedings at the trial court level should be
conducted in a manner designed to permit
adequate development and judicial
consideration of all claims. Trial courts should
not expedite post-conviction proceedings
unfairly; if necessary, courts should stay
executions to permit full and deliberate
consideration of claims. Courts should
exercise independent judgment in deciding
cases, making findings of fact and conclusions
of law only after fully and carefully
considering the evidence and the applicable
law.
Recommendation #2: The state should provide
meaningful discovery in post-conviction
proceedings. Where courts have discretion to
permit such discovery, the discretion should be
exercised to ensure full discovery.
Recommendation #3: Judges should provide
sufficient time for discovery and should not
curtail discovery as a means of expediting the
proceedings.
Recommendation #4: When deciding postconviction claims on appeal, state appellate
courts should address explicitly the issues of fact
and law raised by the claims and should issue
opinions that fully explain the bases for
dispositions of claims.
Recommendation #5: On the initial state postconviction application, state post-conviction
courts should apply a “knowing, understanding
and voluntary” standard for waivers of claims of
constitutional error not preserved properly at trial
or on appeal.
Recommendation #6: When deciding postconviction claims on appeal, state appellate
courts should apply a “knowing, understanding
and voluntary” standard for waivers of claims of
constitutional error not raised properly at trial or
on appeal and should liberally apply a plain error
rule with respect to errors of state law in capital
cases.

Insufficient
Information
to
Determine
Statewide
Compliance

X

X
X
X

X

X

xvii

Not
Applicable

State Post-Conviction Proceedings (Con’t.)
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #7: The state should establish
post-conviction defense organizations to
represent capital defendants in state postconviction, federal habeas corpus, and clemency
proceedings.
Recommendation #8: The state should appoint
post-conviction defense counsel whose
qualifications are consistent with the ABA
Guidelines on the Appointment and Performance
of Death Counsel in Death Penalty Cases. The
state should compensate appointed counsel
adequately and, as necessary, provide sufficient
funds for investigators and experts.
Recommendation #9: State courts should give
full retroactive effect to U.S. Supreme Court
decisions in all proceedings, including second
and successive post-conviction proceedings, and
should consider in such proceedings the
decisions of federal appeals and district courts.
Recommendation #10: State courts should
permit second and successive post-conviction
proceedings in capital cases where counsels’
omissions or intervening court decisions resulted
in possibly meritorious claims not previously
being raised, factually or legally developed, or
accepted as legally valid.
Recommendation #11: State courts should
apply the harmless error standard of Chapman v.
California, requiring the prosecution to show
that a constitutional error is harmless beyond a
reasonable doubt.
Recommendation #12: During the course of a
moratorium, a “blue ribbon” commission should
undertake a review of all cases in which
individuals have been either wrongfully
convicted or wrongfully sentenced to death and
should recommend ways to prevent such
wrongful results in the future.

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X

X

X

X

X

X

The State of Georgia has adopted some laws and procedures that facilitate the adequate
development and judicial consideration of claims—i.e., there are no filing deadlines for
state habeas petitions and courts permit second and successive petitions under certain
circumstances. But some laws and procedures have the opposite effect, such as:
 Georgia law allows the habeas judge, after requesting that either party file
proposed findings of fact and conclusions of law, to copy verbatim a party’s
proposed findings and conclusions in the final order of the court—which
xviii

undermines a habeas judge’s duty to exercise independent judgment in deciding
cases;
 Georgia law allows the habeas judge to shorten the time periods for filing
motions, pursuing discovery, and filing briefs—which potentially inhibits the full
development of the record upon which the habeas court bases its decision; and
 Georgia law applies the “cause and prejudice” standard for waivers of
constitutional and state law claims—which means that review of potentially
viable claims can be barred even without the petitioner’s “knowing,
understanding, and voluntary” waiver.
The effect of this on the adequate development and judicial consideration of claims is
even more acute in a habeas proceeding where the petitioner may not necessarily be
represented by counsel. In Georgia, death-sentenced inmates do not have a right to
appointed counsel after direct appeal, leaving death-sentenced inmates to represent
themselves or to obtain pro bono representation in order to pursue state post-conviction
relief.
Chapter Nine: Clemency
Given that the clemency process is the final avenue of review available to a death-row
inmate, it is imperative that clemency decision makers evaluate all of the factors bearing
on the appropriateness of the death sentence without regard to constraints that may limit a
court’s or jury’s decision making. In this Chapter, we reviewed Georgia’s laws,
procedures, and practices concerning the clemency process, including, but not limited to,
the Georgia State Board of Pardons and Paroles’ criteria for considering and deciding
petitions and inmates’ access to counsel, and assessed whether they comply with the
ABA’s policies on clemency.
A summary of Georgia’s overall compliance with the ABA’s policies on clemency is
illustrated in the chart below.

xix

Clemency
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: The clemency
decision making process should not
assume that the courts have reached the
merits on all issues bearing on the death
sentence in a given case; decisions should
be based upon an independent
consideration of facts and circumstances.
Recommendation #2: The clemency
decision making process should take into
account all factors that might lead the
decision maker to conclude that death is
not the appropriate punishment.
Recommendation #3: Clemency decision
makers should consider any pattern of
racial or geographic disparity in carrying
out the death penalty in the jurisdiction.
Recommendation #4: Clemency decision
makers should consider the inmate’s
mental retardation, mental illness, or
mental competency, if applicable, the
inmate’s age at the time of the offense,
and any evidence of lingering doubt about
inmate’s guilt.
Recommendation #5: Clemency decision
makers should consider an inmate’s
possible rehabilitation or performance of
positive acts while on death row.
Recommendation #6: Death row inmates
should be represented by counsel and such
counsel should have qualifications
consistent with the ABA Guidelines on
the Appointment and Performance of
Counsel in Death Penalty Cases.
Recommendation #7: Prior to clemency
hearings, counsel should be entitled to
compensation and access to investigative
and expert resources and provided with
sufficient time to develop claims and to
rebut state’s evidence.
Recommendation #8: Clemency
proceedings should be formally conducted
in public and presided over by the
Governor or other officials involved in
making the determination.

Insufficient
Information
to
Determine
Statewide
Compliance

X

X
X

X

X
X

X

X

xx

Not Applicable

Clemency (Con’t.)
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #9: If two or more
individuals are responsible for clemency
decisions or for making recommendations to
clemency decision makers, their decisions or
recommendations should be made only after
in-person meetings with petitioners.
Recommendation #10: Clemency decision
makers should be fully educated and should
encourage public education about clemency
powers and limitations on the judicial
system’s ability to grant relief under
circumstances that might warrant grants of
clemency.
Recommendation #11: Clemency
determinations should be insulated from
political considerations or impacts.

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X

X
X

The State Board of Pardons and Paroles (the Board) is required to conduct a “complete
and fair” review of all petitions for commutations. However, the scope of a “complete
and fair” review is not detailed in either the Official Code of Georgia Annotated or the
Rules of the State Board of Pardons and Paroles. Thus, it is unclear whether the Board is
required to consider any of the factors included in Recommendations #2-5.
In conducting a “complete and fair” review, the Board or some of its members
“generally” hold an appointment/hearing on the merits of an inmate’s request for
clemency. However, the Board is not required to hold an appointment/hearing on every
petition, and if and when the Board holds an appointment/hearing, the purpose of the
appointment/hearing is to hear from “representatives for the condemned inmate,” not
from the inmate himself/herself, and it is closed to the public.
A separate
appointment/hearing may be held to hear arguments from those opposing the clemency
request.
Not only is the criteria considered by the Board unknown and the appointment/hearing to
consider the inmate’s clemency request not necessarily open to the inmate, but other parts
of the clemency decision making process are confidential as well.
 The Board is not required to release to the public the evidence it considered
during the clemency process.
 The Board is not required to release its reasons for granting or denying an
inmate’s clemency petition.
 The Board is not required to release its vote count on the inmate’s petition.
xxi

Given the ambiguities and confidentiality surrounding Georgia’s clemency process, the
State of Georgia should adopt more explicit factors to guide the consideration of
clemency petitions and should open the appointment/hearing and decision making
process to ensure transparency.
Chapter Ten: Voir Dire and Capital Jury Instructions
Due to the complexities inherent in capital proceedings, trial judges must present fully
and accurately, through jury instructions, the applicable law to be followed and the
“awesome responsibility” of deciding whether another person will live or die. Often,
however, jury instructions are poorly written and poorly conveyed, which confuses the
jury about the applicable law and the extent of their responsibilities. In this Chapter, we
reviewed Georgia’s laws, procedures, and practices on capital jury instructions and
assessed whether they comply with the ABA’s policies on capital jury instructions.
A summary of Georgia’s overall compliance with the ABA’s policies on capital jury
instructions is illustrated in the chart below.

xxii

Capital Jury Instructions
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: Jurisdictions should
work with certain specialists and jurors to
evaluate the extent to which jurors understand
instructions, revise the instructions as
necessary, and monitor the extent to which
jurors understand revised instructions to permit
further revision as necessary.
Recommendation #2: Jurors should receive
written copies of court instructions to consult
while the court is instructing them and while
conducting deliberations.
Recommendation #3: Trial courts should
respond meaningfully to jurors’ requests for
clarification of instructions.
Recommendation #4: Trial courts should
instruct jurors clearly on available alternative
punishments and should, upon the defendant’s
request during the sentencing phase, permit
parole officials or other knowledgeable witnesses
to testify about parole practices in the state.
Recommendation #5: Trial courts should
instruct jurors that a juror may return a life
sentence, even in the absence of any mitigating
factor and even where an aggravating factor has
been established beyond a reasonable doubt, if
the juror does not believe that the defendant
should receive the death penalty.
Recommendation #6: Trial courts should
instruct jurors that residual doubt about the
defendant’s guilt is a mitigating factor.
Jurisdictions should implement Model Penal
Code section 210.3(1)(f), under which residual
doubt concerning the defendant’s guilt would, by
law, require a sentence less than death.
Recommendation #7: In states where it is
applicable, trial courts should make clear in juror
instructions that the weighing process for
considering aggravating and mitigating factors
should not be conducted by determining whether
there are a greater number of aggravating factors
than mitigating factors.

Insufficient
Information
to Determine
Statewide
Compliance

Not
Applicable

X

X
X
X

X

X

X

The State of Georgia has suggested pattern jury instructions covering the sentencing
phase of a capital trial. These instructions are informative: they include, for example,
definitions of mitigating and aggravating circumstances and an explanation of the
meaning of and difference between the alternative sentencing options to death. But the
instructions are not broad enough to fully inform jurors of the applicable law.
xxiii

Jurors’ understanding of the meaning of mitigation, and of how they may bring
mitigating factors to bear in their consideration of capital punishment, is vital to the
capital sentencing process. Apart from the definition of mitigating circumstances,
however, the suggested pattern jury instructions do not include specific information on
the consideration of mitigating circumstances.
 The suggested pattern jury instructions do not contain a list of mitigating
circumstances and the Georgia Supreme Court has found that judges do not have
to instruct juries on the relevant mitigating circumstances present in the case.
 The suggested pattern jury instructions do not contain the burden of proof for
mitigating circumstances or the requisite number of jurors necessary to find the
existence of mitigating circumstances.
Additionally, although the suggested pattern jury instructions contain a definition of
mitigating circumstances, the Georgia Supreme Court has found that judges do not have
to provide the definition, as mitigation is a term of common usage and meaning.
Given the limited instruction that is provided to juries on mitigating evidence, it is no
surprise that 40.5% of interviewed Georgia capital jurors did not understand that they
could consider any evidence in mitigation and that 62.2% believed that the defense had to
prove mitigating factors beyond a reasonable doubt. Similarly, 89% of interviewed
Georgia capital jurors did not understand that they could consider any factor in mitigation
regardless of whether other jurors agreed. Georgia capital jurors are confused not only
about the scope of mitigation evidence that they may consider but also about the
applicable burden of proof and the unanimity of finding required for mitigating factors.
The State of Georgia should revise the suggested pattern jury instructions (i.e., include a
list of mitigating circumstances and the burden of proof for mitigating circumstances) to
ensure that jurors understand applicable law.
Chapter Eleven: Judicial Independence
With increasing frequency, judicial elections, appointments, and confirmations are being
influenced by consideration of judicial nominees’ or candidates’ purported views of the
death penalty or of judges’ decisions in capital cases. This erosion of judicial
independence increases the possibility that judges will be selected, elevated, and retained
in office by a process that ignores the larger interests of justice and fairness, and instead
focuses narrowly on the issue of capital punishment. In this Chapter, we reviewed
Georgia’s laws, procedures, and practices on the judicial election/appointment and
decision making processes and assessed whether they comply with the ABA’s policies on
judicial independence.
A summary of Georgia’s overall compliance with the ABA’s policies on judicial
independence is illustrated in the chart below.
xxiv

Judicial Independence
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: States should examine
the fairness of their judicial
election/appointment process and should
educate the public about the importance of
judicial independence and the effect of unfair
practices on judicial independence.
Recommendation #2: A judge who has made
any promise regarding his/her prospective
decisions in capital cases that amounts to
prejudgment should not preside over any capital
case or review any death penalty decision in the
jurisdiction.
Recommendation #3: Bar associations and
community leaders should speak out in defense of
judges who are criticized for decisions in capital
cases; Bar associations should educate the public
concerning the roles and responsibilities of
judges and lawyers in capital cases; Bar
associations and community leaders should
oppose any questioning of candidates for judicial
appointment or re-appointment concerning their
decisions in capital cases; and purported views on
the death penalty or on habeas corpus should not
be litmus tests or important factors in the
selection of judges.
Recommendation #4: A judge who observes
ineffective lawyering by defense counsel should
inquire into counsel’s performance and, where
appropriate, take effective actions to ensure
defendant receives a proper defense.
Recommendation #5: A judge who determines
that prosecutorial misconduct or other unfair
activity has occurred during a capital case should
take immediate action to address the situation and
to ensure the capital proceeding is fair.
Recommendation #6: Judges should do all
within their power to ensure that defendants are
provided with full discovery in capital cases.

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X

X

X

X
X
X

Due to the Eleventh Circuit’s decision in Weaver v. Bonner and the resulting amendments
to the Georgia Code of Judicial Conduct, judicial campaigns in Georgia have changed in
two ways: (1) judicial candidates are no longer prohibited from personally soliciting
campaign contributions; and (2) judicial candidates are no longer prohibited from using
false, misleading, and deceptive communications. These changes, combined with the
rising costs and increasing political nature of Georgia judicial campaigns, have called
xxv

into question the fairness of the appointment/election process in Georgia for a number of
reasons:
 Judicial candidates continue to campaign on criminal justice issues, including the
death penalty. In a 2004 judicial election, a judicial candidate running for an open
seat on the Georgia Court of Appeals ran television commercials characterizing
his opponents as “high-priced criminal defense lawyers [who] work for the kind
of people they once sent to jail.” Similarly, in the Cobb County judicial race of
2004, a judicial candidate challenging an incumbent superior court judge
distributed campaign literature featuring a picture of the current district attorney
with the message, “I support the death penalty, but some judges don’t. Consider
Dorothy Robinson [the incumbent judge].”
 The rising costs of judicial campaigns tend to increase the influence of money in
the judicial selection process. In 2004, two candidates for one contested Georgia
Supreme Court seat raised a combined total of more than $815,000. Just two
years earlier in 2002, candidates for two contested Georgia Supreme Court seats
raised a combined total of approximately $700,000.
 The rising costs of judicial campaigns require candidates and/or their agents to
solicit an increasing amount of campaign contributions. Although authorized to
personally solicit campaign contributions, judicial candidates are encouraged to
establish a committee to secure and manage campaign funds. They are not
restricted from soliciting funds from individuals or organizations that could have
an interest in the cases s/he will decide as a judge.
Chapter Twelve: The Treatment of Racial and Ethnic Minorities
A pattern of racial discrimination persists today, in part because courts tolerate actions by
prosecutors, defense lawyers, trial judges, and juries that can infect the entire trial process
with a racial impact. To eliminate the impact of race in death penalty administration, the
ways in which race infects the system must be identified and strategies must be devised
to root out the discriminatory practices. In this Chapter, we examined Georgia’s laws,
procedures, and practices pertaining to the treatment of racial and ethnic minorities and
assessed whether they comply with the ABA’s policies.
A summary of Georgia’s overall compliance with the ABA’s policies on racial and ethnic
minorities and the death penalty is illustrated in the chart below.

xxvi

The Treatment of Racial and Ethnic Minorities
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #1: Jurisdictions should
fully investigate and evaluate the impact of
racial discrimination in their criminal justice
systems and develop strategies that strive to
eliminate it.
Recommendation #2: Jurisdictions should
collect and maintain data on the race of
defendants and victims, on the circumstances of
the crime, on all aggravating and mitigating
circumstances, and on the nature and strength of
the evidence for all potentially capital cases
(regardless of whether the case is charged,
prosecuted, or disposed of as a capital case). This
data should be collected and maintained with
respect to every stage of the criminal justice
process, from reporting of the crime through
execution of the sentence.
Recommendation #3: Jurisdictions should
collect and review all valid studies already
undertaken to determine the impact of racial
discrimination on the administration of the death
penalty and should identify and carry out any
additional studies that would help determine
discriminatory impacts on capital cases. In
conducting new studies, states should collect data
by race for any aspect of the death penalty in
which race could be a factor.
Recommendation #4: Where patterns of racial
discrimination are found in any phase of the
death penalty administration, jurisdictions should
develop, in consultation with legal scholars,
practitioners, and other appropriate experts,
effective remedial and prevention strategies to
address the discrimination.
Recommendation #5: Jurisdictions should adopt
legislation explicitly stating that no person shall
be put to death in accordance with a sentence
sought or imposed as a result of the race of the
defendant or the race of the victim. To enforce
this law, jurisdictions should permit defendants
and inmates to establish prima facie cases of
discrimination based upon proof that their cases
are part of established racially discriminatory
patterns. If a prima facie case is established, the
state should have the burden of rebutting it by
substantial evidence.

X

X

X

X

X

xxvii

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

The Treatment of Racial and Ethnic Minorities (Con’t.)
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #6: Jurisdictions should
develop and implement educational programs
applicable to all parts of the criminal justice
system to stress that race should not be a factor
in any aspect of death penalty administration. To
ensure that such programs are effective,
jurisdictions also should impose meaningful
sanctions against any state actor found to have
acted on the basis of race in a capital case.
Recommendation #7: Defense counsel should
be trained to identify and develop racial
discrimination claims in capital cases.
Jurisdictions also should ensure that defense
counsel are trained to identify biased jurors
during voir dire.
Recommendation #8: Jurisdictions should
require jury instructions indicating that it is
improper to consider any racial factors in their
decision making and that they should report any
evidence of racial discrimination in jury
deliberations.
Recommendation #9: Jurisdictions should
ensure that judges recuse themselves from
capital cases when any party in a given case
establishes a reasonable basis for concluding that
the judge’s decision making could be affected by
racially discriminatory factors.
Recommendation #10: States should permit
defendants or inmates to raise directly claims of
racial discrimination in the imposition of death
sentences at any stage of judicial proceedings,
notwithstanding any procedural rule that
otherwise might bar such claims, unless the state
proves in a given case that a defendant or inmate
has knowingly and intelligently waived the
claim.

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X

X

X

X

X

Between February 1, 1993 and August 1, 1995, the State of Georgia, through the Georgia
Supreme Court’s Commission on Racial and Ethnic Bias in the Court System,
investigated the impact of racial bias in the criminal justice system and made
recommendations to “correct[] any problems or misconceptions that exist within the court
system and to assure equal opportunity and treatment now and in the future.” The
Commission’s investigation did not include an assessment of the impact of racial bias in
the administration of the death penalty because “[t]he large number of factors involved in
a death penalty decision . . . , combined with the numerous entities involved in these
decisions, . . . [we]re beyond the resources of the Commission to adequately assess.”
xxviii

The Commission’s report included a number of findings and recommendations on the
criminal justice system as a whole, but it does not appear that the recommendations have
been effectively implemented in the State of Georgia.
 The Commission found that “[t]here is a pervasive lack of adequate [criminal]
data from which conclusions and policy decisions could be made. The
Commission had wanted to investigate potential racial disparities among persons
convicted for offenses such as criminal trespass or simple burglary. Limitations
in the available databases precluded such analyses.” Today, the State of Georgia
does not collect demographic information on defendants and victims in all death
penalty cases, including death-eligible or death-sought cases. Rather, it only
collects information on cases in which the defendant was sentenced to death. The
State of Georgia should collect this data to facilitate the evaluation of the impact
of racial discrimination on the death penalty system
 The Commission expressed “concern” in its report over the fact that “the number
of persons receiving a death sentence or charged with a death penalty offense is
disproportionately African-American.” Since the release of the Commission’s
report, it does not appear as if the racial disparities identified as a “concern” by
the Commission have diminished. For example, as of August 1998, fifty-five of
the 119 inmates on Georgia’s death row were black and of the 88 persons
awaiting death penalty trial, 53 were black males, 26 were white males, 2 were
black females, 4 were white females, and 3 were Hispanic males.7
 The Commission found that “[o]ver 81% of minority attorneys and 58% of whites
shared the perception that [jury] verdicts are influenced by jurors’ racial
stereotypes.” Despite this finding, neither Georgia statutory law nor case law
requires jury instructions informing jurors that it is improper to consider any
racial factors in their decision making and instructing them to report any evidence
of racial discrimination in jury deliberations. In an effort to address this finding,
the State of Georgia should revise the pattern jury instructions to include an
instruction consistent with Recommendation #8.
The State of Georgia should examine the impact of racial discrimination in the criminal
justice system, especially in capital sentencing, and should develop new procedures that
facilitate eliminating discrimination on the basis of race.
Chapter Thirteen: Mental Retardation and Mental Illness
In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that it is
unconstitutional to execute offenders with mental retardation. This holding, however,
does not guarantee that individuals with mental retardation will not be executed, as each
state has the authority to make its own rules for determining whether a capital defendant
is mentally retarded. This discretion includes, but is not limited to, the ability to define
7

Michael Mears, Georgia Capital Defender Office, Georgia Needs a Racial Justice Act, at
http://www.gacapdef.org/docs/articles_mears_racial_justice_act.htm (last visited on Oct. 7, 2005).

xxix

mental retardation and the burden of proof for mental retardation claims. In this Chapter,
we reviewed Georgia’s laws, procedures, and practices pertaining to mental retardation
and the death penalty and assessed whether they comply with the ABA’s policy on
mental retardation and the death penalty.
A summary of Georgia’s overall compliance with the ABA’s policies on mental
retardation and the death penalty is illustrated in the chart below.
Mental Retardation and Mental Illness and the Death Penalty
Compliance

In
Compliance

Partially in
Compliance

Recommendation
Recommendation #1: Jurisdictions should bar
the execution of individuals who have mental
retardation, as defined by the American
Association on Mental Retardation. Whether
the definition is satisfied in a particular case
should be based upon a clinical judgment, not
solely upon a legislatively prescribed IQ
measure, and judges and counsel should be
trained to apply the law fully and fairly. No IQ
maximum lower than 75 should be imposed in
this regard. Testing used in arriving at this
judgment need not have been performed prior
to the crime.
Recommendation #2: All actors in the criminal
justice system should be trained to recognize
mental retardation in capital defendants and death
row inmates.
Recommendation #3: Jurisdictions should
ensure that persons who may have mental
retardation are represented by attorneys who fully
appreciate the significance of their clients’ mental
limitations. These attorneys should have
sufficient training, funds, and resources.
Recommendation #4: For cases commencing
after Atkins v. Virginia or the state’s ban on the
execution of the mentally retarded (the earlier of
the two), the determination of whether a
defendant has mental retardation should occur as
early as possible in criminal proceedings,
preferably prior to the guilt/innocence phase of a
trial and certainly before the penalty stage of a
trial.

Not in
Compliance

Insufficient
Information
to
Determine
Statewide
Compliance

X

X
X

X

xxx

Not
Applicable

Mental Retardation and Mental Illness and the Death Penalty (Con’t.)
Compliance

In
Compliance

Partially in
Compliance

Not in
Compliance

Recommendation
Recommendation #5: The burden of disproving
mental retardation should be placed on the
prosecution, where the defense has presented a
substantial showing that the defendant may have
mental retardation. If, instead, the burden of
proof is placed on the defense, its burden should
be limited to proof by a preponderance of the
evidence.
Recommendation #6: During police
investigations and interrogations, special steps
should be taken to ensure that the Miranda rights
of a mentally retarded person are sufficiently
protected and that false, coerced, or garbled
confessions are not obtained or used.
Recommendation #7: The jurisdiction should
have in place mechanisms to ensure that, during
court proceedings, the rights of mentally retarded
persons are protected against “waivers” that are
the product of their mental disability.

Insufficient
Information
to
Determine
Statewide
Compliance

Not
Applicable

X

X

X

Because Georgia has prohibited the execution of mentally retarded offenders since 1989,
the Atkins decision had little to no effect in the State of Georgia. In fact, Georgia was the
first state to statutorily prohibit the execution of certain mentally retarded offenders. The
procedures adopted by the State of Georgia to determine mental retardation, however, do
not fully comply with the ABA’s recommendations on mental retardation, and some of
the state’s procedures are particularly problematic.
 Georgia’s statutory definition of mental retardation is similar to the American
Association on Mental Retardation’s definition, as required by Recommendation
#1. The Georgia Supreme Court, however, has recognized the IQ range of “70 or
below” as being “an indication of significantly subaverage intellectual
functioning.” The Court has not addressed the issue of whether an IQ score in the
low to mid-70s disqualifies a defendant or death-row inmate from being found to
have mental retardation, and Georgia trials courts, in at least some mental
retardation cases, have interpreted the statute to permit the jury to consider IQ
scores as high as 75 as possibly being supportive of a mental retardation verdict,
in view of the possibility of a 5 point margin of error.
 The State of Georgia places the burden of proving mental retardation on the
defendant, rather than requiring the prosecution to disprove the defendant’s
substantial showing of mental retardation, as required by Recommendation #5.
 The State of Georgia requires defendants to prove their mental retardation beyond
a reasonable doubt—which is inconsistent with Recommendation #5—except in
xxxi

cases in which the capital trial’s guilt/innocence phase took place before July 1,
1988, in which case the burden of proof is by a preponderance of the evidence.
To comply with the ABA’s recommendations, the State of Georgia should expand the
application of the preponderance of the evidence standard to all death penalty cases.

xxxii

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 statefunded 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
1

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.

2

MEMBERS OF THE GEORGIA DEATH PENALTY ASSESSMENT TEAM

Chair, Dean Anne S. Emanuel
Dean Emanuel is Associate Dean for Academic Affairs and Professor of Law at the
Georgia State University College of Law. Prior to joining the GSU Law faculty, Dean
Emanuel served as a law assistant to Chief Justice Harold N. Hill of the Georgia Supreme
Court, and was the Court's liaison to Trial Court Judges with respect to Uniform Rules.
She also practiced law with the firm of Huie, Brown, and Ide, and clerked for Judge
Elbert P. Tuttle of the United States Court of Appeals for the Fifth Circuit. Dean
Emanuel currently serves on the Board of Directors of the Georgia Center for Law in the
Public Interest, and previously served on the Board of Directors of the Atlanta Bar
Association, and on the Formal Advisory Opinion Board of the State Bar of Georgia.
She received the Governor's Award for Outstanding Service in State Government in
1985. Dean Emanuel received her B.A. from Old Dominion University, and her J.D.
with distinction from Emory University, where she was Editor in Chief of the Emory
Law Journal and was elected to the Order of the Coif.
Justice Harold G. Clarke
Justice Clarke is a former justice of the Georgia Supreme Court, and is currently Of
Counsel to Troutman Sanders LLP in Atlanta, Georgia. Justice Clarke was appointed to
the Georgia Supreme Court by Governor George Busbee in December 1979. He was
elected Chief Justice in 1990 and served on the court until his retirement in February
1994. Prior to his judicial appointment, Justice Clarke was a member of the Georgia
General Assembly from 1961 to 1971. While in the General Assembly, Justice Clarke
served as chairperson of the Local Affairs Committee, the Industry Committee, the
Journals Committee, and the Constitutional Commissions Committee. Justice Clarke is a
member of numerous professional organizations, including the Georgia State Bar, of
which he served as President from 1976 to 1977. Justice Clarke is a graduate of the
University of Georgia School of Law.
Harry D. Dixon, Jr.
Mr. Dixon is a solo practitioner in Savannah, where he specializes in criminal and civil
litigation in both state and federal courts. In 1993, Mr. Dixon was appointed United
States Attorney for the Southern District of Georgia by President Bill Clinton. While U.S.
Attorney, Mr. Dixon served on the United States Attorney General’s Advisory
Committee. Prior to his appointment as U.S. Attorney, Mr. Dixon served as Assistant
District Attorney for the Waycross Judicial Circuit and was elected District Attorney in
1982. Mr. Dixon was also in private practice at the law firm of Bennett, Pedrick &
Bennett in Waycross, Georgia. Mr. Dixon is a member of the National Association of
Former United States Attorneys, the National Association of Criminal Defense Lawyers,
and the Savannah Bar Association. Mr. Dixon is a graduate of Valdosta State College and
of the University of Georgia School of Law.

3

Professor Timothy W. Floyd
Professor Floyd is a Visiting Professor at Georgia State University College of Law and
Director of the Law Student Clinic at the Georgia Capital Defender. He was previously
the J. Hadley Edgar Professor of Law at Texas Tech University, where his scholarship
and teaching focused on legal ethics and moral theology to the practice of law, legal
clinical training, and lawyer disciplinary procedures. Also at Texas Tech, Professor Floyd
was faculty advisor to the Board of Barristers, and served as faculty editor of the Faith
and the Law Symposium Issue of the Texas Tech Law Review. Professor Floyd is an
expert in capital litigation, having served as defense counsel to several cases under the
Federal Death Penalty Act of 1994. Professor Floyd also has served as Legal Counsel to
the Lieutenant Governor of Georgia, and practiced law at the law firm of Sutherland,
Asbill & Brennan. Floyd received both a B.A. and an M.A. from Emory University and
his J.D. from the University of Georgia School of Law.
Senator Vincent D. Fort
Senator Fort is currently serving his fourth term as State Senator from the 39th District of
Georgia--Fulton County. Senator Fort is the Chairman of the Fulton County Senate
Delegation, which coordinates the legislative priorities and proposals of Fulton County
and the City of Atlanta. Senator Fort is also a member of several committees within the
Senate, including Children and Youth, Special Judiciary, State Institutions and Property,
and the Retirement Committee, of which he is Secretary. In addition to serving in the
Senate, Senator Fort is a professor of history and political science at Morris Brown
College in Atlanta. As an educator, Senator Fort has a special interest in improving the
quality of public education. He is currently the chairman of the Georgia Legislative Black
Caucus Committee on Education, and was previously chair of the Senate Study
Committee on Public Education Disciplinary Reform. Senator Fort received his B.A.
from Central Connecticut State College, and his M.A. from Atlanta University.
William R. Ide, III
Mr. Ide is a Partner at McKenna Long & Aldridge LLP in Atlanta, Georgia, where he
specializes in corporate finance, securities, and corporate governance and compliance.
Mr. Ide is also currently a Senior Fellow of Emory’s Conference Board and Director’s
Institute, as well as a member of the Board of Directors of AFC Enterprises, Inc. Prior to
joining McKenna Long, Mr. Ide served as Senior Vice President, General Counsel, and
Secretary of Monsanto Corporation. Prior to his service at Monsanto, Mr. Ide was a
senior partner at McKenna, Long’s predecessor, Long, Alderidge & Norman LLP. Active
in his professional community, Mr. Ide was President of the American Bar Association
from 1993 to 1994, and was a member of the founding executive committee and board of
director’s of the Atlanta Committee for the Olympic Games. Mr. Ide also clerked for the
Honorable Griffin Bell of the United States Court of Appeals for the Fifth Circuit. Mr.
Ide received his B.A. from Washington and Lee University, his M.B.A. from Georgia
State University, and his J.D. from the University of Virginia.

4

Dr. Kay L. Levine
Dr. Levine is an Assistant Professor of Law at the Emory University School of Law,
where she teaches criminal law, criminal procedure, victimless crimes, and juvenile
justice. Before joining the Emory faculty, Dr. Levine was a Deputy District Attorney in
Riverside County, California. She also worked as a criminal defense consultant and as an
adjunct professor at the University of California at Berkeley. Dr. Levine clerked for the
Honorable David Alan Ezra of the United States District Court for the District of Hawaii.
She received her undergraduate degree magna cum laude from Duke University, and her
J.D., M.A. and Ph.D. from the University of California at Berkeley.
Professor Jack L. Sammons
Professor Sammons, a graduate of Duke, University of Georgia, and Antioch, is the
Griffin B. Bell Professor of Law at Mercer University School of Law where he has taught
for over twenty-five years. A founding member of the Chief Justice's Commission on
Professionalism, the former Vice-Chair of the Formal Advisory Opinion Board of the
State Bar of Georgia, Professor Sammons currently teaches in the areas of Trial
Evidence, First Amendment, Law and Religion, and Legal Ethics and serve as a
consultant on matters involving the legal ethics and legal education to numerous national,
state, and local legal organizations. He is the author of over forty books, articles,
chapters, and videos on issues involving the legal profession some of which are widely
used as student texts for courses in legal ethics, business ethics, law and religion, and
theology. A frequent continuing legal education lecturer, Professor Sammons has also
presented recent academic papers at Oxford, University of Arkansas, Notre Dame,
and Stetson University. His most recent works are “Cheater!: The Central Moral
Admonition of Legal Ethics” and “A Rhetorician's View of Religious Arguments in
Political Conversation.”
Professor David E. Shipley
Professor Shipley is the Thomas R.R. Cobb Professor of Law at the University of
Georgia College of Law, where his teaching and scholarship focus on copyright law and
intellectual property, administrative law, and civil procedure and remedies. He joined the
University of Georgia College of Law in 1998 as Dean and Professor of Law. In 2003, he
returned to full-time teaching and was appointed Thomas R.R. Cobb Professor of Law.
Professor Shipley has a long career in law school administration and academia, prior to
joining the University of Georgia, he was Dean and Professor at the University of
Kentucky College of Law from 1993-1998; Dean, Director of the Law Center, and
Professor at the University of Mississippi School of Law from 1990-1993; and Associate
Dean and Professor at the University of South Carolina School of Law from 1989-1990.
Prior to entering academia, Professor Shipley practiced with the law firm of Tillinghast,
Collins & Graham in Providence, Rhode Island. He is also an active member of the
American Bar Association and the Association of American Law Schools. Professor
Shipley received his B.A. from Oberlin College and his J.D. from the University of
Chicago.
5

J. Douglas Stewart
Mr. Stewart is a Partner at the Gainesville law firm of Stewart, Melvin & Frost LLP. Mr.
Stewart has a broad litigation practice, including commercial contract disputes, high asset
will contests, banking and financial controversies, as well as both plaintiff and defense
side personal injury cases. Mr. Stewart is an active member of the Georgia State Bar,
serving as President, President-Elect, and Treasurer, and has been a member of the State
Bar Board of Governors since 1972. He was the recipient of the State Bar of Georgia’s
Distinguished Service Award in 1992. He is currently serving a three-year term as the
sixth district member of the Board of Governors of the American Bar Association. Mr.
Stewart is also active in his community, having served as President of the Community
Concert Association and as an active participant in many local theater and musical
productions. Mr. Stewart received both his undergraduate and law degrees from Emory
University.
Law Student Researchers
Heather Schafer (Research Coordinator)
Stewart Bratcher
Julia Blake Eno
Ryan Finch
J. Colby Jones
Jimmy C. Luke
Samir Patel
Heather S. Robinson
DeLaycee Rowland
Sarah Simmons
Angela Tarabadka

Georgia State University School of Law
Georgia State University School of Law
Georgia State University School of Law
Georgia State University School of Law
Georgia State University School of Law
Emory University School of Law
Georgia State University School of Law
Georgia State University School of Law
Georgia State University School of Law
Georgia State University School of Law
Mercer University School of Law

6

CHAPTER ONE
AN OVERVIEW OF GEORGIA’S DEATH PENALTY SYSTEM
I. DEMOGRAPHICS OF GEORGIA’S DEATH ROW
A. Historical Data
In 1973, Georgia reinstituted the death penalty. Between 1973 and 2003, there were 835
cases in which the State of Georgia sought the death penalty.1 Thirty-nine percent (328
cases) resulted in death sentences, 26.5 percent (222 cases) resulted in the defendant
receiving a life sentence with the possibility of parole, and 17.4 percent (145 cases) of
defendants in death cases received a life sentence without the possibility of parole.2
Approximately three percent (specifically 2.8 percent (23 cases)) of defendants in death
cases were convicted of a lesser included offense, 2.5 percent (21 cases) of those tried in
a death case were acquitted or had their case dismissed, and 11.4 (95 cases) percent of
these death cases were still pending completion as of 2003.3
Between 1973 and early December 2005, Georgia executed 39 people.4 Of those, all
were male, 26 were white and 13 were black.5 Five death-row inmates were exonerated
between 1973 and 2003.6

1

MICHAEL MEARS , AN ANALYSIS OF D EATH PENALTY CASES IN GEORGIA BY JUDICIAL C IRCUITS 19732003, at 74 (2004).
2
The option of sentencing a capital defendant to life in prison without the possibility of parole only
became available in 1993. 1993 Ga. Laws 569, § 4 (referencing O.C.G.A. § 17-10-30.1 (1993)).
3
Id.
4
See
Death
Penalty
Information
Center,
State
by
State
Information,
at
http://www.deathpenaltyinfo.org/state/ (last visited on December 12, 2005) (click on Georgia in the pulldown menu).
5
Office of Planning and Analysis, Georgia Department of Corrections, The History of the Death Penalty
in Georgia: Executions by Year 1924-2003 (2003) (on file with author).
6
See Death Penalty Information Center, Cases of Innocence 1973 - Present, available at
http://www.deathpenaltyinfo.org/article.php?scid=6&did=109 (last updated on Aug. 16, 2005). The names
of the five exonerated individuals are as follows: James Creamer (released in 1975), Earl Charles (released
in 1978), Jerry Banks (released in 1980), Robert Wallace (acquitted at retrial in 1987), and Gary Nelson
(released in 1991). The definition of innocence used by the Death Penalty Information Center (“DPIC”) in
placing defendants on the list of exonerated individuals is that “they had been convicted and sentenced to
death, and subsequently either a) their conviction was overturned and they were acquitted at a re-trial, or all
charges were dropped, or b) they were given an absolute pardon by the governor based on new evidence of
innocence.” Id. Henry Drake, who was convicted of murder and sentenced to death in Georgia in 1977, is
not on DPIC’s list. Although Drake received an absolute pardon based on actual innocence, he received his
absolute pardon after his death sentence had been vacated by the federal appeals court and he was resentenced to life in prison, meaning he received an absolute pardon from his life sentence, rather than death
row. See Drake v. Kemp, 762 F.2d 1449, 1461 (11th Cir. 1985); Gibson v. Turpin, 513 S.E.2d 186, 198
n.28 (Ga. 1999); Forejustice, Wrongly Convicted Database Record: Henry Arthur Drake, at
http://forejustice.org/db/Drake__Henry_Arthur_.html (last visited on Sept. 20, 2005).

7

B. A Current Profile of Georgia’s Death Row
The Georgia Department of Corrections compiles monthly profiles of the prisoners
currently serving death sentences.7 The following statistics are taken from the November
2005 Inmate Statistical Profile of Georgia’s Death Row (“the profile”).8
1. Current Age and Gender
The profile lists 101 inmates on Georgia’s death row—100 men and one woman.9
Seventy-four inmates on death row are 30-49 years old, thirteen are 20-29 years old, and
thirteen are 50 years or older.10 No death-row inmates in Georgia are more than 69 years
old.11
2. Race
Georgia’s death row consists of fifty-two White inmates—fifty-one men and one
woman.12 Forty-seven men on death row are Black, and one man is Native American.13
One male inmate did not report his race.14
3. Geography: Home County, Childhood Home, County of Conviction15
Forty-two of the 101 death-row inmates reported that, before incarceration, they resided
in counties with populations of less than 100,000 people.16 Fifteen inmates reported that
they resided in counties with populations of 100,000-250,000 people.17 Seventeen deathrow inmates reported that they resided in counties with population of more than 250,000
people.18 Ten inmates did not report their home counties.19

7

Georgia
Department
of
Corrections,
Death
Penalty,
at
http://www.dcor.state.ga.us/CORRINFO/ResearchReports/DeathPenalty.html (last visited on Sept. 12,
2005).
8
Georgia
Department
of
Corrections,
Inmate
Statistical
Profile,
at
http://www.dcor.state.ga.us/pdf/uds05-11.pdf (last visited on Nov. 22, 2005).
9
Id. at 6.
10
Id.
11
Id.
12
Id. at 7.
13
Id.
14
Id.
15
All population data in this subsection is taken from the Georgia Office of Planning and Budget, Census
Data
Program,
Population
for
Counties
1960
to
2000
Census,
at
http://www.gadata.org/information_services/Census_Info/2000_county_pop.htm (last visited on Nov 23,
2005).
16
Georgia
Department
of
Corrections,
Inmate
Statistical
Profile,
at
11-12,
at
http://www.dcor.state.ga.us/pdf/uds05-11.pdf (last visited on Nov. 22, 2005).
17
Id.
18
Id.
19
Id.

8

Sixty-three death-row inmates were convicted in counties with populations of less than
100,000 people.20 Twenty-two inmates were convicted in counties with populations of
100,000-250,000 people. 21 Sixteen death-row inmates were convicted in counties with
populations of more than 250,000 people.22
4. Highest Education Attained and IQ Score
Sixteen death-row inmates achieved less than a ninth-grade education.23 Thirty-seven
inmates finished grades nine through eleven, while twenty-four inmates completed high
school or obtained their GED.24 Fifteen inmates enrolled in or completed some post-high
school education such as tech school, two-year college, a bachelor’s degree, or a master’s
degree.25 Ten inmates did not report their highest level of education.26
Three death-row inmates have an IQ score of 60-79.27 Eleven inmates have an IQ score
of 80-99, seventeen have an IQ score of 100-119, and four inmates have an IQ score of
120-129.28 Sixty-six inmates did not report their IQ score. 29
5. Inmates Receiving Mental Health Treatment
Currently, twenty-one death-row inmates are receiving outpatient mental health treatment
and five inmates are receiving either moderate or intensive inpatient mental health
treatment.30 Twenty-five inmates do not have any current mental health problem and the
profile does not include the extent of mental health treatment for fifty inmates.31
II. THE STATUTORY E VOLUTION OF GEORGIA’S DEATH PENALTY SCHEME
A. Georgia’s Post-Furman Death Penalty Scheme
In 1973, after the United States Supreme Court, in Furman v. Georgia,32 found that the
death penalty as practiced violated the Eighth and Fourteenth Amendments of the United

20

Id. at 67-68.
Id.
22
Id.
23
Id. at 37.
24
Id.
25
Id.
26
Id.
27
Id. at 38.
28
Id.
29
Id.
30
Id. at 44.
31
Id.
32
408 U.S. 238 (1972). Two of the petitioners in this case were convicted of offenses in the State of
Georgia. Id. at 239. The first was convicted of murder and sentenced to death pursuant to section 26-1005
of the Georgia Code Annotated and the other was convicted of rape and sentenced to death pursuant to
section 26-1302 of the Georgia Code Annotated. Id.
21

9

States Constitution, the Georgia Legislature adopted a new law allowing for the
imposition of the death penalty for certain offenses and providing for specific procedures
for death penalty cases.33 The new law altered Georgia’s death penalty scheme by
amending sections 26-2401,34 26-3102, 27-2401,35 27-2534, 27-2514,36 and 27-2528 of
the Georgia Code Annotated, and adding sections 27-2534.1 and 27-2537.37
Under the revised death penalty scheme, Georgia retained the death penalty for the
offenses of aircraft hijacking,38 treason,39 murder, 40 rape, 41 armed robbery,42 and
kidnapping for ransom or where the victim is harmed.43 Upon conviction of one of these
offenses, the court held a separate hearing to determine whether to sentence the defendant
to death, life imprisonment, or a lesser punishment.44
During the punishment hearing, the judge and jury, depending upon whether the
defendant pleaded guilty or waived his/her right to a jury trial,45 heard arguments from
the defendant or his/her counsel and the state regarding the appropriate punishment.46
Additionally, the defendant or his/her counsel and the state were authorized to present
“evidence in extenuation, mitigation, and aggravation of punishment.”47 However, “only
such evidence in aggravation . . . [that] the state . . . ha[d] made known to the defendant
prior to his[/her] trial . . . [was] admissible.”48
The statutory aggravating circumstances included:
1. the offense of murder, rape, armed robbery, or kidnapping was committed by a

33

1973 Ga. Laws 74.
Section 26-2401 of the Georgia Code Annotated, pertaining to the prohibition of perjury, will not be
discussed, because in 1973, the Georgia Legislature made perjury no longer punishable by death. See 1973
Ga. Laws 74, § 2. Instead, the legislature made perjury punishable by “a fine of not more than $1,000 or by
imprisonment for not less than one nor more than 10 years, or by both.” Id.
35
Section 27-2401 of the Georgia Code Annotated, pertaining to the preparation of the trial transcript, is
outside the scope of our discussion and will not be discussed at any length. See 1973 Ga. Laws 74, § 6.
36
Section 27-2514 of the Georgia Code Annotated deals with the time and mode of conveying the
prisoner to the penitentiary, which is outside the scope of our discussion and will not be discussed at any
length. See 1973 Ga. Laws 74, § 9.
37
1973 Ga. Laws 74, §§ 1 (referencing GA. CODE ANN . § 27-2534), 3 (referencing GA. C ODE ANN. § 272534.1), 4 (referencing GA. C ODE ANN . § 27-2537), 7 (referencing GA. C ODE ANN . § 26-3102), 8
(referencing GA. C ODE A NN. § 27-2528).
38
See GA. C ODE ANN. §§ 26-3301, 27-2534.1 (1973).
39
See GA. C ODE ANN. §§ 26-2201, 27-2534.1 (1973).
40
See GA. C ODE ANN. §§ 26-1101, 27-2534.1 (1973).
41
See GA. C ODE ANN. §§ 26-2001, 27-2534.1 (1973).
42
See GA. C ODE ANN. §§ 26-1902, 27-2534.1 (1973).
43
See GA. C ODE ANN. §§ 26-1311, 27-2534.1 (1973).
44
1973 Ga. Laws 74, § 1 (referencing GA. CODE ANN . § 27-2534 (1973)).
45
1973 Ga. Laws 74, § 8 (referencing GA. CODE ANN . § 27-2528 (1973)).
46
1973 Ga. Laws 74, § 1 (referencing GA. CODE ANN . § 27-2534 (1973)).
47
Id.
48
Id.
34

10

person with a prior record of conviction for a capital felony, or the offense of
murder was committed by a person who has a substantial history of serious
assaultive criminal convictions;
2. the offense of murder, rape, armed robbery, or kidnapping was committed while
the offender was engaged in the commission of another capital felony, or
aggravated battery, or the offense of murder was committed while the offender
was engaged in the commission of burglary or arson in the first degree;
3. the offender by his act of murder, armed robbery, or kidnapping knowingly
created a great risk of death to more than one person in a public place by means of
a weapon or device which would normally be hazardous to the lives of more than
one person;
4. the offender committed the offense of murder for himself or another, for the
purpose of receiving money or any other thing of monetary value;
5. the murder of a judicial officer, former judicial officer, district attorney or
solicitor or former district attorney or solicitor during or because of the exercise
of his official duty;
6. the offender caused or directed another to commit murder or committed murder as
an agent or employee of another person;
7. the offense of murder, rape, armed robbery, or kidnapping was outrageously or
wantonly vile, horrible or inhuman in that it involved torture, depravity of mind,
or an aggravated battery to the victim;
8. the offense of murder was committed against any peace officer, corrections
employee, or fireman while engaged in the performance of his official duties;
9. the offense of murder was committed by a person in, or who has escaped from,
the lawful custody in a place of lawful confinement; and
10. the murder was committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or custody in a place of lawful confinement, of himself
or another.49
Following the presentation of evidence, the judge charged the jury orally and in writing
to consider “any mitigating circumstances or aggravating circumstances otherwise
authorized by the law and any of the [aforementioned] statutory aggravating
circumstances.”50 For all offenses where the death penalty was a statutorily authorized
punishment, except aircraft hijacking and treason, the jury was required to find at least
one statutory aggravating circumstance beyond a reasonable doubt in order to impose a
sentence of death.51 In addition to finding at least one statutory aggravating
circumstance, the jury also had to affirmatively elect to sentence the defendant to death
by recommending such sentence to the court.52

49
50
51
52

1973 Ga. Laws 74, § 3 (referencing GA. CODE ANN . § 27-2534.1 (1973)).
Id.
Id.
Id.

11

If the jury recommended a sentence of death, it had to identify in writing the aggravating
circumstance(s) found beyond a reasonable doubt.53 The judge was bound by the jury’s
recommended sentence.54 However, if the defendant pleaded guilty or waived a jury
trial, the judge had to determine the appropriate sentence.55 If the sentence was death, the
judge had to identify in writing the aggravating circumstance(s) found beyond a
reasonable doubt.56
In all cases in which a sentence of death was imposed, the Georgia Supreme Court
reviewed the punishment.57 When doing so, the Court was charged with determining the
following:
1. whether the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor;
2. whether, in cases other than treason or aircraft hijacking, the evidence supports
the jury’s or judge’s finding of a statutory aggravating circumstance; and
3. whether the sentence of death was excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant.58
In addition to the Georgia Supreme Court’s automatic review of the death sentence, a
defendant could file a direct appeal with the court challenging the guilty verdict as well
as the death sentence.59 If a defendant filed a direct appeal, the Georgia Supreme Court
consolidated the appeal with its review of the punishment and considered the legal errors
enumerated in the appeal, the sufficiency of the evidence to support the verdict, and the
validity of the sentence.60
B. Constitutionality of Georgia’s 1973 Death Penalty Scheme: Gregg v. Georgia
In 1976, the United States Supreme Court, in Gregg v. Georgia,61 assessed the
constitutionality of Georgia’s 1973 death penalty scheme.62 The Court found that
Georgia’s new death penalty procedures addressed the concerns articulated in Furman v.
Georgia.63 Specifically, it found that the new procedures protected against the arbitrary
and capricious application of the death penalty by requiring a finding of at least one
aggravating circumstance before the death penalty could be imposed and by requiring the

53
54
55
56
57
58
59
60
61
62
63

Id.
1973 Ga. Laws 74, § 7 (referencing GA. CODE ANN . § 26-3102 (1973)).
1973 Ga. Laws 74, § 3 (referencing GA. CODE ANN . § 27-2534.1(c) (1973)).
Id.
1973 Ga. Laws 74, § 4 (referencing GA. CODE ANN . § 27-2537 (1973)).
Id.
1973 Ga. Laws 74, § 4 (referencing GA. CODE ANN . § 27-2537(i) (1973)).
Id.
428 U.S. 153 (1976).
Id. at 207.
Id. at 206-07; Furman v. Georgia, 408 U.S. 238 (1972).

12

Georgia Supreme Court to review the proportionality of all death sentences.64 Given
these safeguards, the Court upheld the constitutionality of Georgia’s 1973 death penalty
scheme.65
C. Constitutionality of Imposing Death for Non-Murder Cases
In a series of cases beginning in 1974 with Gregg v. State,66 the Georgia Supreme Court
considered whether the offense of armed robbery warranted the imposition of the death
penalty.67 In these cases, the Court reversed the defendants’ death sentences for armed
robbery, reasoning that because the death penalty is rarely imposed for that offense, the
death penalty is excessive and disproportionate to the sentences imposed in similar
cases.68
Three years later, on June 29, 1977, the United States Supreme Court, in Coker v.
Georgia,69 held the imposition of the death penalty for the crime of rape to be cruel and
unusual punishment in violation of the Eighth and Fourteenth Amendments of the United
States Constitution.70 The Court reasoned that because rape does not involve the taking
of a life, death is a “grossly disproportionate and excessive punishment.”71 In support of
its decision, the Court noted that the nation largely had rejected death as an acceptable
punishment for rape alone, as evidenced by the lack of state statutes prescribing death for
rape and Georgia juries’ reluctance to sentence convicted rapists to death.72
On the same day the Court issued its decision in Coker, it reversed the imposition of the
death penalty for the offenses of rape and kidnapping with bodily injury in Eberheart v.
Georgia.73 The Court stated that in light of Coker, the imposition of the death penalty for
the offenses of rape and kidnapping with bodily injury also constituted cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments to the United States
Constitution.74

64

Gregg, 428 U.S. at 206-08.
Id. at 207.
66
210 S.E.2d 659, 667 (Ga. 1974). Gregg was appealed to the United States Supreme Court in Gregg v.
Georgia, 428 U.S. 153 (1976). Because the Georgia Supreme Court vacated the death sentences for armed
robbery, the United States Supreme Court did not assess the constitutionality of imposing the death penalty
for an offense that did not take a life, such as armed robbery, rape, or kidnapping. See Gregg, 428 U.S. at
187.
67
Gregg, 210 S.E.2d at 667; Floyd v. State, 210 S.E.2d 810, 814 (Ga. 1974); Jarrell v. State, 216 S.E.2d
258, 270 (Ga. 1975).
68
Gregg, 210 S.E.2d at 667; Floyd, 210 S.E.2d at 814; Jarrell, 216 S.E.2d at 270; see Dorsey v. State,
225 S.E.2d 418, 421 (Ga. 1976) (finding that because the death penalty cannot be imposed for armed
robbery, there was no error in failing to death qualify the jury).
69
433 U.S. 584 (1977).
70
Id. at 591.
71
Id. at 598-99.
72
Id. at 596-97.
73
433 U.S. 917 (1977).
74
Id. at 917.
65

13

Shortly thereafter, in July 1977, the Georgia Supreme Court, in Collins v. State,75 applied
the rationale of Coker to the offenses of armed robbery and kidnapping76 and found that
the death penalty may not be imposed for these offenses.77
D. Amendments to Georgia’s 1973 Death Penalty Scheme
1. 1974 Amendments
In 1974, the Georgia Legislature repealed section 27-2534 of the Georgia Code
Annotated, setting forth the procedures for determining the defendant’s sentence, and
replaced it with section 27-2503, which mirrored section 27-2534, except that it required
the judge to impose the sentence in all felony cases other than those in which the death
penalty is sought.78
2. 1980 Amendments
In 1980, the Georgia Legislature adopted a new statute, section 27-2538 of the Georgia
Code Annotated, requiring the Georgia Supreme Court to establish rules for a unified
review procedure, mandating the presentation of all possible challenges to the conviction,
sentence, and detention of defendants sentenced to death without limiting or restricting
the remedies available through the writ of habeas corpus.79 The new statute also called
upon the Georgia Supreme Court to establish checklists for the trial court, prosecutor, and
defense counsel to be used prior to, during, and after the trial of a death penalty case to
ensure the defense raised or waived all possible claims.80
Pursuant to the legislature’s request, the Georgia Supreme Court adopted the Uniform
Appeal Procedure—containing the “Unified Appeal Outline of Proceedings” and the
“Checklist of Unified Appeal”—on August 15, 1980 and declared that it would be
applicable to all cases in which the death penalty was sought after August 25, 1980.81
3. Georgia Code Recodified

75

236 S.E.2d 759 (Ga. 1977).
Although kidnapping for ransom or with bodily injury are no longer punishable by death, when an
individual is killed during the commission of such offense, it is punishable by death. See Sears v. State,
514 S.E.2d 426, 434 (Ga. 1999); Stanley v. State, 241 S.E.2d 173, 180 (Ga. 1977).
77
Collins, 236 S.E.2d at 760-61.
78
1974 Ga. Laws 854, § 7 (referencing GA. CODE ANN. § 27-2503 (1974)).
79
1980 Ga. Laws 872, § 1 (referencing GA. CODE ANN. § 27-2538 (1980)).
80
Id. (referencing GA. CODE ANN . § 27-2538(b) (1980)).
81
See Marion T. Pope, Jr., A Study of the Unified Appeal Procedure in Georgia, 23 GA. L. REV. 185,
193-94 (1988).
76

14

On November 1, 1982, the Georgia Legislature repealed Georgia’s 1933 code 82 to
recodify, revise, modernize, and reenact the laws of Georgia as the Official Code of
Georgia Annotated (O.C.G.A.).83 Under the new code, the following statutes were
renumbered as follows:
1.
2.
3.
4.
5.
6.

Ga. Code Ann. § 26-3102 became O.C.G.A. § 17-10-31;
Ga. Code Ann. § 27-2503 [formerly § 27-2534] became O.C.G.A. § 17-10-2;
Ga. Code Ann. § 27-2528 became O.C.G.A. § 17-10-32;
Ga. Code Ann. § 27-2534.1 became O.C.G.A. § 17-10-30;
Ga. Code Ann. § 27-2537 became O.C.G.A. § 17-10-35 and § 17-10-37; and
Ga. Code Ann. § 27-2538 became O.C.G.A. § 17-10-36.
4. 1988 Amendments

In 1988, the Georgia Legislature amended section 17-10-36 of the O.C.G.A. and adopted
two new statutes, sections 17-10-35.1 and 17-10-35.2.84
The amendment to section 17-10-36 expanded the application of the unified review
procedure in three ways.85 First, it allowed for challenges to trial proceedings, as well as
to the defendant’s conviction, sentence, and detention.86 Second, it applied the
procedures to defendants who may be sentenced to death in addition to those who have
been sentenced to death.87 Lastly, it made the unified review procedure applicable to
both pretrial and post-trial appellate review.88
The two new statutes, sections 17-10-35.1 and 17-10-35.2, created a procedure by which
the Georgia Supreme Court can review pretrial proceedings in cases in which the death
penalty is sought.89 Section 17-10-35.1 allows the trial judge to initiate review of pretrial
proceedings by filing a report certifying that all pretrial proceedings in the case have been
completed and that the case is ready for trial.90 In addition to filing the report, the trial

82

O.C.G.A. §§ 1-1-9, -10 (1982).
O.C.G.A. § 1-1-2 (1982).
84
1988 Ga. Laws 1364, §§ 4, 5 (referencing O.C.G.A. §§ 17-10-36, -35.1, -35.2 (1988)); see also
O.C.G.A. § 17-7 -131(a)(3), (c)(3), (j) (2004). In 1988, the Georgia Legislature also amended section 17-7131 of the O.C.G.A. by adding three new provisions, which (1) required the resolution of the issue of
mental retardation during the guilt/innocence phase of a capital trial, (2) prohibited the imposition of the
death penalty against all defendants found “guilty but mentally retarded,” and (3) provided for the
imposition of life imprisonment for defendants found “guilty but mentally retarded.” See O.C.G.A. § 17-7131(a)(3), (c)(3), (j) (2004). The amendments to section 17-7-131 are discussed at length in Chapter
Thirteen: Mental Retardation, Mental Illness, and the Death Penalty of this report. See infra.
85
1988 Ga. Laws 1364, § 5 (referencing O.C.G.A. § 17-10-36 (1988)).
86
Id.
87
Id.
88
Id.
89
1988 Ga. Laws 1364, § 4 (referencing O.C.G.A. §§ 17-10-35.1, -35.2 (1988)).
90
Id. (referencing O.C.G.A. § 17-10-35.1 (1988)).
83

15

judge must transmit the report to the state and the defendant.91 Upon receipt of the trial
judge’s report, the state and the defendant may each file a report in the form of a
questionnaire identifying areas of the pretrial proceedings where reversible error may
have occurred.92 The state and defendant may specifically address whether reversible
error occurred with respect to any of the following:
1.
2.
3.
4.
5.
6.

any proceedings with respect to change of venue;
any proceedings with respect to recusal of the trial judge;
any challenge to the jury array;
any motion to suppress evidence;
any motion for psychiatric or other medical evaluation; and
any other matter deemed appropriate by the Georgia Supreme Court.93

The state and the defendant may also file an application for appeal, if applicable, which
may be consolidated with their reports. 94 The reports and the appeal, if any, must then be
transmitted to the Georgia Supreme Court.95 Within twenty days of receiving the reports
and appeal, if any, the Court must decide whether to grant review of the pretrial
proceedings, or portions thereof, or deny review. 96 If the Court grants review, the parties
must submit briefs and may present oral arguments, if ordered by the Court to do so.97
Even if the Court denies review of a case or either party fails to assert its rights under
section 17-10-35.1, the parties are not precluded from raising any issue during the posttrial review of their case that could have been raised under section 17-10-35.1.98
Although section 17-10-35.1 authorizes trial judges to initiate pretrial review, section 1710-35.2 mandates that trial judges first conduct a hearing to determine whether review is
necessary.99 During the hearing, the state and defense may address whether the delay
caused by the pretrial review outweighs the need for the review.100 Unless the pretrial
review would preclude justice from being served, the trial judge must order the review.101
Orders to permit or deny a pretrial review are not appealable.102
5. 1993 Amendments

91
92
93
94
95
96
97
98
99
100
101
102

Id.
Id.
Id.
Id.
Id.
Id.
1988 Ga. Laws 1364, § 4 (referencing O.C.G.A. § 17-10-35.1(c) (1988)).
Id. (referencing O.C.G.A. § 17-10-35.1 (1988)).
Id. (referencing O.C.G.A. § 17-10-35.2 (1988)).
Id.
Id.
Id.

16

In 1993, the Georgia Legislature added three relevant statutes to Georgia’s Death Penalty
Scheme—sections 17-10-30.1, 17-10-31.1, and 17-10-32.1 of the O.C.G.A.
Sections 17-10-30.1 and 17-10-31.1 provide for the imposition of life without parole in
any murder case in which the jury finds one or more statutory aggravating
circumstances103 and makes an affirmative recommendation of life without parole to the
judge.104 Section 17-10-31.1 allows the judge to instruct the jury as to the definition of
“life without parole” and “life imprisonment.”105
In cases in which a jury finds one or more statutory aggravating circumstances but
recommends life without parole, section 17-10-31.1 mandates the imposition of a
sentence of life without parole.106 In cases in which a jury has unanimously found at
least one statutory aggravating circumstance but is unable to reach a unanimous verdict
as to sentence, section 17-10-31.1 requires the judge to dismiss the jury and impose a
sentence of either life imprisonment, if it is a valid sentencing option, or life without
parole.107 The judge may sentence the defendant to life without parole only if s/he finds at
least one aggravating circumstance beyond a reasonable doubt and is informed by the
jury foreperson that upon the jury’s last vote, a majority of the jurors voted for a sentence
of death or life without parole. 108
Section 17-10-31.2 requires a judge to sentence a defendant to life imprisonment if s/he
pleads guilty to an offense for which death or life without parole may be imposed unless
the state has given notice of its intention to seek the death penalty.109 In cases in which
the notice was given, section 17-10-31.2 permits the judge to sentence the defendant to
death or life without parole only if the judge finds at least one statutory aggravating
circumstance beyond a reasonable doubt.110
6. 1996 Amendment
In 1996, the legislature revised the aggravating circumstance pertaining to the murder of
a government official, section 17-10-30(b)(5) of the O.C.G.A., to read as follows:
The murder of a judicial officer, former judicial officer, district attorney or solicitorgeneral, or former district attorney, solicitor, or solicitor-general was committed
during or because of the exercise of his or her official duties. (The additions made by
the amendment are in italics.) 111

103
104
105
106
107
108
109
110
111

1993 Ga. Laws 569, § 4 (referencing O.C.G.A. § 17-10-30.1 (1993)).
1993 Ga. Laws 569, § 5 (referencing O.C.G.A. § 17-10-31.1 (1993)).
Id.
Id.
Id.
Id.
1993 Ga. Laws 569, § 6 (referencing O.C.G.A. § 17-10-31.2 (1993)).
Id.
1996 Ga. Laws 841, § 15 (referencing O.C.G.A. § 17 -10-30(b)(5) (1996)).

17

7. 2002 Amendment
In 2002, the Georgia Legislature amended section 17-10-30(8) of the O.C.G.A. by
replacing the word “fireman” with “firefighter.”112
III. THE PROGRESSION
EXECUTION

OF A

GEORGIA DEATH PENALTY CASE

FROM

ARREST

TO

A. Pre-trial Process
1. Arrest, First Appearance, and Commitment Hearing (“Probable Cause”
Hearing)
An individual arrested for the commission of a crime must be presented before a
magistrate judge for his/her first appearance within forty-eight hours of arrest if arrested
without a warrant,113 or within seventy-two hours of arrest if arrested with a warrant.114
During the first appearance, the judge must inform the accused of the charges and of
his/her rights, including the right to remain silent; the right to a commitment hearing and
the date and location of the commitment hearing, assuming the first appearance does not
cover the commitment hearing issues and the defendant does not waive this right; the
right to a grand jury indictment; and the right to counsel.115 In addition to advising the
accused of his/her right to counsel, the judge also must provide the accused with
information about applying for appointed counsel.116 Lastly, the judge must inform the
accused of his/her right to waive these rights and plead guilty.117
If the accused pleads guilty at his/her first appearance or waives his/her right to a
commitment hearing, the court will bind the case over to the superior court.118 In the
alternative, the accused will proceed to the commitment hearing,119 at which time the
state has the burden of proving that there is probable cause to believe that the accused is
guilty of the offense(s) charged.120 The accused may be represented during the hearing—

112

2002 Ga. Laws 787, § 4 (referencing O.C.G.A. § 17-10-30(8) (2002)); 2002 Ga. Laws 952, § 11
(referencing O.C.G.A. § 17-10-30(8) (2002)).
113
O.C.G.A. § 17-4-62 (2004); GA. U NIF. S UPER. CT. R. 26.1.
114
O.C.G.A. § 17-4-26 (2004); GA. U NIF. S UPER. CT. R. 26.1.
115
O.C.G.A. § 17-4-26 (2004); GA. U NIF. S UPER. CT. R. 26.1.
116
GA. UNIF. SUPER . C T. R. 26.1.
117
Id.
118
GA. UNIF. SUPER . C T. R. 26.2(A)(4); G A. CONST. art. VI, § 4, para. 1 (stating that the superior courts
possess jurisdiction over all felony trials, except those involving juvenile offenders).
119
A commitment hearing may be conducted by any of the following types of judges: state, superior,
probate, magistrate as well as any officer of a municipality who has the criminal jurisdiction of a magistrate
judge. See O.C.G.A. § 17-7-20 (2004).
120
O.C.G.A. § 17-7-23(a) (2004); GA. UNIF. SUP . CT. R. 26.2(A)(5). But see State v. Middlebrooks, 222
S.E.2d 343, 345-46 (Ga. 1976) (holding that “[a] preliminary hearing is not a required step in a felony

18

although s/he does not have a right to appointed counsel until after s/he is indicted—and
both the state and the accused will have the opportunity to present evidence.121 If the
judge finds that probable cause exists, s/he will bind the case over to the superior court.122
2. Grand Jury Indictment
Before the state can proceed with the prosecution of an individual accused of a capital
felony, a grand jury123 must return an indictment charging him/her with the offense. 124 A
capital felony is any offense punishable by death at the time the Georgia Legislature
reinstated the death penalty in 1973. The Georgia Code lists the following offenses as
punishable by death: aircraft hijacking,125 treason, 126 murder, 127 rape, 128 armed robbery,129

prosecution and that once an indictment is obtained there is no judicial oversight or review of the decision
to prosecute because of any failure to hold a commitment hearing”).
121
GA. UNIF. SUPER . C T. R. 26.2(B)(2), (4).
122
O.C.G.A. § 17-7-23(a) (2004); GA. U NIF. S UPER. CT. R. 26.2(A)(7).
123
A grand jury must consist of between sixteen and twenty-three individuals. In order to return an
indictment, at least twelve grand jurors must vote to do so. See O.C.G.A. § 15-12-61(a) (2004).
124
O.C.G.A. §§ 17-7 -50, -54 (2004). It should be noted that individuals accused of a felony offense other
than capital felonies may be prosecuted with an accusation. See O.C.G.A. § 17-7-70 (2004).
125
The crime of aircraft hijacking is prescribed at section 16-5-44 of the Official Code of Georgia
Annotated (O.C.G.A.). Section 16-5-44 states as follows:
(a) A person commits the offense of hijacking an aircraft when he (1) by use of force or (2) by
intimidation by the use of threats or coercion places the pilot of an aircraft in fear of immediate serious
bodily injury to himself or to another and causes the diverting of an aircraft from its intended
destination to a destination dictated by such person.
(b) The offense of hijacking is declared to be a continuing offense from the point of beginning, and
jurisdiction to try a person accused of the offense of hijacking shall be in any county of this state over
which the aircraft is operated.
(c) A person convicted of the offense of hijacking an aircraft shall be punished by death or life
imprisonment.
O.C.G.A. § 16-5-44 (2004).
126
The crime of treason is codified at section 16-11-1 of the O.C.G.A., which states as follows:
(a) A person owing allegiance to the state commits the offense of treason when he knowingly
levies war against the state, adheres to her enemies, or gives them aid and comfort. No person shall be
convicted of the offense of treason except on the testimony of two witnesses to the same overt act or
on confession in open court. When the overt act of treason is committed outside this state, the person
charged therewith may be tried in any county in this state.
(b) A person convicted of the offense of treason shall be punished by death or by imprisonment for life
or for not less than 15 years.
O.C.G.A. § 16-11-1 (2004).
127
The crime of murder is codified at section 16-5-1 of the O.C.G.A. Section 16-5-1 states as follows:
(a) A person commits the offense of murder when he unlawfully and with malice aforethought, either
express or implied, causes the death of another human being.
(b) Express malice is that deliberate intention unlawfully to take the life of another human being which

19

and kidnapping for ransom or with bodily injury.130 Both state and federal case law,
however, have prohibited the imposition of the death penalty for the offenses of armed

is manifested by external circumstances capable of proof. Malice shall be implied where no
considerable provocation appears and where all the circumstances of the killing show an abandoned
and malignant heart.
(c) A person also commits the offense of murder when, in the commission of a felony, he causes the
death of another human being irrespective of malice.
(d) A person convicted of the offense of murder shall be punished by death or by imprisonment for
life.
O.C.G.A. § 16-5-1 (2004).
128
Georgia’s rape statute, section 16-6-1 of the O.C.G.A., states as follows:
(a) A person commits the offense of rape when he has carnal knowledge of:
(1) A female forcibly and against her will; or
(2) A female who is less than ten years of age.
Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male
sex organ. The fact that the person allegedly raped is the wife of the defendant shall not be a defense
to a charge of rape.
(b) A person convicted of the offense of rape shall be punished by death, by imprisonment for life
without parole, by imprisonment for life, or by imprisonment for not less than ten nor more than 20
years. Any person convicted under this Code section shall, in addition, be subject to the sentencing
and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
(c) When evidence relating to an allegation of rape is collected in the course of a medical examination
of the person who is the victim of the alleged crime, the law enforcement agency investigating the
alleged crime shall be responsible for the cost of the medical examination to the extent that expense is
incurred for the limited purpose of collecting evidence.
O.C.G.A. § 16-6-1 (2004).
129
Georgia’s armed robbery statute, section 16-8-41 of the O.C.G.A., in pertinent part, states as follows:
(a) A person commits the offense of armed robbery when, with intent to commit theft, he or she
takes property of another from the person or the immediate presence of another by use of an
offensive weapon, or any replica, article, or device having the appearance of such weapon. The offense
of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.
(b) A person convicted of the offense of armed robbery shall be punished by death or imprisonment for
life or by imprisonment for not less than ten nor more than 20 years.
O.C.G.A. § 16-8-41 (2004).
130
Georgia’s kidnapping statute, section 16-5-40 of the O.C.G.A., states as follows:
(a) A person commits the offense of kidnapping when he abducts or steals away any person without
lawful authority or warrant and holds such person against his will.
(b) A person convicted of the offense of kidnapping shall be punished by imprisonment for not less
than ten nor more than 20 years, provided that a person convicted of the offense of kidnapping for
ransom shall be punished by life imprisonment or by death and provided, further, that, if the person
kidnapped shall have received bodily injury, the person convicted shall be punished by life
imprisonment or by death. Any person convicted under this Code section shall, in addition, be subject
to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
O.C.G.A. § 16-5-40 (2004).

20

robbery, rape, and kidnapping for ransom or with bodily injury where the victim is not
killed.131 Standing alone, the only offenses that are punishable by death are aircraft
hijacking, treason, and murder.
a. Practical Implication of the Finding That Death May Not Be Imposed for
Armed Robbery, Kidnapping, and Rape Where the Victim Is Not Killed
In addition to finding that the death penalty may not be imposed for the offenses of armed
robbery,132 kidnapping for ransom or with bodily injury,133 and rape134 where the victim
is not killed, the Georgia Supreme Court also found that these offenses were no longer
considered “capital felonies” for jurisdictional purposes.135 As a result, the Georgia
Court of Appeals, not the Georgia Supreme Court, has jurisdiction over appeals of
convictions for armed robbery, kidnapping, and rape.136
Armed robbery, rape, and kidnapping for ransom and with bodily injury are still
considered “capital felonies” in at least two contexts: (1) they are capital felonies within
the meaning of that term when it is used to describe a statutory aggravating circumstance
in the death penalty statute;137 and (2) they are capital felonies within the meaning of that
term as it is used in the speedy trial statutes.138
3. Appointment of Counsel
An individual indicted for a capital felony is eligible for appointed counsel139 if s/he can
establish that s/he is indigent.140 The “Standards for Determining Indigence” adopted by
the Georgia Public Defender Standards Council141 pursuant to “The Georgia Indigent

131

See Coker v. Georgia, 433 U.S. 584, 591 (1977); Eberheart v. Georgia, 433 U.S. 917 (1977); Collins v.
State, 236 S.E.2d 759 (Ga. 1977); Jarrell v. State, 216 S.E.2d 258, 270 (Ga. 1975); Floyd v. State, 210
S.E.2d 810, 814 (Ga. 1974); Gregg v. State, 210 S.E.2d 659, 667 (Ga. 1974); Eberheart v. State, 206 S.E.2d
12 (Ga. 1974); see also Sears v. State, 514 S.E.2d 426 (Ga. 1999) (upholding a sentence of death for the
offense of kidnapping with bodily injury where the victim was killed); Moore v. State, 243 S.E.2d 1, 11
(Ga. 1978) (upholding a sentence of death for the offense of rape where the victim was raped and then
killed); Stanley v. State, 241 S.E.2d 173 (Ga. 1977) (upholding a sentence of death for the offense of
kidnapping with bodily injury where the victim was killed).
132
See Gregg, 210 S.E.2d at 667; Floyd, 210 S.E.2d at 814; Jarrell, 216 S.E.2d at 270.
133
See Eberheart, 433 U.S. at 917.
134
Coker, 433 U.S. at 593; Eberheart, 433 U.S. at 917.
135
Harper v. State, 417 S.E.2d 435, 436-38 (Ga. Ct. App. 1992); Collins, 236 S.E.2d at 760-61.
136
Harper, 417 S.E.2d at 436-38; Collins, 236 S.E.2d at 761.
137
See Crawford v. State, 330 S.E.2d 567, 572 (Ga. 1985) (involving kidnapping); Peek v. State, 238
S.E.2d 12, 20 (Ga. 1977) (involving armed robbery); Gregg, 210 S.E.2d at 666-67.
138
See Merrow v. State, 601 S.E.2d 428, 430 (Ga. 2004); Union v. State, 543 S.E.2d 683 (Ga. 2001); Day
v. State, 453 S.E.2d 73 (Ga. Ct. App. 1994); Harper v. State, 417 S.E.2d 435 (Ga. Ct. App. 1992)
(involving armed robbery); White v. State, 414 S.E.2d 296 (Ga. Ct. App. 1991) (involving armed robbery).
139
GA. UNIFIED A PPEAL R. II(A)(1) (stating that two attorneys must be appointed in all capital cases).
140
See O.C.G.A. §§ 17-12-19.3, -121 (2005).
141
The Council was established pursuant to the Indigent Defense Act with the specific mission to:

21

Defense Act of 2003”142 (Indigent Defense Act) define an indigent as “a person who has
been arrested or charged with a crime punishable by imprisonment who lacks sufficient
income or other resources to employ a qualified lawyer to defend him or her without
undue hardship on the individual or his or her dependents.”143
If an individual indicted for a capital felony earns less than 200% of the Federal Poverty
Guidelines and does not possess any other resources that could be used to employ an
attorney without undue hardship, indigence is presumed and the individual is entitled to
appointed counsel.144 An individual who earns more than 200% but less than 300% of
the Federal Poverty Guidelines is presumed to be ineligible for appointed counsel unless
s/he can prove, “to the satisfaction of the Circuit Public Defender’s Office” that either (1)
s/he is unable to obtain qualified counsel due to the “extraordinary cost of the case, as
compared to [his/her] disposable income or other reasonably available resources,” or (2)
“there are other reasons that make it impossible for the person to obtain qualified legal
representation without undue hardship on the person or [his/her] dependants.”145 An
individual denied appointed counsel may appeal the decision to the judge, or if no judge
is assigned, to the court in which his/her case is pending.146
If an individual indicted for a capital felony is eligible for appointed counsel, s/he must
be appointed two attorneys.147 The attorneys must be appointed before the individual
pleads to the charges, which generally occurs at the arraignment.148
4. Pre-Trial Conference: Notice of Intent to Seek the Death Penalty and
Qualifications of Defense Counsel

ensure, independently of political considerations or private interests, that each client
whose cause has been entrusted to a circuit public defender receives zealous, adequate,
effective, timely, and ethical legal representation, consistent with the guarantees of the
Constitution of the State of Georgia, the Constitution of the United States and the
mandates of the Georgia Indigent Defense Act of 2003; to provide all such legal services
in a cost efficient manner; and to conduct that representation in such a way that the
criminal justice system operates effectively to achieve justice.
See Georgia Public Defender Standards Council, Our Mission, at http://www.gidc.com/ (last visited on
Aug. 16, 2005). It should be noted that the Indigent Defense Act applies only to indigent defendants tried
after its effective date of January 1, 2005. See O.C.G.A. § 17-12-14 (2005).
142
See 2003 Ga. Laws 32, § 1, eff. Dec. 31, 2003 (codified at O.C.G.A. §§ 17-12-1 through 17-12-13; §§
17-12-19.1 through 17-12-19.14; §§ 17-12-20 through 17-12-37; §§ 17-12-40 through 17-12-45; §§ 17-1280 through 17-12-88; §§ 17-12-101 through 17-12-108; and §§ 17-12-120 through 17-12-128).
143
Georgia Public Defender Standards Council, Standards for Determining Indigence, at
http://www.gidc.com/cpdsystem-standards-determining_indigence.pdf (last visited on Aug. 16, 2005).
144
Id.
145
Id.
146
Id.
147
GA. UNIFIED A PPEAL R. II(A)(I).
148
GA. UNIF. SUPER . C T. R. 33.2(A).

22

In all cases in which the offense charged is a capital felony, a pre-trial conference must
be held “[a]t the earliest possible opportunity after indictment and before arraignment.”149
The pre-trial conference must be recorded and transcribed.150 At the pre-trial conference,
the prosecuting attorney must announce whether s/he intends to seek the death penalty.151
If s/he intends to seek the death penalty, s/he must file a notice of intent with the clerk of
the superior court.152 The superior court then transmits the notice to the clerk of the
Supreme Court of Georgia.153 If the prosecuting attorney does not seek the death penalty
or seeks the death penalty and thereafter abandons such sentence, the “Unified Appeal
Outline of Proceedings” and the “Unified Appeal Checklist,” promulgated under the
Unified Appeal Procedure, do not apply.154
Following the announcement of the state’s intention to seek the death penalty, defense
counsel must identify themselves and indicate whether they are retained or appointed.155
If appointed, lead defense counsel must indicate whether s/he meets the following
requirements:
1. s/he is a member in good standing of the State Bar or admitted to practice pro
hac vice, and has at least five years criminal litigation experience as a defense
attorney or a prosecuting attorney;
2. s/he has been lead counsel on at least one death-penalty murder trial to verdict
or three capital (non-death penalty) trials to verdict, one of which was
a murder case, or has been co-counsel on two death penalty cases;
3. s/he is familiar with the unified appeal procedures;
4. s/he is familiar with and experienced in the utilization of expert witnesses and
evidence, including but not limited to psychiatric and forensic evidence;
5. s/he has attended within twelve months previous to appointment at least ten
hours of specialized training or educational programs in death-penalty defense, or
upon appointment will agree to take ten hours of training or educational
programs and maintain annually during the pendency of the case ten hours of
training or educational programs; and
6. s/he has demonstrated the necessary proficiency and commitment which
exemplify the quality of representation appropriate to capital cases.156
Similarly, co-counsel must indicate whether s/he meets the following requirements:
1. s/he is a member in good standing of the State Bar with combined three years
criminal trial experience either as a criminal defense attorney or prosecuting

149
150
151
152
153
154
155
156

GA. UNIFIED A PPEAL R. II(C).
Id.
GA. UNIFIED A PPEAL R. II(C)(1).
Id.
Id.
Id.
GA. UNIFIED A PPEAL R. II(C)(2).
GA. UNIFIED A PPEAL R. II(A)(1)(a).

23

attorney;
2. s/he has been lead or co-counsel in at least one (non-death penalty) murder trial
to verdict or in at least two felony jury trials; and
3. s/he has attended within twelve months previous to appointment at least ten
hours of specialized training or educational programs in death-penalty defense, or
upon appointment will agree to take ten hours of training or educational
programs and maintain annually during the pendency of the case 10 hours of
training or education programs. This requirement may be met by viewing videotape instruction and written materials and certifying to the trial court that the
materials have been reviewed.157
If either lead or co-counsel does not meet the requisite qualifications but the superior
court judge finds the attorney otherwise qualified, the judge may petition the Georgia
Supreme Court for authorization to appoint the attorney.158
In addition to confirming the qualifications of defense counsel, the judge also must give
the defendant the opportunity to raise any objections to defense counsel or to the manner
in which defense counsel have conducted or are conducting his/her defense.159
Furthermore, the judge must: (1) provide the defendant, defense counsel, and the
prosecuting attorney with copies of the Unified Appeal Procedure; (2) remind defense
counsel of defendant’s option to participate in reciprocal discovery;160 (3) determine
whether the defendant intends to challenge the arrays of the grand and traverse juries; (4)
review the jury lists to assess whether all of the cognizable groups in that county are
fairly represented, regardless of whether a challenge was raised; (5) review Section I of
the Unified Appeal Checklist with the state and defense counsel; (6) determine which
pre-trial issues the defendant intends to raise and remind him/her that issues not raised
may be waived; (7) establish hearing dates for any pre-trial issues the defendant wishes to
raise; and (8) instruct defense counsel to locate and interview all persons whose
testimony might be helpful for purposes of defense or mitigation of punishment.161
Lastly, the judge must schedule the arraignment.162
5. Arraignment, Pleas, Special Plea of Mental Incompetency to Stand Trial, and
Notice of the Defense’s Intention to Raise the Issue of Insanity or Mental
Illness

157

GA. UNIFIED A PPEAL R. II(A)(1)(b).
GA. UNIFIED A PPEAL R. II(A)(3).
159
GA. UNIFIED A PPEAL R. II(C)(7).
160
GA. UNIFIED APPEAL R. II(C)(4); O.C.G.A. § 17-16-4 (2005); O.C.G.A. § 17-16-2(e) (2005) (stating
that if the defendant elects to have the reciprocal discovery process apply to his/her death penalty trial, then
such process also applies to the sentencing phase of the death penalty trial).
161
GA. UNIFIED A PPEAL R. II(C)(3)-(6), (8), (9).
162
GA. UNIFIED A PPEAL R. II(C)(10).
158

24

During the arraignment, the court must read the indictment and ask the defendant to plead
to the capital felony and any lesser-included offenses charged.163 The defendant may
plead guilty, not guilty,164 or mentally incompetent to stand trial.165 A defendant indicted
for a capital felony may not plead nolo contendere.166
If the defendant pleads guilty to a capital felony, the judge must assess the voluntariness
of the plea, advise the defendant on various matters, and determine the accuracy of the
plea before accepting it. To assess the voluntariness of the plea, the judge must
determine whether the plea was a result of prior plea discussions and a plea agreement
and, if it was, determine the terms of the agreement reached between the state and
defense counsel.167 The judge must also advise the defendant that the recommendations
made by the state are not binding upon the judge and assess whether any other promises
were made or any force or threats were used to obtain the plea.168 The judge must then
advise the defendant of the following: (1) the nature of the charges; (2) the rights waived
upon entrance of a guilty plea; (3) the terms of the plea; (4) that the guilty plea may
impact his/her immigration status, if s/he is not a United States citizen; and (5) the
maximum possible sentence on the charge and the mandatory minimum sentence, if
any.169 Lastly, the judge must assess to his/her satisfaction the factual basis for the
plea.170 The judge may then accept the guilty plea and enter the sentence.
If no plea agreement is reached but the defendant pleads guilty to a capital felony and
waives his/her right to a jury determination of his sentence, the judge must sentence the
defendant to life imprisonment unless the state has filed a notice of intent to seek the
death penalty.171 In cases in which the state filed a notice of intent to seek the death
penalty, the judge may sentence the defendant to life without parole or to death, if the
judge finds beyond a reasonable doubt the existence of at least one aggravating
circumstance in all cases except treason and aircraft hijacking, as such finding is
unnecessary for those offenses.172

163

O.C.G.A. § 17-7-93(a) (2004).
If the defendant stands silent and does not plead guilty or not guilty, the court will enter a plea of not
guilty. See O.C.G.A. § 17-7-94 (2004). Additionally, a plea of not guilty has been held to encompass the
defense of not guilty by reason of insanity. See Gilbert v. State, 220 S.E.2d 262 (Ga. 1975); Abrams v.
State, 154 S.E.2d 443 (Ga. 1967); Gilder v. State, 133 S.E.2d 861 (Ga. 1967); Hubbard v. State, 28 S.E.2d
115 (Ga. 1943); Hankinson v. State, 200 S.E.2d 315 (Ga. Ct. App. 1973).
165
O.C.G.A. §§ 17-7-93(a), -130(a) (2004).
166
O.C.G.A. § 17-7-95(a) (2004).
167
GA. UNIF. SUPER . C T. R. 33.7; see GA. UNIF. SUPER . C T. R. 33.3 (prescribing the state’s right to engage
in plea negotiations with defense counsel and enter into plea agreements).
168
GA. UNIF. SUPER . C T. R. 33.7.
169
GA. UNIF. SUPER . C T. R. 33.8.
170
GA. UNIF. SUPER . C T. R. 33.9.
171
O.C.G.A. §§ 17-10-32, -32.1(b) (2004).
172
O.C.G.A. § 17-10-32.1(b) (2004).
164

25

If the defendant pleads mentally incompetent to stand trial, s/he must do so in writing.173
If the plea is not made during the arraignment, it must be filed with the court within ten
days after the arraignment, unless the court extends the time for filing.174 Once a plea of
mentally incompetent to stand trial is entered, the court must impanel a special jury to
assess the defendant’s competency, which must be resolved before the defendant can
stand trial for the offenses charged.175 If the special jury finds the defendant mentally
incompetent to stand trial, the defendant will be transferred into the custody of the
Department of Human Resources (Department).176
Within ninety days of the defendant’s transfer, the Department must evaluate whether the
defendant is “presently mentally incompetent to stand trial” and if so, whether there is a
“substantial probability that the [defendant] will attain mental competency to stand trial
in the foreseeable future.”177 If the defendant is found to be mentally competent to stand
trial, s/he must be returned to the custody of the court for prosecution.178
If the defendant is found to be mentally incompetent to stand trial and there is not a
substantial probability that s/he will attain mental competency in the foreseeable future,
the defendant must be returned to the custody of the court.179 The court will then conduct
a hearing to determine whether the defendant qualifies for involuntary civil
commitment.180 If s/he does not qualify for civil commitment, the defendant must be
released subject to the provisions of bond and any other conditions set by the court.181
If the defendant is found to be mentally incompetent to stand trial and there is a
substantial probability that the person will attain competency in the foreseeable future,
the Department must retain custody of the defendant for purposes of treatment for an
additional period of time not to exceed nine months.182 If after nine months the defendant
is still not competent to stand trial, the defendant should be civilly committed if s/he
qualifies; and if not, the defendant should be returned to the custody of the court and
released subject to the provisions of bond and any other conditions set by the court. 183
If the defendant does not plead mentally incompetent to stand trial but intends to raise the
issue of insanity, mental illness, mental retardation, or mental incompetence at the time of
the crime or at the time of trial, the defendant must file a “Notice of Intent of Defense to

173
174
175
176
177
178
179
180
181
182
183

O.C.G.A. § 17-7-111 (2004).
O.C.G.A. § 17-7-110 (2004); GA. U NIF. SUPER . CT. R. 31.1.
O.C.G.A. § 17-7-130(a) (2004).
Id.
O.C.G.A. § 17-7-130(b) (2004).
Id.
O.C.G.A. § 17-7-130(b), (e)(2) (2004).
O.C.G.A. § 17-7-130(e)(2) (2004).
Id.
O.C.G.A. § 17-7-130(d) (2004).
Id.

26

Raise Issue of Insanity, Mental Incompetence or Mental Retardation.”184 The notice must
be filed at least ten days before the trial, unless the court adjusts the deadline.185 If the
defendant raises the defense of insanity at the time of the crime, the court must appoint at
least one psychiatrist or licensed psychologist to examine the defendant and testify at
trial.186
If the defendant pleads not guilty, the court must set an appropriate time for a motion
hearing.
6. Motion Hearing
At the motion hearing, the court must hear all previously filed motions.187 Additionally,
the court, the state, and defense counsel must review Section I of the Unified Appeal
Checklist to determine whether there are any pre-trial issues that have not been raised.188
The court must also remind defense counsel to present evidence during both stages of the
capital trial—the guilt/innocence phase and the sentencing phase.189 Lastly, the court
must provide the defendant with an opportunity to state any objections to his/her defense
counsel or to the manner in which defense counsel have conducted or are conducting
his/her defense.190
7. Selection of a Capital Jury
To facilitate the selection of a capital jury, the court must impanel forty-two191
prospective jurors from which the state and defense must select a total of twelve jurors192
and one or more alternative jurors, if deemed necessary by the judge.193 If after striking
prospective jurors from the panel there are fewer than twelve qualified jurors, the
presiding judge must “summon such numbers of persons who are competent jurors as
may be necessary to provide a full panel.”194
In selecting the jury, the judge must ask the prospective jurors the “usual voir dire
questions.”195 The “usual voir dire questions” include the following:

184

GA. UNIF. SUPER . C T. R. 31.4.
GA. UNIF. SUPER . C T. R. 31.1.
186
O.C.G.A. § 17-7-130.1 (2004).
187
GA. UNIFIED A PPEAL R. II(D)(1); G A. UNIF. S UPER. C T. R. 31.2.
188
GA. UNIFIED A PPEAL R. II(D)(2).
189
GA. UNIFIED A PPEAL R. II(D)(3).
190
GA. UNIFIED A PPEAL R. II(D)(4).
191
In cases in which the death penalty is not sought, the court is required to impanel only 30 potential
jurors. See O.C.G.A. § 15-12-160 (2004).
192
O.C.G.A. § 15-12-160 (2004).
193
O.C.G.A. § 15-12-168 (2004).
194
O.C.G.A. § 15-12-160 (2004).
195
O.C.G.A. § 15-12-133 (2004); see also Jordan v. State, 276 S.E.2d 224, 234 (Ga. 1981).
185

27

1. Have you, for any reason, formed and expressed any opinion in regard
to the guilt or innocence of the accused?
2. Have you any prejudice or bias resting on your mind either for or
against the accused?
3. Is your mind perfectly impartial between the state and the accused?
4. Are you conscientiously opposed to capital punishment?196
(“Witherspoon question”).197
All questions pertaining to the prospective jurors’ opposition to (“Witherspoon
questions”) and support of (“reverse-Witherspoon questions”) 198 the death penalty must
be addressed to each prospective juror individually.199 Before ruling on any motion to
strike under Witherspoon, the judge must consult with the state and defense as to whether
there are any additional inquiries.200
The defense and state may each peremptorily challenge fifteen jurors.201 See the Jury
Section for a detailed discussion on the voir dire process.
Once the jury is impaneled, the case proceeds to a pre-trial review hearing.
B. Pre-Trial Review Hearing
Following the completion of all pre-trial proceedings, the court must conduct a hearing to
assess whether interim appellate review (by the Georgia Supreme Court) of the pre-trial
rulings is “appropriate,” meaning that it would serve the “ends of justice in the case.”202
In deciding whether interim appellate review is appropriate, the court must hear from the
state and defense on whether the delay caused by the interim appellate review outweighs

196

O.C.G.A. § 15-12-164(a)(4) (2004); see also Curry v. State, 336 S.E.2d 762, 766 (Ga. 1985) (finding
that the question “Are you conscientiously opposed to capital punishment?” is not so confusing as to render
it unconstitutionally vague).
197
See Witherspoon v. Illinois, 391 U.S. 510 (1968) (holding that “a sentence of death cannot be carried
out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply
because they voiced general objections to the death penalty or expressed conscientious or religious scruples
against its infliction”).
198
See Morgan v. Illinois, 504 U.S. 719 (1992). It should be noted that neither the Georgia Code nor the
Uniform Superior Court Rules include pattern “reverse-Witherspoon” questions.
199
GA. U NIF. SUPER . CT. R. 10.1; Miller v. State, 380 S.E.2d 690, 692 (Ga. 1989) (finding that the judge
did not commit error by death-qualifying each juror); Cargill v. State, 340 S.E.2d 891, 901 (Ga. 1986);
Curry, 336 S.E.2d at 767 (stating that trial judge has “exclusive responsibility for asking all Witherspoon
and reverse-Witherspoon questions”). It is important to note that prior to the 1985 adoption of Uniform
Superior Court Rule 10.1, courts were not required to address Witherspoon and reverse-Witherspoon
questions to the prospective jurors individually. See, e.g., Arnold v. State, 224 S.E.2d 386 (Ga. 1976)
(finding “no error in propounding the Witherspoon and reverse-Witherspoon questions to the veniremen in
a group”).
200
GA. UNIF. SUPER . C T. R. 10.1.
201
O.C.G.A. § 15-12-165 (2005).
202
O.C.G.A. §§ 17-10-35.2, 5-6-34(c) (2004); G A. UNIFIED APPEAL R. II(F)(1).

28

the need for the review.203 If the court finds that interim appellate review is
inappropriate, the court should enter an order to that effect and declare the case ready for
trial.204 An order denying pre-trial review is not appealable. 205
On the other hand, if the court finds that interim appellate review is appropriate, it must
order the review and file with the clerk of the superior court and deliver to the parties a
report in the form of a questionnaire certifying that all pre-trial proceedings have been
completed.206 The report must also indicate whether there is “arguably any reversible
error” with reference to:
1.
2.
3.
4.
5.
6.
7.
8.
9.

any proceedings with respect to change of venue;
any proceedings with respect to recusal of the trial judge;
any challenge to the jury array;
any motion to suppress evidence;
any motion to exclude statements by the defendant;
any motion for psychiatric or other mental or physical evaluation;
any motion for additional legal, investigative, or expert assistance;
any other pre-trial matter which may arguably result in reversible error; and
any other matter deemed appropriate by the Georgia Supreme Court.207

Additionally, if the judge finds that there is “arguably reversible error” with reference to
any ex parte proceedings, s/he must highlight the incident in his/her report in a manner
that does not disclose the ex parte communications.208
Within ten days after the filing of the court’s report or the receipt of the transcript of the
proceedings, whichever is later, both parties may file with the clerk of the superior court
and serve upon the opposing party a report in the form of a questionnaire identifying
whether reversible error arguably occurred with respect to any of the nine matters
mentioned above.209 In conjunction with the report, either party may file an application
to appeal any order, decision, or judgment entered in the case.210
The application for an interlocutory appeal must be in the form of a petition and must
identify the reason(s) for the review and the portions of the record relating to the issues
for which review is sought.211 The original appeal application must be filed with the

203
204
205
206
207
208
209
210
211

O.C.G.A. § 17-10-35.2 (2004); G A. UNIFIED APPEAL R. II(F)(1).
O.C.G.A. § 17-10-35.2 (2004); G A. UNIFIED APPEAL R. II(F)(1).
O.C.G.A. § 17-10-35.2 (2004).
O.C.G.A. § 17-10-35.1(a) (2004); GA. UNIFIED A PPEAL R. II(F)(2).
O.C.G.A. § 17-10-35.1(b) (2004); GA. UNIFIED APPEAL R. II(F)(2).
GA. UNIFIED A PPEAL R. II(F)(2)(i).
O.C.G.A. § 17-10-35.1(a), (b) (2004); G A. UNIFIED APPEAL R. II(F)(3).
O.C.G.A. § 17-10-35.1(a) (2004); GA. UNIFIED A PPEAL R. II(F)(3).
O.C.G.A. §§ 17-10-35.1(a); 5-6-34(b) (2004); GA. UNIFIED APPEAL R. II(F)(3).

29

clerk of the superior court.212 The opposing party may not file a response.213 The
superior court clerk must transfer to the Georgia Supreme Court the trial judge’s report,
the transcript of the proceedings, the reports of the parties, and any application for
appeal.214
Within twenty days after the case is docketed, the Georgia Supreme Court must issue an
order granting review of the pre-trial proceedings, or portions thereof, or denying review
entirely.215 If the Court grants review of any part of the pre-trial proceedings, it must
identify in its order the matters that will be reviewed, including but not limited to any
matters highlighted in any of the reports or in the application for appeal.216 The order
must also establish the briefing schedule.217 The Court may hear oral arguments or may
render a decision on the record and the briefs.218
C. Capital Trial
Cases in which the state has filed a notice of intent to seek the death penalty are heard
before the superior court219 and are conducted in two phases: the guilt/innocence phase,
and if the defendant is found guilty of a capital felony, the penalty phase. Immediately
before the commencement of the guilt/innocence phase, the court must conduct a
conference with the state, defense counsel, and the defendant for the following purposes:
1. the court must hear all remaining, pending motions;
2. the court must ascertain whether there are any last minute defense motions
and give the state and defense counsel the opportunity to present any
previously agreed upon stipulations;
3. the court must assess whether the parties have reviewed Part II(A) through (H)
of the Unified Appeal Checklist and determine whether they are prepared to
raise any trial issues in a timely manner;
4. the court must provide the defendant with the opportunity to raise any
objections to his/her defense counsel or the manner in which defense counsel
have been or are conducting his/her defense.220

212

O.C.G.A. § 17-10-35.1(a) (2004). But see G A. UNIFIED APPEAL R. II(F)(3) (stating that the application
for appeal should be filed with the clerk of the Georgia Supreme Court).
213
O.C.G.A. § 17-10-35.1(a) (2004). But see GA. UNIFIED APPEAL R. II(F)(4) (stating that the opposing
party may “file with the clerk of the Supreme Court an original response and seven copies”).
214
O.C.G.A. § 17-10-35.1(c) (2004). But see GA. UNIFIED APPEAL R. II(F)(4) (stating that the clerk of the
superior court must “transmit to the Supreme Court the report of the trial judge and the portions of the
record relevant to the issues to be addressed”).
215
O.C.G.A. § 17-10-35.1(d) (2004); GA. UNIFIED APPEAL R. II(H)(1).
216
O.C.G.A. § 17-10-35.1(d) (2004); GA. UNIFIED APPEAL R. II(H)(1).
217
O.C.G.A. § 17-10-35.1(d) (2004); GA. UNIFIED APPEAL R. II(H)(1).
218
O.C.G.A. § 17-10-35.1(d) (2004); see also GA. UNIFIED APPEAL R. II(H)(1) (indicating that if either of
the parties wish to present oral arguments, they must request to do so, and the court may grant oral
arguments at its discretion).
219
GA. C ONST. art. VI, § 4, para. 1.
220
GA. UNIFIED A PPEAL R. III(A)(1).

30

Once the conference is completed, the court may proceed to the guilt/innocence phase.
1. Guilt/Innocence Phase
During the guilt/innocence phase, it is the jury’s duty to assess the evidence presented to
determine whether the state has proven that the defendant is guilty of a capital felony, as
charged in the indictment, beyond a reasonable doubt.221 The state and defense will
present opening and closing arguments222 as well as witnesses and other types of
evidence.223 After both sides have presented their evidence but before closing arguments,
the court must hold a conference with the state, defense attorney, and the defendant for
the following purposes:
1. any written requests to charge the jury must be presented for resolution;
2. the court must make a final ruling on any issues for which a tentative ruling or
no ruling was made during the presentation of evidence;
3. the court must hear and the defense may make any timely or otherwise proper
motions or objections and defense counsel must be given the opportunity to
perfect the record by making a tender of proof as to any evidence that was
excluded by the court;
4. the court must ascertain whether the parties have reviewed Part II(I) through
(Q) of the Unified Appeal Checklist and are prepared to raise issues in a
timely manner and advise defense counsel that objections to the state’s closing
argument will be waived unless raised as soon as the grounds for the objection
arise, unless permission is granted to reserve objection until the conclusion of
the argument; and
5. the court must give the defendant an opportunity to raise any objections s/he
may have as to his/her defense counsel or to the manner in which the defense
counsel have conducted or are conducting the defense.224
Following the conference, both parties will present closing arguments and the court
subsequently will instruct the jury on the law that governs the case.225 If, during the trial,
the defendant claimed that s/he was insane or otherwise mentally incompetent at the time

221

O.C.G.A. § 16-1-5 (2004) (stating that each element of the crime must be proven beyond a reasonable
doubt); GA. S UGGESTED P ATTERN JURY INSTRUCTION, VOL. II (CRIMINAL C ASES ) §§ 100.00, 100.25 (3d ed.
2003).
222
In capital cases, opening and closing arguments are limited to two hours for each side unless the court
grants the state and/or defense additional time. See O.C.G.A. § 17-8-73 (2004); GA. UNIF. S UPER. CT. R.
13.1; see also O.C.G.A. § 17-8-74 (2004); GA. UNIF. SUPER . C T. R. 13.2 (referring to requests for
extensions of time).
223
O.C.G.A. §§ 17-8-73, -74 (2004); see also GA. UNIF. S UPER. C T. R. 10.2 (discussing the order of
opening statements in criminal matters).
224
GA. UNIFIED A PPEAL R. III(A)(2).
225
GA. S UGGESTED P ATTERN JURY I NSTRUCTION, VOL. II (CRIMINAL C ASES) §§ 100.00, 100.05 (3d ed.
2003).

31

of the crime, the judge must instruct the jury to consider the verdicts of “not guilty by
reason of insanity at the time of the crime,”226 “guilty but mentally ill at the time of the
crime,”227 and “guilty but mentally retarded” 228 in addition to “guilty” and “not guilty.”229
If the defendant is found not guilty of the capital felony and all other charges, the court
must acquit the defendant and release him/her from detention.230 If the defendant is
found guilty of the capital felony, the case proceeds to the second phase of a death
penalty trial, the sentencing phase.
2. Sentencing Phase
The purpose of the sentencing phase is for the trial jury to determine whether the
appropriate sentence for a defendant convicted of a capital felony is life imprisonment,
life without parole, or death.231 During the sentencing phase, both the state and defense
counsel may make opening and closing arguments and may present witnesses and
evidence regarding any statutory aggravating circumstances and any non-statutory
aggravating or mitigating circumstances.232
The statutory aggravating circumstances are:
1. the offense of murder, rape, armed robbery, or kidnapping was committed by
a person with a prior record of conviction for a capital felony;
2. the offense of murder, rape, armed robbery, or kidnapping was committed
while the offender was engaged in the commission of another capital felony or
aggravated battery, or the offense of murder was committed while the

226

O.C.G.A. §§ 17-7-131(c)(1), 16-3-2, 16-3-3 (2004); GA. S UGGESTED P ATTERN JURY INSTRUCTION ,
VOL. II (CRIMINAL C ASES) §§ 209.00, 209.20 (3d ed. 2003). The court must instruct the jury as follows: “I
charge that should you find the defendant not guilty by reason of insanity at the time of the crime, the
defendant will be committed to a state mental health facility until such time, if ever, that the court is
satisfied that he or she should be released pursuant to law.” See O.C.G.A. § 17-7-31(b)(3)(A) (2004).
227
O.C.G.A. § 17-7-131(c)(2) (2004); GA. S UGGESTED PATTERN JURY I NSTRUCTION, V OL. II (CRIMINAL
CASES ) §§ 209.00, 209.30 (3d ed. 2003). The court must instruct the jury as follows: “I charge you that
should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be given
over to the Department of Corrections or the Department of Human Resources, as the mental condition of
the defendant may warrant.” See O.C.G.A. § 17-7-31(b)(3)(B) (2004).
228
O.C.G.A. § 17-7-131(c)(3) (2004); GA. S UGGESTED PATTERN JURY I NSTRUCTION, V OL. II (CRIMINAL
CASES ) §§ 209.00, 209.40 (3d ed. 2003). The court must instruct the jury as follows: “I charge you that
should you find the defendant guilty but mentally retarded, the defendant will be given over to the
Department of Corrections or the Department of Human Resources, as the mental condition of the
defendant may warrant.” See O.C.G.A. § 17-7-31(b)(3)(C) (2004).
229
O.C.G.A. § 17-7-131(c) (2004); GA. SUGGESTED P ATTERN JURY I NSTRUCTION, V OL. II (CRIMINAL
CASES ) § 209.00 (3d ed. 2003).
230
O.C.G.A. § 17-9-1(a) (2004).
231
O.C.G.A. § 17-10-16(a) (2004).
232
O.C.G.A. § 17-10-30(b) (2004). But see Smith v. State, 510 S.E.2d 1, 10-11 (Ga. 1998) (noting that
the trial court has the discretion to refuse to allow the parties to make opening statements at the beginning
of the sentencing phase of a capital trial).

32

offender was engaged in the commission of burglary or arson in the first
degree;
3. the offender, by his/her act of murder, armed robbery, or kidnapping,
knowingly created a great risk of death to more than one person in a public
place by means of a weapon or device which would normally be hazardous to
the lives of more than one person;
4. the offender committed the offense of murder for himself or another, for the
purpose of receiving money or any other thing of monetary value;
5. the murder of a judicial officer, former judicial officer, district attorney or
solicitor-general, or former district attorney, solicitor, or solicitor-general was
committed during or because of the exercise of his/her official duties;
6. the offender caused or directed another to commit murder or committed
murder as an agent or employee of another person;
7. the offense of murder, rape, armed robbery, or kidnapping was outrageously
or wantonly vile, horrible, or inhuman in that it involved torture, depravity of
mind, or an aggravated battery to the victim;
8. the offense of murder was committed against any peace officer, corrections
employee, or firefighter while engaged in the performance of his official
duties;
9. the offence of murder was committed by a person in, or who has escaped
from, the lawful custody of a peace officer or place of lawful confinement; or
10. the murder was committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or custody in a place of lawful confinement, of
himself or another.233
Additionally, the state may present evidence illustrating the emotional impact of the
crime on the victim, his/her family, and the community.234 This evidence is commonly
referred to as “victim impact evidence” and may include the testimony of an individual
who possessed personal knowledge of the victim and was aware of the harm caused by
the crime.235 In his/her testimony, the witness may do any of the following:
1. describe the nature of the offense;
2. itemize any economic loss suffered by the victim or the family of the victim,
if restitution is sought;
3. identify any physical injury suffered by the victim as a result of the offense
along with its seriousness and permanence;
4. describe any change in the victim’s personal welfare or familial relationships
as a result of the offense;
5. identify any request for psychological services initiated by the victim or the
victim’s family as a result of the offense; and

233

O.C.G.A. § 17-10-30 (2004).
O.C.G.A. § 17-10-1.2(a)(1) (2004); see G A. S UGGESTED P ATTERN JURY I NSTRUCTION, VOL. II
(CRIMINAL CASES ) § 303.30 (3d ed. 2003) (describing purpose of “victim impact evidence”).
235
O.C.G.A. § 17-10-1.2(a)(1) (2004).
234

33

6. discuss any other information related to the impact of the offense upon the
victim, the victim’s family, or the community.236
In response to the victim impact evidence, the defense may cross-examine the witnesses
and introduce rebuttal evidence.237
After the presentation of evidence but before closing arguments, the court must hold a
conference with the state, defense counsel, and the defendant for the following purposes:
1. any written requests to charge the jury must be presented to the court for
rulings;
2. the court must make a final ruling as to any issues raised during the sentencing
phase for which a tentative ruling or no ruling was made during the
presentation of evidence;
3. the court must again review Part III of the Unified Appeal Checklist with the
state and the defense counsel as well as hear any timely and otherwise proper
motions or objections the defendant wishes to present and allow defense
counsel to perfect the record by making a tender of proof as to any evidence
that was excluded by the court—including potentially mitigating evidence;
4. the court must advise the defense counsel that any objections to the state’s
closing argument will be considered waived if not raised as soon as the
grounds for objection arise—unless the court grants permission to reserve
objection until the end of the argument; and
5. the court must provide the defendant with any opportunity to state any
objections s/he may have to defense counsel or to the manner in which
defense counsel have conducted and are conducting his/her defense.238
Following the conference, the parties may present their closing arguments. The court
thereafter will instruct the jury orally and in writing to consider “all of the evidence
received [] in court in both stages of the proceeding” and “facts and circumstances, if
any, in extenuation, mitigation, or aggravation of punishment” when assessing the
appropriate punishment for the defendant. 239
Once the jury has been charged but before jury deliberations begin, the court must
conduct a conference with the state, defense counsel, and the defendant for the following
purposes:
1. the court must review Part III(C) and (D) of the Unified Appeal Checklist
with the state and defense counsel and any issues as to state and defense
arguments or as to the charge of the court must be presented and decided—

236
237
238
239

O.C.G.A. § 17-10-1.2(b) (2004).
O.C.G.A. § 17-10-1.2(c) (2004).
GA. UNIFIED A PPEAL R. III(B)(2).
GA. SUGGESTED PATTERN JURY INSTRUCTION , VOL. II (CRIMINAL C ASES ) § 303.20 (3d ed. 2003).

34

defense counsel must be advised that any such issues not timely raised are
waived;
2. the court must review Part III(E) of the Unified Appeal Checklist with the
state and defense counsel as well as advise defense counsel that any objections
as to the form of the verdict must be raised when the verdict is returned and
that a poll of the jurors is required; and
3. the court must provide the defendant an opportunity to raise any objections as
to his/her defense counsel or to the manner in which defense counsel have
conducted or are conducting the defense.240
Following the conference, the jury must deliberate to determine the appropriate sentence
for the defendant. Apart from cases involving the offenses of aircraft hijacking or
treason, in order to impose a sentence of death the jury must find, beyond a reasonable
doubt, the existence of one or more statutory aggravating circumstances and it must
recommend to the court a sentence of death.241 Similarly, in order to impose a sentence of
life without parole, the jury must find, beyond a reasonable doubt, the existence of at
least one statutory aggravating circumstance and it must recommend a sentence of life
without parole to the court.242 Moreover, the jury may sentence the defendant to life
imprisonment for any reason or no reason at all, even if the jury finds, beyond a
reasonable doubt, the existence of one or more aggravating circumstances.243
If the jury finds the existence of at least one statutory aggravating circumstance beyond a
reasonable doubt and recommends to the court the sentence of either death or life without
parole, the jury must identify in writing, signed by the jury foreperson, the aggravating
circumstance(s) found beyond a reasonable doubt and the court must then enter the
sentence recommended by the jury.244
If the jury finds one or more aggravating circumstances beyond a reasonable doubt but
cannot reach a unanimous verdict as to the sentence, the judge must dismiss the jury and
impose a sentence of either life imprisonment or life without parole.245 The court may
impose a sentence of life without parole only if the court finds beyond a reasonable doubt
the existence of at least one aggravating circumstance and the court has been informed by
the jury foreman that upon the jury’s last vote, a majority of the jurors cast their vote for
a sentence of death or for a sentence of life without parole.246

240

GA. UNIFIED A PPEAL R. III(B)(3).
O.C.G.A. § 17-10-30(c) (2004). In cases involving the offense of aircraft hijacking or treason, a
sentence of death may be imposed without a finding of one or more aggravating circumstances. Id.
242
O.C.G.A. § 17-10-30.1(a) (2004).
243
GA. SUGGESTED P ATTERN JURY INSTRUCTION , VOL. II (CRIMINAL C ASES) § 303.40 (3d ed. 2003); see
also O.C.G.A. § 17-9-3 (2004) (stating that the jury in all capital cases, except those involving murder, may
find the defendant guilty but make a “recommendation for mercy” even if the jury found one or more
aggravating circumstances).
244
O.C.G.A. §§ 17-10-30(c), -31, -30.1(c), -31.1(b) (2004).
245
O.C.G.A. § 17-10-31.1(c) (2004).
246
Id.
241

35

In cases in which the defendant waived his/her right to a jury, the judge must determine
the appropriate sentence.247 The judge may impose a sentence of death only if s/he finds
the existence of at least one aggravating circumstance, except in cases involving treason
or aircraft hijacking where no aggravating circumstances are necessary to impose a
sentence of death.248 Similarly, the judge may impose a sentence of life without parole
only if s/he finds one or more aggravating circumstances.249 If the judge finds one or
more aggravating circumstances and wishes to sentence the defendant to either death or
life without parole, s/he must identify in writing the statutory aggravating circumstance
found beyond a reasonable doubt and enter his/her judgment.250
Upon a judgment of death, the judge must state the sentence in writing251 and direct that
the defendant be “delivered to the Department of Corrections for execution of the death
sentence.”252 Additionally, within forty-five days from the jury’s verdict, the court
reporter must file with the superior court a complete transcript of all phases of the case
unless the reporter has obtained an extension from the judge.253
D. Motion for a New Trial, Direct Appeal, and Death Sentence Review by the
Georgia Supreme Court
Following a conviction for a capital felony and a sentence of death, the defendant254 may
challenge his/her conviction and death sentence by: (1) filing a motion for a new trial
with the superior court, and/or (2) filing a direct appeal with the Georgia Supreme
Court.255 If the defendant does not initiate any sort of review, the case will automatically
be appealed to the Georgia Supreme Court within ten days of the filing of the trial
transcript by the court reporter of the superior court.256 This automatic review will occur
even if the defendant does not wish to appeal his/her conviction or sentence.257
1. Motion for a New Trial
If the defendant decides to file a motion for a new trial,258 s/he has the right to be
represented by appointed or retained counsel while the motion is pending.259 The

247

O.C.G.A. §§ 17-10-30, -30.1(c) (2004).
O.C.G.A. § 17-10-30(c) (2004).
249
O.C.G.A. § 17-10-30.1(c) (2004).
250
O.C.G.A. §§ 17-10-30, -30.1(c) (2004).
251
O.C.G.A. § 17-10-33 (2004).
252
O.C.G.A. § 17-10-38(b) (2004).
253
GA. UNIFIED A PPEAL R. IV(A)(1).
254
For purposes of clarity, we have continued to use the term “defendant” throughout the direct
appeal/death penalty review section.
255
GA. UNIFIED A PPEAL R. IV(A)(1)(a); O.C.G.A. § 17-10-35 (2004).
256
GA. UNIFIED A PPEAL R. IV(A)(3)(a)(1); O.C.G.A. § 17-10-35 (2004).
257
GA. UNIFIED A PPEAL R. IV(A)(1)(a).
258
O.C.G.A. § 5-5-42(d) (2004) (illustrating the form for a “Motion for a New Trial”).
259
UNIFIED APPEAL R. IV(A)(2)(d) (2004).
248

36

defendant may raise any issue in his/her motion but must file the motion within thirty
days of the entry of judgment.260 The court will not accept untimely motions, including
those seeking performance of DNA testing,261 unless the defendant establishes “good
cause” for the delay.262 Similarly, successive motions relating to the same verdict or
judgment will not be accepted except in “extraordinary circumstances.” 263
Once the defendant has filed the motion for a new trial, the court must hear the motion
“as promptly as possible.”264 The hearing on the motion is not limited to the issues raised
in the motion.265
The court may grant a motion for a new trial for any of the following reasons:
1. the jury’s verdict is found to be contrary to the evidence and to the principles
of justice and equity; 266
2. the jury’s verdict may be decidedly and strongly against the weight of the
evidence even though there may appear to be some slight evidence in favor of
the finding;267
3. material evidence was illegally admitted or illegally withheld from the jury
over the objection of the defendant;268
4. newly-discovered material evidence was uncovered after the verdict against
the defendant and brought to the attention of the court within thirty days after
the entry of the judgment; and 269
5. any other non-statutory ground articulated in the motion that s/he believes
warrants a new trial.270
Additionally, the court may grant a new trial upon its own motion within thirty days of
the entry of the judgment.271
If the court grants the motion, a new trial must be scheduled as if it were the original
trial.272 If the motion is denied, the defendant may appeal the denial of the motion or file
a direct appeal of his/her conviction and sentence with the Georgia Supreme Court.273

260

O.C.G.A. § 5-5-40(a), (d) (2004).
O.C.G.A. § 5-5-41(c) (2004).
262
O.C.G.A. § 5-5-41(a) (2004).
263
O.C.G.A. § 5-5-41(b) (2004).
264
GA. UNIF. SUPER . C T. R. 41.1.
265
GA. UNIFIED A PPEAL R. IV(A)(2)(c).
266
O.C.G.A. § 5-5-20 (2004).
267
O.C.G.A. § 5-5-21 (2004).
268
O.C.G.A. § 5-5-22 (2004).
269
O.C.G.A. § 5-5-23 (2004).
270
O.C.G.A. § 5-5-25 (2004).
271
O.C.G.A. § 5-5-40(h) (2004).
272
O.C.G.A. § 5-5-48 (2004).
273
O.C.G.A. § 5-6-38(a) (2004) (discussing filing deadlines in instances in which the defendant files a
motion for a new trial before filing a direct appeal).
261

37

Within twenty days of the hearing on the motion, the court reporter must file with the
superior court a complete transcript of the proceedings on the motion for a new trial.274
Additionally, in cases in which the motion was denied, the superior court must transmit
the case to the Georgia Supreme Court for review of the defendant’s sentence within
thirty days after the entry of the order denying the motion, regardless of the defendant’s
decision to appeal.275
2. Direct Appeal and Sentence Review by the Georgia Supreme Court
The defendant also may challenge his/her conviction and death sentence by filing a notice
of direct appeal with the Georgia Supreme Court.276 The notice must be filed within
thirty days after entry of the judgment except in cases in which the defendant filed a
motion for a new trial.277 In these cases, the notice must be filed within thirty days after
the entry of the order on the motion.278 One filing extension, not to exceed thirty days,
may be granted at the discretion of the Court.279
The state as well as the defense must file appellate briefs within twenty days after the
case is docketed.280 The defense must also prepare an enumeration of errors, which
concisely identifies each and every error relied upon, and incorporate the enumeration
into the brief. 281 Oral arguments are mandatory 282 but are limited to thirty minutes per
side.283
Regardless of whether the defendant files a direct appeal, the Georgia Supreme Court
must review all death sentences.284 If a direct appeal is filed, it must be consolidated with
the Georgia Supreme Court’s review of the defendant’s death sentence.285 In cases in
which the defendant does not file a notice of appeal, the state and defense counsel may
submit briefs and present oral arguments on the issue of the death sentence.286
In reviewing the death sentence, the Court must determine the following:
1. whether the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor;
274
275
276
277
278
279
280
281
282
283
284
285
286

GA. UNIFIED A PPEAL R. IV(A)(2)(e).
GA. UNIFIED A PPEAL R. IV(A)(3)(a)(2).
O.C.G.A. §§ 5-6-34(a)(1), -37 (2004).
O.C.G.A. § 5-6-38(a) (2004).
Id.
O.C.G.A. § 5-6-39(a)(1), (c) (2004).
GA. SUP . C OURT R. 10 (2004).
O.C.G.A. § 5-6-40 (2004); GA. S UP. COURT R. 19 (2004).
GA. SUP . C OURT R. 50 (2004).
GA. SUP . C OURT R. 54 (2004).
GA. UNIFIED A PPEAL R. IV(A)(1)(a), (A)(3)(a)(2).
O.C.G.A. § 17-10-35(f) (2004).
O.C.G.A. § 17-10-35(d) (2004).

38

2. whether, in cases other than treason or aircraft hijacking, the evidence
supports the jury’s or judge’s finding of a statutory aggravating circumstance;
and
3. whether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant. 287
In its review of death penalty cases, whether or not a direct appeal has been filed, the
Georgia Supreme Court also must “review each of the assertions of error timely raised by
the [defendant] during the [superior court] proceedings . . . regardless of whether an
assertion of error was presented to the [superior court] by motion for a new trial and
regardless of whether error is enumerated in the [Georgia] Supreme Court. However,
except in cases involving plain error, assertions of error not raised on appeal [are]
waived.”288
Following the review of the death sentence and any enumerations of error, the Georgia
Supreme Court may affirm the death sentence, or set aside the death sentence and remand
the case for resentencing, as well as sua sponte correct any errors found in the superior
court proceedings289 and vacate the conviction and remand to the superior court for
further proceedings.290 The Court’s decision must reference the cases it considered when
reviewing the proportionality of the defendant’s death sentence.291
If the Court affirms the death sentence, the defendant may petition for a writ of certiorari
with the United States Supreme Court.292 The petition must be filed within ninety days of
the judgment affirming the defendant’s death sentence. 293 The United States Supreme
Court may decline or accept the defendant’s case for review.294 If the United States
Supreme Court reviews the case, the Court may affirm the conviction and the sentence,
affirm the conviction and overturn the sentence, or overturn both the conviction and
sentence.295
If the Court affirms the conviction and sentence and the defendant wishes to continue
challenging his/her conviction and sentence, s/he may petition for writ of habeas corpus
under state law.
E. State Habeas Corpus

287
288
289
290
291
292
293
294
295

O.C.G.A. § 17-10-35(c) (2004).
GA. UNIFIED A PPEAL R. IV(B)(2).
O.C.G.A. § 17-10-35(e)(1), (2) (2004).
See generally O.C.G.A. § 17-10-35(f) (2004).
O.C.G.A. § 17-10-35(e) (2004).
28 U.S.C. § 1257 (2004).
GA. SUP . C OURT R. 13(1) (2004).
GA. SUP . C OURT R. 16(2)-(3) (2004).
28 U.S.C. § 2106 (2004).

39

Any individual “restrained of his[/her] liberty” as a result of a death sentence imposed by
“any state court of record” may petition for a writ of habeas corpus to challenge the
denial of his/her rights under the United States Constitution or the Georgia
Constitution.296 The petition must set forth the following:
1.
2.
3.
4.
5.
6.

The proceedings in which the petitioner was convicted;
The date of the final judgment;
How the petitioner’s rights were violated;
All possible grounds of relief;
The claims raised at trial and direct appeal, if taken; and
Any previous proceedings taken to secure relief from his/her conviction,
including state habeas corpus petitions, and in regard to state habeas corpus
petitions, all claims that were raised in the petition.297

The petitioner must verify the petition with his/her oath or the oath of someone acting on
his/her behalf.298 The petitioner must also attach to the petition any affidavits,299 records,
or other evidence supporting his/her allegations or explain why s/he was unable to attach
the necessary documents.300
Generally, the petition must be filed with the superior court in the county in which the
petitioner is detained.301 The petitioner may amend his/her petition up to 120 days after
filing the original petition.302 Any grounds of relief not raised by the petitioner in his/her
original or amended petition are considered waived unless otherwise allowed by the
United States Constitution or the Georgia Constitution, or unless the judge presiding over
the petition finds that the grounds asserted could not reasonably have been raised in the
original or amended petition.303 The state must file a response or move to dismiss the
petition within twenty days after the petition has been filed and docketed, or “within such
further time” as set by the court.304
In all cases in which the petitioner is challenging, for the first time, state court
proceedings resulting in the death penalty, the superior court clerk of the county where
the petition was filed must, within ten days of the filing of the petition, serve a copy of

296

See O.C.G.A. §§ 9-14-41, -42(a) (2004).
O.C.G.A. §§ 9-14-44, -51 (2004).
298
O.C.G.A. § 9-14-44 (2004).
299
All affidavits must include the address and telephone number of the affiant; must be accompanied by a
notice of the party’s intention to introduce it into evidence; and must be served upon the opposing party at
least ten days in advance of the date set for the hearing in the case. See O.C.G.A. § 9-14-48(c) (2004).
300
O.C.G.A. § 9-14-44 (2004).
301
O.C.G.A. § 9-14-43 (2004) (noting that “if the petitioner is not in custody or is being detained under
the authority of the United States, and of the several states other than Georgia, or any foreign state, the
petition must be filed in the superior court of the county in which the conviction and sentence which is
being challenged was imposed”).
302
GA. UNIF. SUPER . C T. R. 44.7.
303
O.C.G.A. § 9-14-51 (2004).
304
GA. UNIF. SUPER . C T. R. 44.3; O.C.G.A. § 9-14-47 (2004).
297

40

the petition upon the Executive Director of the Council of Superior Court Judges of
Georgia (Council) thereby requesting assistance with the assignment of a judge to hear
the petition.305 Within thirty days of receipt of the copy of the petition, the President of
the Council must assign the case to a judge who is not within the circuit in which the
conviction or sentence was imposed.306
Once a judge has been assigned, s/he may schedule a preliminary conference with the
state and defense counsel.307 The judge may also enter a scheduling order.308 If the
petitioner desires to file pre-trial motions, s/he must do so within sixty days after the
filing of the petition. Similarly, state motions must be filed within ninety days after the
filing of the petition.309 Additionally, if discovery is authorized it must be completed
within 120 days after the filing of the petition.310 The evidentiary hearing must be
conducted within 180 days of the filing of the petition. 311
Within sixty days after the evidentiary hearing, the petitioner may file a brief in support
of his/her petition,312 and if directed by the court, s/he “shall file proposed findings of fact
and conclusions of law and a proposed order.”313 Within ninety days after the evidentiary
hearing, the respondent may file a brief in response, and, if directed by the court, the
respondent “shall file proposed findings of fact and conclusions of law and a proposed
order.”314 Within 100 days after the evidentiary hearing, the petitioner may file any reply
brief.315 The judge has the discretion to shorten time periods for various actions in a
habeas corpus proceeding, or to lengthen these periods for “good cause.”316
When making a decision in all cases, including those challenging for the first time state
court proceedings resulting in the death penalty, the judge must review the trial record
and the transcript of the proceedings to assess whether the petitioner complied with
Georgia’s procedural rules at trial and on appeal and whether the petitioner, if s/he had a
new attorney on appeal, raised any claim of ineffective assistance of trial counsel on
appeal.317 If the petitioner failed to comply with Georgia’s procedural rules or failed on
direct appeal to raise a claim of ineffective assistance of counsel that could have been
raised, the judge must deny his/her petition unless the petitioner shows cause for the

305
306
307
308
309
310
311
312
313
314
315
316
317

O.C.G.A. § 9-14-47.1(b) (2004); GA. UNIF. S UPER. CT. R. 44.2.
O.C.G.A. § 9-14-47.1(b) (2004); GA. UNIF. S UPER. CT. R. 44.4(A).
GA. UNIF. SUPER . C T. R. 44.5.
Id.
O.C.G.A. § 9-14-47.1(c)(3) (2004); G A. UNIF. S UPER. CT. R. 44.6.
O.C.G.A. § 9-14-47.1(c)(2) (2004); G A. UNIF. S UPER. CT. R. 44.7.
O.C.G.A. § 9-14-47.1(c)(4) (2004); G A. UNIF. S UPER. CT. R. 44.8, 44.9.
O.C.G.A. § 9-14-44 (2004); GA. U NIF. S UPER. CT. R. 44.11.
GA. UNIF. SUPER . C T. R. 44.11.
Id.
Id.
GA. UNIF. SUPER . C T. R. 44.5.
O.C.G.A. § 9-14-48(d) (2004).

41

noncompliance and actual prejudice.318 In all cases, habeas corpus relief must be granted
to avoid a miscarriage of justice.319
The judge must issue a ruling on the petition and written findings of fact and conclusions
of law within ninety days of the filing of the respondent’s brief, or of the filing of the
petitioner’s reply brief, if filed.320 If the judge finds in favor of the petitioner, it must
“enter an appropriate order with respect to the judgment or sentence challenged in the
proceedings and such supplementary orders as to rearraignment, retrial, custody, or
discharges as may be necessary and proper.”321 In cases in which the petition is denied,
the petitioner may appeal the decision by filing a written application for “a certificate of
probable cause to appeal” with the clerk of the Georgia Supreme Court and a notice of
appeal with the clerk of the relevant superior court within thirty days from entry of the
order denying relief.322 In considering whether probable cause exists to appeal, the
Georgia Supreme Court may consider the record and transcript.323 If the court finds that
probable cause to appeal does exist, the proper standard of review on appeal “requires
that [the reviewing court] accept the habeas court’s factual findings and credibility
determinations unless clearly erroneous, but [the reviewing court will] independently
apply the legal principles to the facts.”324 If the court finds that probable cause does not
exist to appeal, the application will be denied.
The petitioner may seek review of this denial by petitioning for a writ of certiorari with
the United States Supreme Court.325
F. Federal Habeas Corpus
A petitioner wishing to challenge his/her conviction and death sentence as being in
violation of federal law may file a petition for a writ of habeas corpus with the
appropriate federal judicial district.326 Georgia has three federal judicial districts: the
Northern, Middle, and Southern. The petitioner may be entitled to appointed counsel to
prepare his/her petition if s/he “is or becomes financially unable to obtain adequate
representation or investigative, expert, or other reasonably necessary services.”327

318

Id.
Id.
320
GA. UNIF. SUPER. C T. R. 44.12.
321
O.C.G.A. § 9-14-48(d) (2004).
322
O.C.G.A. § 9-14-52(b) (2004). It should be noted that in cases in which the petitioner is granted relief,
the state may appeal without obtaining a certificate of probable cause. See id.
323
O.C.G.A. § 9-14-52(b), (c) (2004) (noting that the superior court must then transmit to the Georgia
Supreme Court the record and, if requested, the transcript).
324
West v. Waters, 533 S.E.2d 88, 90 (Ga. 2000) (citing Zant v. Means, 522 S.E.2d 449 (Ga. 1999)).
325
See supra notes 292-295 and accompanying text.
326
See infa note 333 and accompanying text.
327
21 U.S.C. § 848(q)(4)(B) (2004); McFarland v. Scott, 512 U.S. 849, 856-57 (1994).
319

42

Prior to filing a petition for a writ of habeas corpus, the petitioner must have raised all
relevant federal claims in state court; the failure to exhaust all state remedies available on
appeal and collateral review is grounds to dismiss the petition.328 The district court
cannot consider an unexhausted claim presented in the petition unless it is plainly
meritless.329
In a petition for a writ of habeas corpus, the petitioner must identify and raise all possible
grounds of relief and identify the facts supporting each ground. 330 If the petitioner
challenges a state court’s determination of a factual issue, the petitioner has the burden of
rebutting, by clear and convincing evidence, the presumption that state court factual
determinations are reasonable in light of the evidence presented in the state court. 331 If
the petitioner raises a claim that the state court decided on the merits, the petitioner must
establish that the state court’s decision of the claim was contrary to or involved an
unreasonable application of federal law or was based on an unreasonable determination
of the facts in light of the evidence presented.332
The petition must be filed in the federal district court in the district in which the petitioner
is in custody or in the district where the petitioner was convicted and sentenced.333 The
deadline for filing the petition is one year334 from the date on which: (1) the judgment

328

28 U.S.C. § 2254(b)(1) (2004). Under certain circumstances, a federal district court can stay a petition
that raises both exhausted and unexhausted constitutional violations to allow the petitioner an opportunity
to present his unexhausted claims in state court. Rhines v. Weber, 125 S. Ct. 1528 (2005).
329
28 U.S.C. § 2254(b)(1), (2) (2004).
330
RULE 2(c) OF THE RULES GOVERNING § 2254 C ASES IN THE U.S. D IST. C T.
331
28 U.S.C. § 2254(e)(1) (2004).
332
28 U.S.C. § 2254(d) (2004).
333
28 U.S.C. §§ 2254, 2241(d) (2004); R ULE 3(a) OF THE R ULES GOVERNING § 2254 C ASES IN THE U.S.
DIST. C T.; F ED. R. APP. P. 22(a) (2004).
334
In states that have “opted-in” to the “Special Habeas Corpus Procedures in Capital Cases,” 28 U.S.C.
§§ 2261 through 2266, the deadline for federal habeas corpus petitions is 180 days after the conviction and
death sentence have been affirmed on direct review or the time allowed for seeking such review has
expired. See 28 U.S.C. § 2263(a) (2004). A state may only “opt-in” to these expedited procedures if it has
established by state law, rule of the court of last resort, or by another agency authorized by state law a
mechanism for appointing, compensating, and reimbursing competent counsel for indigent prisoners in
state post-conviction proceedings. See 28 U.S.C. § 2261(b) (2004). The state also must provide either
through court rule or statute standards of competency for the appointment of counsel. See 28 U.S.C. §
2261(b) (2004). The mechanism for appointing, compensating, and reimbursing competent counsel must:
(1) offer counsel to all state prisoners under capital sentence, and
(2) provide the court of record the opportunity to enter an order (a) appointing one or more counsel to
represent the prisoner upon a finding that the prisoner is indigent and accepted the offer or is unable
completely to decide whether to accept or reject the offer; (b) finding, after a hearing if necessary, that
the prisoner rejected the offer of counsel and made the decision with an understanding of its legal
consequences; or (c) denying the appointment of counsel upon a finding that the prisoner is not
indigent.
See 28 U.S.C. § 2261 (2004). It does not appear that Georgia is eligible to “opt in” to the Special Habeas
Corpus Procedures in Capital Cases given that it does not provide counsel for state habeas corpus.

43

became final; (2) the State impediment that prevented the petitioner from filing was
removed; (3) the United States Supreme Court recognized a new right and made it
retroactively applicable to cases on collateral review; or (4) the underlying facts of the
claim(s) could have been discovered through due diligence.335 The one-year time
limitation may be tolled if the petitioner is pursing a properly filed application for state
post-conviction relief or other collateral review.336
Once the petition is filed, a district court judge reviews it to determine whether, based on
the face of the petition, the petitioner is entitled to relief in the district court. 337 If the
judge finds that the petitioner is not entitled to relief, the judge may summarily dismiss
the petition.338 In contrast, if the judge finds that the petitioner may be entitled to district
court relief, the judge will order the respondent to file an answer replying to the
allegations contained in the petition.339 In addition to the answer, the respondent must
file all portions of the state court transcripts it deems relevant to the petition.340 The
judge on his/her own motion or on the motion of the petitioner may order that additional
portions of the state court transcripts be made part of the record.341
Additionally, either party may submit a request for discovery.342 The judge may grant the
request if the requesting party establishes “good cause.”343 The judge also may direct, or
the parties may request, expansion of the record by providing additional evidence
relevant to the merits of the petition.344 This may include: letters predating the filing of
the petition, documents, exhibits, answers to written interrogatories, and affidavits.345
Upon review of the state court proceedings and the evidence presented, the judge must
determine whether an evidentiary hearing is required.346 The judge may not hold an
evidentiary hearing on a claim on which a petitioner failed to develop the underlying
facts in the state court proceedings unless: (1) the facts support a newly recognized
constitutional rule, made retroactive by the United States Supreme Court, that was
previously unavailable, or the facts could not have been previously discovered through
the exercise of due diligence, and (2) the facts underlying the claim would be sufficient to
establish that but for the constitutional error no reasonable fact finder would have found
the applicant guilty of the underlying offense.347 If the judge decides that an evidentiary
hearing is unnecessary, the judge will make a decision on the petition without additional
335
336
337
338
339
340
341
342
343
344
345
346
347

28 U.S.C. § 2244(d)(1) (2004).
28 U.S.C. § 2244(d)(2) (2004).
RULE 4 OF THE R ULES GOVERNING § 2254 C ASES IN THE U.S. D IST. C T.
Id.
RULES 4 & 5 OF THE RULES G OVERNING § 2254 C ASES IN THE U.S. DIST. C T.
RULE 5 OF THE R ULES GOVERNING § 2254 C ASES IN THE U.S. D IST. C T.
Id.
RULE 6(a) OF THE RULES GOVERNING § 2254 C ASES IN THE U.S. D IST. C T.
Id.
RULE 7(a) OF THE RULES GOVERNING § 2254 C ASES IN THE U.S. D IST. C T.
RULE 7(b) OF THE R ULES GOVERNING § 2254 C ASES IN THE U.S. DIST. CT.
RULE 8(a) OF THE RULES GOVERNING § 2254 C ASES IN THE U.S. D IST. C T.
28 U.S.C. § 2254(e)(2) (2004); Williams v. Taylor, 529 U.S. 420 (2000).

44

evidence.348 If an evidentiary hearing is required, the judge should conduct the hearing as
promptly as possible.349
During the evidentiary hearing, the judge will resolve any factual discrepancies that are
material to the petitioner’s claims. Based on the evidence presented, the judge may grant
the petitioner a new guilt/innocence or sentencing phase or a new appeal, or leave the
conviction and sentence intact.
In order to appeal the district court judge’s decision, the applicant for the appeal must file
a notice of appeal with the district court within thirty days after the judgment.350 If the
petitioner seeks to appeal, s/he must also request a “certificate of appealability” from
either a district or circuit court judge.351 A judge may issue a “certificate of
appealability” only as to those claims on which the petitioner makes in the request for the
certificate a substantial showing of the denial of a constitutional right. 352 If the
“certificate of appealability” is granted, the appeal will proceed to the Eleventh Circuit
Court of Appeals.
In rendering its decision, the Eleventh Circuit may consider the record from the federal
district court, the briefs submitted by the parties, and the oral arguments. Based on the
evidence, the Eleventh Circuit may order a new appeal, an evidentiary hearing by the
federal district court, or a new guilt/innocence or sentencing phase in the superior court.
Both parties may then seek review of the Eleventh Circuit Court’s decision by filing a
petition for a writ of certiorari in the United States Supreme Court.353 The United States
Supreme Court may either grant or deny review of the petition. If the Court grants
review of the petition it may deny the petitioner relief or order a new guilt/innocence
phase, a new sentencing phase, or other procedures in the lower federal courts or the state
court.
If the petitioner wishes to file a second or successive habeas corpus petition with the
district court, s/he must submit a motion to the Eleventh Circuit Court of Appeals
requesting an order authorizing the petitioner to file and the district court to consider the
petition.354 A three-judge panel of the Eleventh Circuit must consider the motion. 355 The
panel must specifically assess whether the petition makes a prima facie showing that the
claim presented in the second or successive petition was not previously raised and that
the new claim (1) relies on a new, previously unavailable constitutional rule, or (2) relies
on newly discovered, previously unascertainable facts that, if proven, would be sufficient

348
349
350
351
352
353
354
355

RULE 8(b) OF THE R ULES GOVERNING § 2254 C ASES IN THE U.S. DIST. CT.
RULE 8(c) OF THE RULES GOVERNING § 2254 C ASES IN THE U.S. D IST. C T.
FED. R. A PP. P. 4(a)(1)(A) (2004).
28 U.S.C. § 2253(c)(1) (2004); F ED. R. APP. P. 22(b)(3) (2004).
28 U.S.C. § 2253(c)(2) (2004).
28 U.S.C. § 1254(1) (2004).
28 U.S.C. § 2244(a)(3)(A) (2004).
28 U.S.C. § 2244(b)(3)(B) (2004).

45

to establish by clear and convincing evidence that, but for constitutional error, no
reasonable fact finder would have found the applicant guilty of the underlying offense.356
Claims of factual innocence (“actual innocence”) must meet the requirements of the latter
provision.357 Any second or successive petition that presents a claim raised in a prior
petition will be dismissed.358
If the Eleventh Circuit denies the motion for authorization, the petitioner may not seek
appellate review of the decision.359 If the Eleventh Circuit grants the motion, then the
second or successive motion will proceed through the same process that the initial
petition went through.
The petitioner may seek final review of his/her conviction and sentence by filing a
petition for clemency.360
G. Clemency
The State Board of Pardons and Paroles (Board), created in 1943, possesses the authority
to grant executive clemency, including reprieves, pardons,361 and commutations of
sentences.362 The Board is composed of five members;363 each is appointed by the
Governor for a renewable seven-year full-time term that is subject to Senate
confirmation.364 The Georgia Attorney General, also appointed by the Governor, serves
as a legal advisor to the Board.365 Although the Governor controls the composition of the

356

28 U.S.C. § 2244(b)(2) (2004).
28 U.S.C. § 2244(b)(2)(B) (2004); In re Medina, 109 F.3d 1556, 1565-66 (11th Cir. 1997) (noting that
the Ҥ 2244(b)(2)(B) exception to the bar against second habeas applications has no application to claims
that relate only to the sentence”); see also Habeas Relief for State Prisoners, 91 G EO. L.J. 817, 843-85
n.2617 (2003).
358
28 U.S.C. § 2244(b)(1) (2004).
359
28 U.S.C. § 2244(b)(3)(E) (2004).
360
Board
of
Pardons
and
Paroles,
28
U.S.C.
§
2244,
at
http://www.pap.state.ga.us/other_forms_clemency.htm (last visited on Aug. 16, 2005).
361
Rule 475-3-10(3) of the Rules of the State Board of Pardons and Paroles defines “pardon” as “a
declaration that a person is relieved from the legal consequences of a particular conviction. It restores civil
and political rights and removes all legal disabilities resulting from the conviction.” See GA. COMP . R. &
REGS. 475-3-.10(3) (2004).
362
GA. C ONST. art. IV, § 2, para. 2(a).
363
O.C.G.A. § 42-9-2 (2004). Each year the Board must elect one of its members as Chairman of the
Board. See O.C.G.A. § 42-9-6(a) (2004).
364
O.C.G.A. §§ 42-9-2, -4 (2004); GA. C OMP . R. & R EGS. 475-1-.01 (2004); Board of Pardons and
Paroles, Frequently Asked Questions, at http://www.pap.state.ga.us/faq’s.htm (last visited on Aug. 16,
2005). The current Board consists of the following members: Board Chairman Milton E. Nix, Jr., former
Director of the Georgia Bureau of Investigation; Garfield Hammonds, former DEA Special Agent in charge
of Southeast Region; Garland R. Hunt, lawyer, consulting company owner, pastor and counselor; L. Gale
Buckner, former Executive Director of the Criminal Justice Coordinating Council in the Office of the
Governor; and Dr. Eugene Walker, former Commissioner of the Department of Juvenile Justice. See
Board
of
Pardons
and
Paroles,
Current
Georgia
Parole
Board
Members,
at
http://www.pap.state.ga.us/current_members.htm (last visited Aug. 16, 2005).
365
O.C.G.A. § 42-9-10 (2004).
357

46

Board, s/he has no direct authority to grant or deny pardons or to commute death
sentences.366 For a detailed discussion on this subject, see Chapter Nine - Clemency.
H. Execution
After the superior court judge imposes a death sentence, s/he must specify a seven-day
period of time within which the inmate’s execution should be carried out. 367 This time
period must begin within twenty to sixty days of the date of sentencing.368 The
Department of Corrections must then designate a place for the execution369 and the
specific day and time for the execution within the time period set by the judge. 370
At least two days but no more than twenty days before the scheduled execution, the
inmate must be transferred to the appropriate state correctional institution unless the
execution was postponed as a result of appellate review or stayed by the State Board of
Pardons and Paroles.371 If the execution had previously been postponed or stayed, a
superior court judge within the county in which the inmate was tried may schedule a new
period of time within which the execution should be carried out. 372
The inmate’s execution must be carried out by lethal injection.373 The superintendent of
the state correctional institution or a deputy superintendent, at least three executioners,
and two physicians must be present for the execution.374 Additionally, the commissioner
of corrections must determine whether to have other correctional officers, assistants,
technicians, and witnesses present for the execution.375 Similarly, at the request of the
defendant, the commissioner of corrections may authorize the presence of the inmate’s
counsel, a member of a clergy, and some of the inmate’s relatives and friends.376
Once the execution has been carried out, the executioner and the attending physicians
must certify the “fact of execution” to the clerk of the superior court of the county in
which the sentence was imposed.377

366

O.C.G.A. § 42-9-56 (2004).
O.C.G.A. §§ 17-10-33, -34 (2004).
368
O.C.G.A. §§ 17-10-33, -34 (2004).
369
O.C.G.A. § 17-10-44 (2004).
370
O.C.G.A. § 17-10-40(c) (2004).
371
O.C.G.A. § 17-10-33 (2004).
372
O.C.G.A. § 17-10-40(a) (2004); see also O.C.G.A. § 17-10-40(b) (2004) (stating “[t]he new period for
the execution shall be seven days in duration and shall commence at noon on a specified date and shall end
at noon on a specified date” ).
373
O.C.G.A. § 17-10-38(a) (2004) (defining “lethal injection” as “the continuous intravenous injection of
a substance or substances sufficient to cause death into the body of the person sentenced to death until such
person is dead”).
374
O.C.G.A. § 17-10-41 (2004).
375
Id.
376
Id.
377
O.C.G.A. § 17-10-42 (2004).
367

47

1. Mental Competency to be Executed
An inmate who is sentenced to death but found to be “mentally incompetent to be
executed” may not be executed.378 An inmate is mentally incompetent to be executed if
“because of a mental condition [s/he] is presently unable to know why [s/he] is being
punished and understand the nature of the punishment.”379 See the Mental Retardation
and Mental Disability Section for a more detailed discussion on this subject.

378
379

O.C.G.A. § 17-10-61 (2004).
O.C.G.A. § 17-10-60 (2004).

48

CHAPTER TWO
COLLECTION, PRESERVATION, AND TESTING OF DNA AND OTHER
TYPES OF EVIDENCE
INTRODUCTION TO THE ISSUE
DNA testing is a useful law enforcement tool that can help to establish guilt as well as
innocence. In 2000, the American Bar Association adopted a resolution urging federal,
state, local, and territorial jurisdictions to ensure that all biological evidence collected
during the investigation of a criminal case is preserved and made available to defendants
and convicted persons seeking to establish their innocence.1 Since then, over thirty-five
jurisdictions have adopted laws concerning post-conviction DNA testing.2 However, the
standards for preserving biological evidence and for seeking and obtaining postconviction DNA testing vary widely among the states.
Many who may have been wrongfully convicted cannot prove their innocence because
states often fail adequately to preserve material evidence. Written procedures for
collecting, preserving and safeguarding biological evidence should be established by
every law enforcement agency, made available to all personnel, and designed to ensure
compliance with the law.3 The procedures should be regularly updated as new or
improved techniques and methods are developed. The procedures should impose
professional standards on all state officials responsible for handling or testing biological
evidence, and the procedures should be enforceable through the agency disciplinary
process.4
Accuracy in criminal investigations should also be enhanced by utilizing the training
standards and disciplinary policies and practices of Peace Officer Standards and Training
Councils,5 and through the priorities and practices of other police oversight groups.6

1

See ABA Criminal Justice Section, Recommendation 115, 2000 Annual Meeting, available at
http://www.abanet.org/crimjust/policy/cjpol.html#am00115 (last visited on Dec. 12, 2005).
2
See
National
Conference
of
State
Legislatures,
DNA
&
Crime,
at
http://www.ncsl.org/programs/health/genetics/dna.htm (last visited on Dec. 12, 2005); see also Innocence
Project, Legislative Page, at http://www.innocenceproject.org/legislation/index.php (last visited on Dec. 12,
2005).
3
See 1 ABA Standards for Criminal Justice, Urban Police Function (2d ed. 1979) (Standard 1-4.3)
(“Police discretion can best be structured and controlled through the process of administrative rule making,
by police agencies.”); Id. (Standard 1-5.1) (police should be “made fully accountable” to their supervisors
and to the public for their actions).
4
See id. (Standard 1-5.3(a)) (identifying “[c]urrent methods of review and control of police activities”).
5
Peace Officer Standards and Training Councils are state agencies that set standards for law
enforcement training and certification and provide assistance to the law enforcement community.
6
Such organizations include the U.S. Department of Justice which is empowered to sue police agencies
under authority of the pattern and practice provisions of the 1994 Crime Law. 28 U.S.C. § 14141 (2005);
Debra Livingston, Police Reform and the Department of Justice: An Essay on Accountability, 2 BUFF .
CRIM. L. R EV. 814 (1999). In addition, the Commission on Accreditation for Law Enforcement Agencies,

49

Training should include information about the possibility that the loss or compromise of
evidence may lead to an inaccurate result. It also should acquaint law enforcement
officers with actual cases where illegal, unethical or unprofessional behavior led to the
arrest, prosecution or conviction of an innocent person.7
Initial training is likely to become dated rapidly, particularly due to advances in scientific
and technical knowledge about effective and accurate law enforcement techniques. It is
crucial, therefore, that officers receive ongoing, in-service training that includes review of
previous training and instruction in new procedures and methods.
Even the best training and the most careful and effective procedures will be useless if the
investigative methods reflected in the training or required by agency procedures or law
are unavailable.8 Appropriate equipment, expert advice, investigative time, and other
resources should be reasonably available to law enforcement personnel when law, policy
or sound professional practice call for them.9

Inc., (CALEA) is an independent peer group that has accredited law enforcement agencies in all 50 states.
Similar, state-based organizations exist in many places, as do government established independent
monitoring agencies. See CALEA Online, at http://www.calea.org/ (last visited on Jan. 6, 2006). Crime
laboratories may be accredited by the American Society of Crime Laboratory Directors–Laboratory
Accreditation Board (ASCLD-LAB) or the National Forensic Science Technology Center (NFSTC).
ASCLD-LAB, at http://www/ascld-lab.org (last visited on Jan. 6, 2006); NFSTC, at http://www.nfstc.org/
(last visited on Jan. 6, 2006).
7
Standard 1-7.3 provides:
(a) Training programs should be designed, both in their content and in their format, so that the
knowledge that is conveyed and the skills that are developed relate directly to the knowledge and
skills that are required of a police officer on the job.
(b) Educational programs that are developed primarily for police officers should be designed to
provide an officer with a broad knowledge of human behavior, social problems, and the
democratic process.
1 ABA Standards for Criminal Justice, Urban Police Function (2d ed. 1979) (Standard 1-7.3); see also id.
(Standard 1-5.2(a)) (noting value of “education and training oriented to the development of professional
pride in conforming to the requirements of law and maximizing the values of a democratic society”).
8
See generally 1 ABA Standards for Criminal Justice, Urban Police Function, Part VII (2d ed. 1979)
(“Adequate Police Resources”).
9
See, e.g., ABA House of Delegates, Report No. 8A, 2004 Midyear Meeting (requiring videotaping of
interrogations).

50

I. FACTUAL DISCUSSION
Since Georgia reinstated the death penalty in 1973, five Georgia death-row inmates have
been exonerated.10 As part of an effort to “ensure that innocent people are not kept in
prison for serious crimes they did not commit,” Senator David Adelman, in early 2003,
introduced Senate Bill (SB) 119 providing for the preservation of evidence and postconviction forensic deoxyribonucleic acid (DNA) testing in certain cases.11 SB 119
became effective upon the Governor’s signature on May 27, 2003.12
SB 119 amended the Official Code of Georgia Annotated (O.C.G.A.) by adding
procedures that (1) require the preservation of evidence in criminal cases; and (2) allow
inmates to request post-conviction DNA testing in certain instances.13 The majority of
these new procedures apply to all inmates, regardless of their conviction date.14
A. Preservation of DNA Evidence and Other Types of Evidence
As of May 27, 2003, all governmental entities in possession of any physical evidence
from a criminal case are required to “maintain any physical evidence collected at the time
of the crime that contains biological material, including, but not limited to, stains, fluids,
or hair samples that relate to the identity of the perpetrator of the crime.”15 In criminal
cases involving the prosecution of a “serious violent felony,”16 any physical evidence
containing biological material must be maintained for ten years after the judgment

10

See Death Penalty Information Center, Cases of Innocence 1973 - Present, available at
http://www.deathpenaltyinfo.org/article.php?scid=6&did=109 (last updated on Aug. 16, 2005). The names
of the five exonerated individuals are as follows: James Creamer (released in 1975), Earl Charles (released
in 1978), Jerry Banks (released in 1980), Robert Wallace (acquitted at retrial in 1987), and Gary Nelson
(released in 1991). The definition of innocence used by the Death Penalty Information Center (“DPIC”) in
placing defendants on the list of exonerated individuals is that “they had been convicted and sentenced to
death, and subsequently either a) their conviction was overturned and they were acquitted at a re-trial, or all
charges were dropped, or b) they were given an absolute pardon by the governor based on new evidence of
innocence.” Id. Henry Drake, who was convicted of murder and sentenced to death in Georgia in 1977, is
not on DPIC’s list. Although Drake received an absolute pardon based on actual innocence, he received his
absolute pardon after his death sentence had been vacated by the federal appeals court and he was resentenced to life in prison, meaning he received an absolute pardon from his life sentence, rather than death
row. See Drake v. Kemp, 762 F.2d 1449, 1461 (11th Cir. 1985); Gibson v. Turpin, 513 S.E.2d 186, 198
n.28 (Ga. 999); Forejustice, Wrongly Convicted Database Record: Henry Arthur Drake, at
http://forejustice.org/db/Drake__Henry_Arthur_.html (last visited on Sept. 20, 2005).
11
Melissa T. Rife, Searches and Seizures: Provide Extraordinary Appeals and Motions for New Trial
Based on Request for DNA Testing and Analysis; Establish Procedure for Preservation of Evidence, 20
GA. S T. U. L. R EV. 119, 120 (2003).
12
Id. at 121.
13
2003 Ga. Laws 37.
14
Id.
15
O.C.G.A. § 17-5-56(a) (2005); see also Phillips v. State, 604 S.E.2d 520, 529 n.6 (Ga. Ct. App. 2004)
(noting that “[w]e take this opportunity to remind trial courts, clerks of court, law enforcement agencies,
and other records’ custodians across the state of their important statutory duties regarding preservation of
evidence”).
16
O.C.G.A. § 17-10-6.1 (2005).

51

becomes final or ten years after May 27, 2003, whichever is later.17 When the death
penalty is imposed, however, this evidence must be “maintained until the sentence in the
case has been carried out.”18
1. Law Enforcement Procedures for the Pre-Trial Preservation of Evidence
All police departments, sheriff’s departments, state law enforcement agencies,
transportation police departments, and university police departments in Georgia certified
by the Commission on Accreditation for Law Enforcement Agencies (CALEA)19 and/or
the Georgia Law Enforcement Certification Program (GLECP)20 are required to adopt
written directives establishing procedures to be used in criminal investigations, including
procedures on the collection, preservation, and use of physical evidence.21 CALEA
further requires a written directive establishing guidelines and procedures for collecting,
processing, and preserving physical evidence in the field.22

17

O.C.G.A. § 17-5-56(b) (2005).
Id.
19
Forty-two police departments, sheriff’s departments, state law enforcement agencies, transportation
police departments, and university police departments in Georgia have been accredited or are in the process
of obtaining accreditation by the Commission on Accreditation for Law Enforcement Agencies (CALEA).
See CALEA Online, Agency Search, at http://www.calea.org/agcysearch/agencysearch.cfm (last visited on
Sept. 23, 2005) (use second search function, designating “U.S.” and “Georgia” as search criteria); see also
CALEA Online, About CALEA, at http://www.calea.org/newweb/AboutUs/Aboutus.htm (last visited on
Sept. 23, 2005) (noting that CALEA is an independent accrediting authority established by the four major
law enforcement membership associations in the United States: the International Association of Chiefs of
Police (IACP); National Organization of Black Law Enforcement Executives (NOBLE); National Sheriffs'
Association (NSA); and Police Executive Research Forum (PERF)). To obtain accreditation, a law
enforcement agency must complete a comprehensive process consisting of (1) purchasing an application;
(2) executing an Accreditation Agreement and submitting a completed application; (3) completing an
Agency Profile Questionnaire; (4) completing a thorough self-assessment to determine whether the law
enforcement agency complies with the accreditation standards and developing a plan to come into
compliance; and (5) participating in an on-site assessment by a team selected by the Commission to
determine compliance who will submit a compliance report to the Commission. See CALEA Online, The
Accreditation Process, at http://www.calea.org/newweb/accreditation%20Info/process1.htm (last visited on
Sept. 23, 2005). After completion of these steps, a hearing is held where a final decision on accreditation
is rendered. Id.
20
Ninety police, sheriff’s, state law enforcement, transportation police, and university police departments
have obtained certification under the GLECP. G EORGIA LAW E NFORCEMENT C ERTIFICATION P ROGRAM:
STANDARDS MANUAL, at intro. (3d ed. 2002) [hereinafter GLECP S TANDARDS] (noting that the Georgia
Law Enforcement Certification Program was established in 1997 as a stepping-stone to national
accreditation under CALEA’s Standards for Law Enforcement Agencies). Georgia Association of Chiefs
of
Police,
State
Certified
Agencies,
at
http://www.gachiefs.com/statecertification/StateCertifiedAgencies.html (last visited on Jan. 6, 2006).
21
COMMISSION ON ACCREDITATION OF L AW ENFORCEMENT AGENCIES , STANDARDS FOR LAW
ENFORCEMENT A GENCIES, T HE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY
ACCREDITATION PROGRAM 42-2 (4th ed. 2001) [hereinafter CALEA S TANDARDS] (Standard 42.2.1);
GLECP S TANDARDS, supra note 20, at 31 (Standard 5.23).
22
CALEA STANDARDS , supra note 21, at 83-1 (Standard 83.2.1).
18

52

The Georgia Department of Community Affairs also has developed a Model Law
Enforcement Operations Manual (MLEOM), which contains “professional standards and
requirements for law enforcement operations,”23 including standards on the proper
collection and preservation of evidence.24 The Georgia Department of Community
Affairs suggests that the MLEOM be used to assist law enforcement agencies in
developing or revising their own polices and procedures.25 The Georgia Association of
Chiefs of Police has adopted the MLEOM as its own “Sample Law Enforcement
Operations Manual” (SLEOM).26
In addition to the requirements for law enforcement agency certification and the model
procedures for law enforcement agencies, individual law enforcement officers (“peace
officers”27) are statutorily required to meet certain criteria28 and complete a basic course29
that consists of 404 hours of training, including eighteen hours of instruction in such
relevant areas as crime scene processing and death investigations.30 Specifically, the

23

GA. DEP ’T OF C MTY. A FFAIRS, MODEL LAW ENFORCEMENT OPERATIONS MANUAL, Acknowledgement,
at http://www.dca.state.ga.us/development/research/programs/downloads/law/ackn.html (last visited on
Oct. 4, 2005).
24
GA. D EP’T OF C MTY. AFFAIRS, MODEL LAW ENFORCEMENT OPERATIONS MANUAL 13-1, 17-1 (6th ed.
1996)
[hereinafter
MLEOM],
available
at
http://www.dca.state.ga.us/development/research/programs/downloads/law/Law.html (last visited on Oct.
4, 2005).
25
Id.
26
See GA. ASS’N OF C HIEFS OF P OLICE, S AMPLE LAW ENFORCEMENT OPERATIONS MANUAL [hereinafter
SLEOM], available at http://www.gachiefs.com/Sample%20LE%20Manual/SCHAPTER17.doc (last
visited on Oct. 4, 2005). Chapter 17 contains standards pertaining to the collection and preservation of
physical evidence, such as requiring evidence to be preserved for “forensic processing, fingerprints,
ballistics, etc.” and “packaged . . . to ensure constant protection.” Id.
27
A “peace officer” is defined, for the purposes of this Section, as “an agent, operative, or officer of this
state, a subdivision or municipality thereof, . . . who, as an employee for hire or as a volunteer, is vested
either expressly by law or by virtue of public employment or service with authority to enforce the criminal
or traffic laws through the power of arrest and whose duties include the preservation of public order, the
protection of life and property, and the prevention, detection, or investigation of crime.” See O.C.G.A. §
35-8-2(8)(A) (2005).
28
O.C.G.A. § 35-8-8(a) (2005). One must (1) be at least 18 years of age; (2) be a citizen of the United
States; (3) have obtained a high school diploma or the recognized equivalent; (4) not have been convicted
of any state or federal felonies or sufficient misdemeanors to establish a pattern of disregard for the law; (5)
be fingerprinted for a background check; (6) possess good moral character; (7) complete an oral interview;
(8) be found free from an adverse physical, emotional, or mental condition; and (9) successfully complete
the basic training course entrance examination. Id.; see also GA. PEACE OFFICER S TANDARDS & TRAINING
COUNCIL R. 464-3-.02(a) (2005), available at http://www.gapost.org/5Trng.htm (last visited on Oct. 4,
2005).
29
O.C.G.A. § 35-8-9(a) (2005); GA. PEACE OFFICER STANDARDS & TRAINING C OUNCIL R. 464-3 -.03(a)
(2005), available at http://www.gapost.org/5Trng.htm (last visited on Oct. 4, 2005). The basic course must
be completed at a Georgia Peace Officer Standards and Training Council (POST) certified academy. See
O.C.G.A. § 35-8-11 (2005).
30
GA. P EACE OFFICER STANDARDS & TRAINING C OUNCIL, 404 HOUR BASIC LAW ENFORCEMENT
TRAINING
COURSE
(11th
ed.
2003)
(table
of
contents),
available
at
http://www.gapost.org/pdf_file/bletc404.pdf (last visited on Oct. 4, 2005).

53

course provides training regarding (1) the searches of various crime scenes,31 and (2) the
proper methods for collecting, packaging, and identifying trace materials, fingernail
scrapings, hair, and other biological evidence, such as blood and bodily fluids, in order to
prevent contamination.32 Additionally, to assist these law enforcement officers and
Georgia law enforcement agencies, certified or otherwise, with the submission of
evidence to crime laboratories of the Georgia Bureau of Investigation’s Division of
Forensic Sciences (Division), the Division has established and posted on its website a
manual entitled “Laboratory Services and Requirements for Submitting Evidence.” 33
All Division laboratories that are accredited by the Crime Laboratory Accreditation
Program of the American Society of Crime Laboratory Directions/Laboratory
Accreditation Board (ASCLD/LAB) and/or possess ISO/IEC 17025 General
Requirements for the Competency of Testing and Calibration Laboratories (ISO/IEC
17025) accreditation through the Forensic Quality Services-International Division of the
National Forensic Science Technology Center (FQS-I) are required to adopt or abide by
certain procedures relating to the preservation of evidence. 34 For example, the
ASCLD/LAB specifically requires the laboratory to have a written or secure electronic
chain of custody record with all necessary data, which provides for the complete tracking
of all evidence, and to have a secure area for overnight and/or long-term storage of
evidence.35 All evidence must also be marked for identification, stored under proper seal,
meaning that the contents cannot readily escape, and protected from loss, cross transfer,
contamination and/or deleterious change.36 Similarly, ISO/IEC 17025 requires the
laboratory to have “procedures for the transportation, receipt, handling, protection,
storage, retention and/or disposal of test and/or calibration items.” 37

31

GA. P EACE OFFICER STANDARDS & TRAINING C OUNCIL, 404 HOUR BASIC LAW ENFORCEMENT
TRAINING C OURSE 5.2-10 to -14 (11th ed. 2003) [hereinafter POST COUNCIL B ASIC T RAINING C OURSE].
32
Id. at 5.2-26 to -29, -33 to -37, -42, -44 to -46.
33
See Georgia Bureau of Investigation, Division of Forensic Services, Laboratory Services and
Requirements for Submitting Evidence, at http://www.ganet.org/gbi/labmanual.html (last visited on Sept.
28, 2005).
34
Seven of the eight Division laboratories are currently accredited through the ASCLD/LAB program,
including (1) Headquarters Crime Laboratory, (2) Central Regional Crime Laboratory, (3) Coastal Regional
Crime Laboratory, (4) Eastern Regional Crime Laboratory, (5) Northwestern Regional Crime Laboratory,
(6) Southwestern Regional Crime Laboratory, and (7) Western Regional Crime Laboratory. See American
Society of Crime Laboratory Directors, Laboratories Accredited by ASCLS/LAB, at http://www.ascldlab.org/legacy/aslablegacylaboratories.html#GA (last visited on Sept. 16, 2005). Similarly, seven
laboratories possess ISO-IEC 17025 accreditation, including (1) Headquarters Laboratory, (2) Eastern
Regional Crime Laboratory, (3) Western Regional Crime Laboratory, (4) Central Regional Crime
Laboratory, (5) Southwestern Regional Crime Laboratory, (6) Coastal Regional Laboratory, and (7)
Northwestern Regional Crime Laboratory. See National Forensic Science Technology Center, Forensic
Quality
Services-International
Division,
ISO/IEC
Accredited
Laboratories,
at
http://www.forquality.org/accreditation.htm#atlanta (last visited Sept. 20, 2005).
35
AM. S OC’Y OF C RIME LAB. D IRS., LAB. A CCREDITATION BD., 2003 MANUAL 20-23 [hereinafter
ASCLD/LAB 2003 MANUAL] (on file with author).
36
Id.
37
NATIONAL F ORENSIC S CIENCE TECHNOLOGY CENTER, FORENSIC QUALITY SERVICES -INTERNATIONAL
DIVISION, GENERAL REQUIREMENTS FOR ACCREDITATION 37 [hereinafter FQS-I, ISO/IEC 17025

54

2. Court Procedures for Preservation of Evidence during and After Trial
In all criminal cases, the judge must designate the court clerk, the court reporter, or any
other officer of the court “to be the custodian of any property that is introduced into
evidence” during the trial.38 The custodian of the property must “inventory the evidence
and create an evidence log within [thirty] days of the entry of the judgment.”39 The
evidence log must include the following information: (1) case number, (2) style of the
case, (3) description of the item, (4) exhibit number, (5) the name of the person creating
the evidence log, and (6) the location where the physical evidence is stored.40 Once the
log is completed, the judge must order the court clerk, “the prosecuting attorney, or the
law enforcement agency involved in prosecuting the case to obtain and store the
evidence.”41 This transfer of evidence and any other transfers of evidence must be noted
in the evidence log.42
B. Post-Conviction DNA Testing
Pursuant to section 5-5-41(c)(1) of the O.C.G.A., inmates convicted of a “serious violent
felony”43 may apply for post-conviction DNA testing by requesting the testing as part of
a motion for a new trial and/or as part of an extraordinary motion for a new trial.44
Additionally, based on the Georgia Court of Appeal’s decision in Clark v. State,45 it
appears that inmates convicted of a serious violent felony may also apply for postconviction DNA testing by filing a motion for DNA testing separate and apart from a
motion for a new trial or an extraordinary motion for a new trial,46 but the filing
procedures and limitations for this motion are unclear.
An inmate who requests post-conviction DNA testing as part of a motion for a new trial
must file his/her motion within thirty days of the entry of judgment.47 If the inmate filed
a motion for a new trial within the thirty day period and the motion was overruled or s/he
failed to file the motion within the thirty day period, s/he may file an extraordinary

ACCREDITATION
S TANDARDS]
(Standard
5.8.1),
at
http://www.forquality.org/FQSI%20Acc%20Docs/GRA-FQS-I-05-04.pdf (last visited Sept. 20, 2005).
38
O.C.G.A. § 17-5-55(a) (2005).
39
Id.
40
Id.
41
Id.
42
Id.
43
See O.C.G.A. § 17-10-6.1(a) (2005) (defining a “serious violent felony” to include: (1) murder or
felony murder, as defined in O.C.G.A. § 16-5-1; (2) armed robbery, as defined in O.C.G.A. § 16-8-41; (3)
kidnapping, as defined in O.C.G.A. § 16-5-40; (4) rape, as defined in O.C.G.A. § 16-6-1; (5) aggravated
child molestation, as defined in O.C.G.A. § 16-6-4; (6) aggravated sodomy, as defined in O.C.G.A. § 16-62; or (7) aggravated sexual battery, as defined in O.C.G.A. § 16-6-22.2).
44
O.C.G.A. § 5-5-41(c)(1) (2005); 2003 Ga. Laws 37, § 1.
45
See State v. Clark, 615 S.E.2d 143 (Ga. Ct. App. 2005).
46
Id. at 146.
47
O.C.G.A. § 5-5-41(a) (2005).

55

motion for a new trial at any time, but the inmate must show “some good reason” for the
delay.48 Each inmate may file only one extraordinary motion. 49 However, an inmate
convicted of a “serious violent felony” before May 27, 2003, who prior to that time filed
an extraordinary motion for a new trial, may file a second extraordinary motion if “the
issue of DNA was not raised or denied in” the prior motion.50
All motions requesting post-conviction DNA testing, regardless of whether the request is
made as part of a motion for a new trial or as part of an extraordinary motion for a new
trial, or separate and apart from any other motion, must “state”51 and “show 52 or provide”
certain information. The inmate must “state” as follows: (1) that the motion for postconviction DNA testing is not filed for the purpose of delay; and (2) that the request for
DNA testing is being made for the first time or, if it is not being made for the first time,
the requested DNA testing was never ordered in any prior court proceeding.53
In addition, the inmate must “show or provide” the following:
1.
2.

3.
4.

5.
6.
7.

Evidence that potentially contains [ ] DNA was obtained in relation to the
crime and subsequent indictment, which resulted in his/her conviction;
The evidence was not subjected to the requested DNA testing because the
existence of the evidence was unknown to the [inmate] or to the [inmate’s]
trial attorney prior to trial or because the technology for the testing was
not available at the time of trial;
The identity of the perpetrator was, or should have been, a significant
issue in the case;
The requested DNA testing would raise a reasonable probability that the
[inmate] would have been acquitted if the results of DNA testing had been
available at the time of conviction, in light of all the evidence in the case;
A description of the evidence to be tested and, if known, its present
location, its origin and the date, time, and means of its original collection;
The results of any DNA or other biological evidence testing that was
conducted previously by either the prosecution or the defense, if known;
If known, the names, addresses, and telephone numbers of all persons or
entities who are known or believed to have possession of any evidence
described [by the aforementioned numbers (1) through (6)], and any

48

O.C.G.A. § 5-5-41(a), (b) (2005).
O.C.G.A. § 5-5-41(b) (2005).
50
2003 Ga. Laws 37, § 5.
51
“State” is not equivalent to “show.” See Crawford v. State, 597 S.E.2d 403, 404 (Ga. 2004).
52
“Show” is not tantamount to “prove.” See id.
53
O.C.G.A. § 5-5-41(c)(4) (2005); see also 2003 Ga. Laws 37, § 5 (stating that “[n]otwithstanding the
provisions of subparagraph (c)(4)(B) of Code Section 5-5-41, any person convicted of a serious violent
felony…which conviction was imposed prior to the effective date of this Act, who has, prior to the
effective date of this Act, previously litigated in a court of this state or the United States the issue of postconviction DNA testing and who was denied DNA testing may file an extraordinary motion for new trial”).
49

56

8.

persons or entities who have provided any of the information contained in
petitioner's motion, indicating which person or entity has which
items of evidence or information; and
The names, addresses, and telephone numbers of all persons or entities
who may testify for the [inmate] and a description of the subject matter
and summary of the facts to which each person or entity may testify.54

The motion must be filed with the trial court that entered the judgment of conviction in
the inmate’s case.55 The filing of the motion does not automatically stay the inmate’s
execution.56 Once the motion has been filed, the court must order the state to preserve,
during the pendency of the proceeding, all evidence containing biological materials.57
The inmate may also apply for an order directing that the evidence be preserved beyond
the time period allotted and until the judgment in the action becomes final.58 The
application for the order must be filed “prior to the expiration of time prescribed for the
preservation of evidence” and with the court in which the inmate was convicted.59
The inmate’s motion must be served on the District Attorney and the Attorney General.60
Upon being served, the state will have sixty days to file a response to the inmate’s
motion, if it so desires.61
If, and only if, the inmate’s motion contains all of the necessary information is the court
required to order a hearing on the motion.62 For example, an inmate’s motion may be
denied without a hearing if s/he failed to show that the results of the requested DNA
testing would “in reasonable probability” have led to his/her acquittal if the results had
been available at the initial trial.63 If a hearing is ordered, it must be scheduled for a date
after the state has filed its response, but no later than ninety days from the date the inmate
filed his/her motion.64 The inmate’s motion will be heard by the judge who conducted
the trial resulting in the inmate’s conviction, unless such judge is otherwise unavailable.65
Upon the request of either party, the judge may order that the inmate be present for the
hearing.66

54
55
56
57
58
59
60
61
62
63
64
65
66

O.C.G.A. § 5-5-41(c)(3) (2005).
O.C.G.A. § 5-5-41(c)(1) (2005).
O.C.G.A. § 5-5-41(c)(2) (2005).
O.C.G.A. § 5-5-41(c)(10) (2005).
O.C.G.A. § 17-5-55(c) (2005).
Id.
O.C.G.A. § 5-5-41(c)(5) (2005).
Id.
O.C.G.A. § 5-5-41(c)(6)(A) (2005); Johnson v. State, 612 S.E.2d 29, 31 (Ga. Ct. App. 2005).
Crawford v. State, 597 S.E.2d 403, 404 (Ga. 2004).
O.C.G.A. § 5-5-41(c)(6)(A) (2005).
O.C.G.A. § 5-5-41(c)(6)(B) (2005).
O.C.G.A. § 5-5-41(c)(6)(C) (2005).

57

During the hearing, both the state and the inmate may present evidence as to the merits of
the inmate’s motion.67 This evidence may be presented by either testimony or sworn and
notarized affidavits.68 All affidavits, however, must be served on the opposing party
fifteen days before the hearing.69
The judge’s decision on the motion must be set forth in writing and include the rationale
for granting or denying the inmate’s motion. 70 The judge must grant the inmate’s motion
if s/he finds that the inmate “stated” and “showed or provided” all of the necessary
information and established the following:
1.
2.

3.

4.
5.
6.

7.

The evidence to be tested is available and in a condition that would permit
the DNA testing requested in the motion;
The evidence to be tested has been subject to a chain of custody sufficient
to establish that it has not been substituted, tampered with, replaced, or
altered in any material respect;
The evidence was not tested previously or, if tested previously, the
requested DNA test would provide results that are reasonably more
discriminating or probative of the identity of the perpetrator than prior test
results;
The motion is not made for the purpose of delay;
The identity of the perpetrator of the crime was a significant issue in the
case;
The testing requested employs a scientific method that has reached a
scientific state of verifiable certainty such that the procedure rests upon
the laws of nature; and
The petitioner has made a prima facie showing that the evidence sought to
be tested is material to the issue of the [inmate’s] identity as the
perpetrator of, or accomplice to, the crime, aggravating circumstance, or
similar transaction that resulted in the conviction.71

By filing an application for a discretionary appeal, either the state or the inmate may
appeal the judge’s decision regarding the DNA testing which was requested as part of an
extraordinary motion for a new trial.72 The state, however, may directly appeal a judge’s

67

O.C.G.A. § 5-5-41(c)(6)(E) (2005).
O.C.G.A. § 5-5-41(c)(6)(D) (2005).
69
Id.
70
O.C.G.A. § 5-5-41(c)(12) (2005); Johnson v. State, 612 S.E.2d 29, 31 (Ga. Ct. App. 2005) (noting that
the lower court did not set forth by written order its rationale for denying the motion and remanding the
case to the lower court “for a determination of whether Johnson is entitled to a hearing on his motion, and
for the entry of a written order setting forth the basis for either the grant or the denial of the motion”).
71
O.C.G.A. § 5-5-41(c)(7) (2005) (italics added).
72
O.C.G.A. § 5-5-41(c)(13) (2005); Crawford v. State, 597 S.E.2d 403, 404 (Ga. 2004) (finding that an
inmate is not entitled to a direct appeal of the judge’s denial of his/her request for DNA testing made as
part of an extraordinary motion for a new trial).
68

58

decision granting a motion for DNA testing where the motion was not filed as part of an
extraordinary motion for a new trial.73
C. Method of and Funding for Post-Conviction DNA Testing
In cases in which the judge orders post-conviction DNA testing, the judge must
determine the method of testing and the party responsible for the costs of the tests.74 The
judge may require the inmate to absorb the costs of the tests.75 However, if the inmate is
indigent, the court will pay for the tests from the state fine and forfeiture fund.76
D. Location of Post-Conviction DNA Testing
If the judge orders post-conviction DNA testing, the tests must be performed by a
Division laboratory or by a laboratory that meets the standards of the Federal Bureau of
Investigation’s DNA advisory board.77 Tests performed by the Division will be
completed either at the Headquarters Laboratory in Decatur, Georgia or at one of the
seven regional crime laboratories located throughout the state in the following locations:
1.
2.
3.
4.
5.
6.
7.

Augusta (“Eastern Regional Crime Laboratory”);
Cleveland (“Northeast Regional Crime Laboratory”);
Midland (Columbus) (“Western Regional Crime Laboratory”);
Dry Branch (Macon) (“Central Regional Crime Laboratory”);
Moultrie (“Southwestern Regional Crime Laboratory”);
Savannah (“Coastal Regional Crime Laboratory”); and
Trion (Summerville) (“Northwestern Regional Crime Laboratory”).78

The judge must also order that a sample of the inmate’s DNA be submitted to the
Division and that the DNA analysis be “stored and maintained” by the Georgia Bureau of

73

See State v. Clark, 615 S.E.2d 143, 144 (Ga. Ct. App. 2005) (noting that the state’s right to appeal is
“based on the facts and circumstances of this particular case”).
74
O.C.G.A. § 5-5-41(c)(8) (2005).
75
Id.
76
Id.
77
O.C.G.A. § 5-5-41(c)(9) (2005); 42 U.S.C. § 14131(a)(1) (2005). The 1994 DNA Identification Act
(codified, in part, at 42 U.S.C. § 14131(a)(1)) authorized the Federal Bureau of Investigation to establish
and appoint individuals to a DNA advisory board, charged with creating standards of quality assurance for
DNA testing. The “Quality Assurance Standards for Forensic DNA Testing Laboratories” became
effective on October 1, 1998. See DNA Advisory Board, Quality Assurance Standards for Forensic DNA
Testing
Laboratories,
2
F ORENSICS
SCI.
C OMM.
3
(July
2000),
available
at
http://www.fbi.gov/hq/lab/fsc/backissu/july2000/codis2a.htm (last visited on Sept. 28, 2005); see also
Clark, 615 S.E.2d at 146-47 (finding that “the trial court erred when it ordered the state to provide the
evidence to the uncertified laboratory for testing”).
78
See Georgia Bureau of Investigation, Division of Forensic Services, at www.ganet.org/gbi/fordiv.html
(last visited on Sept. 28, 2005); Georgia Bureau of Investigation, Division of Forensic Services, Laboratory
Services and Requirements for Submitting Evidence, at http://www.ganet.org/gbi/labmanual.html (last
visited on Sept. 28, 2005).

59

Investigation in the DNA data bank.79 For a detailed discussion of the Division’s crime
laboratories and the ASCLD/LAB and ISO/IEC 17025 accreditation programs, see the
Crime Laboratory and Medical Examiner Section.

79

O.C.G.A. § 5-5-41(c)(9) (2005); see also Clark, 615 S.E.2d at 148 (noting that the “trial court has a
statutory duty to order that a sample be provided to the GBI for inclusion in the DNA data bank”).

60

II. ANALYSIS
A. Recommendation #1
Preserve all biological evidence80 for as long as the defendant remains incarcerated.

The State of Georgia requires all government entities in possession of any physical
evidence from a criminal case to “maintain any physical evidence collected at the time of
the crime that contains biological material, including, but not limited to, stains, fluids, or
hair samples that relate to the identity of the perpetrator of the crime.”81 In cases in
which the defendant was sentenced to death, the respective government entity must
preserve all biological material until the “sentence in the case has been carried out,” 82
which, as interpreted by the Georgia Supreme Court, is at the time the defendant is
executed.83 The State of Georgia, therefore, is in compliance with Recommendation #1.
It should be noted, however, that the State of Georgia did not require the preservation of
biological materials until May 27, 2003,84 and prior to that time, “the state could destroy
evidence after appeals were exhausted.”85
B. Recommendation #2
All biological evidence should be made available to defendants and convicted
persons upon request and, in regard to such evidence, such defendants and
convicted persons may seek appropriate relief notwithstanding any other provision
of the law.

The State of Georgia provides an avenue for defendants to obtain physical evidence for
DNA testing during discovery and for inmates to seek post-conviction DNA testing.

80

“Biological evidence” includes: (1) the contents of a sexual assault examination kit; and/or (2) any
item that contains blood, semen, hair, saliva, skin tissue, or other identifiable biological material, whether
that material is catalogued separately or is present on other evidence. See INNOCENCE P ROJECT, MODEL
STATUTE
FOR
OBTAINING
POST-CONVICTION
DNA
T ESTING,
available
at
http://www.innocenceproject.org/docs/Model_Statute_Postconviction_DNA.pdf (last visited on Jan. 6,
2006).
81
O.C.G.A. § 17-5-56(a) (2005).
82
O.C.G.A. § 17-5-56(b) (2005). In cases in which the defendant is convicted of a “serious violent
felony” but not sentenced to death, the state is required to preserve the biological evidence for ten years
after the judgment becomes final or ten years after May 27, 2003, whichever date is later. Id.
83
See, e.g., Dawson v. State, 554 S.E.2d 137, 139 (Ga. 2001) (stating “any future executions of death
sentences in Georgia be carried out by lethal injection”) (emphasis added); Rhode v. State, 552 S.E.2d 855,
860 (Ga. 2001) (stating that “jurors in Georgia death penalty trials play no role in determining the method
by which a death sentence is carried out”) (emphasis added); Colwell v. State, 544 S.E.2d 120, 128 (Ga.
2001) (stating that “Colwell should be permitted to elect lethal injection instead of electrocution as the
method by which his sentence is carried out”) (emphasis added).
84
O.C.G.A. § 17-5-56(a) (2005).
85
Rife, supra note 11, at 123.

61

Georgia law provides that prior to a trial in which the defendant has elected to participate
in “reciprocal discovery,” the prosecuting attorney must allow the defendant, no later
than ten days prior to trial, to “inspect and copy or photograph books, papers, . . . tangible
objects . . . , which are within the possession, custody or control of the state or
prosecution and are intended for use by the prosecuting attorney as evidence . . . or were
obtained from or belong to the defendant. Evidence that is within the possession, custody
or control of the Forensic Science Division of the Georgia Bureau of Investigation [“the
Division”] or other laboratory . . . may be examined, tested, and analyzed at the facility
where the evidence is being stored.” 86 Based on this law, it appears that a defendant who
elects to participate in reciprocal discovery has the right to examine, test, and analyze all
evidence that is in the possession of the Division, including biological evidence.
Additionally, pursuant to section 5-5-41(c)(1) of the O.C.G.A., Georgia authorizes certain
inmates to apply for and/or obtain post-conviction DNA testing. Section 5-5-41(c)(1) of
the O.C.G.A., however, limits the pool of eligible applicants to inmates convicted of a
“serious violent felony.” This includes inmates convicted of one of the following
offenses: murder or felony murder,87 armed robbery, 88 kidnapping,89 rape, 90 aggravated
child molestation,91 aggravated sodomy,92 or aggravated sexual battery, 93 which does not
include all offenses, but does include all capital offenses except aircraft hijacking94 and
treason.95
Section 5-5-41(c) also requires these eligible applicants to comply with a number of
procedural requirements in order to request a hearing, obtain a hearing, and an order for
DNA testing. In light of section 5-5-41(c) and Clark v. State,96 it appears that these
eligible applicants may apply for post-conviction DNA testing by requesting the testing
as part of a motion for a new trial filed within thirty days of the judgment of conviction,
as part of an extraordinary motion for a new trial filed any time thereafter, and/or by
filing a motion requesting DNA testing separate and apart from any other motion.97
Regardless of whether the applicant files an extraordinary motion for a new trial after
obtaining DNA test results or files an extraordinary motion for a new trial to request
DNA testing, all applicants are limited to one extraordinary motion for a new trial.98 The
only exception to the limit on the number of extraordinary motions is for inmates who
were convicted of a “serious violent felony” before May 27, 2003, and who prior to that
86
87
88
89
90
91
92
93
94
95
96
97
98

O.C.G.A. § 17-16-4 (2005).
See O.C.G.A. § 16-5-1 (2005).
See O.C.G.A. § 16-8-41 (2005).
See O.C.G.A. § 16-5-40 (2005).
See O.C.G.A. § 16-6-1 (2005).
See O.C.G.A. § 16-6-4 (2005).
See O.C.G.A. § 16-6-2 (2005).
See O.C.G.A. § 16-6-22.2 (2005).
O.C.G.A. § 16-5-44 (2004).
O.C.G.A. § 16-11-1 (2004).
See supra note 45 and accompanying text.
See supra notes 44-46 and accompanying text.
See supra note 49 and accompanying text.

62

date filed an extraordinary motion for a new trial within which “the issue of DNA was
not raised or denied.”99 Therefore, the ability to file a motion requesting DNA testing
separate and apart from any other motion allows inmates to reserve the use of their one
and only extraordinary motion for a new trial until they have obtained DNA test results.
But the limitations on motions requesting DNA testing filed separate and apart from any
other motion (i.e., filing deadlines and the number of allowable motions) are unclear.
In addition to the limitations on extraordinary motions for a new trial, judges are not
required to hold hearings on inmates’ motions requesting post-conviction DNA testing.
Rather, judges may grant a hearing on the motion if, and only if, the motion “states” and
“shows or provides” all of the requisite information.100 This requirement is extremely
restrictive given that inmates are not provided with counsel to assist with or to draft the
motion. Furthermore, it allows judges to deny motions for post-conviction DNA testing
without holding a hearing to fully develop the inmate’s claims. For example, in cases in
which the inmate filed his/her request for DNA testing as part of an extraordinary motion
for a new trial and failed to “state” and “show or provide” all of the requisite information
in his/her motion, the inmate would never receive a hearing on his/her motion, as s/he
would be barred from filing a second extraordinary motion for a new trial. Pursuant to
Clark, this inmate would be able to file a motion for DNA testing separate and apart from
any other motion and could potentially receive a hearing on and an order granting DNA
testing, but s/he would still be barred from filing a second extraordinary motion for a new
trial based on the test results.
Based on this information, the State of Georgia is only in partial compliance with
Recommendation #2.
C. Recommendation #3
Every law enforcement agency should establish and enforce written procedures and
policies governing the preservation of biological evidence.

Georgia law requires the Division to establish standards for the “identification, collection,
transportation, and analysis of forensic evidence,” but this requirement does not explicitly
include standards on the preservation of evidence.101 It is impossible to state whether the
Division’s standards on the identification, collection, transportation, and analysis of
forensic evidence address the issue of preservation of evidence, as all of the Division’s
standards relating to the identification, collection, transportation, and analysis of forensic
evidence do not have to be “published or made available for public inspection” in order
to become effective.102 It appears, however, that certain law enforcement agencies and
Division laboratories may have established or adopted procedures pertaining to the

99
100
101
102

2003 Ga. Laws 37, § 5.
See supra note 62 and accompanying text.
O.C.G.A. § 35-3-151(3) (2004).
O.C.G.A. § 35-3-155 (2004).

63

preservation of biological evidence in order to obtain accreditation and/or comply with
model operating procedures.
Both CALEA and GLECP require certified law enforcement agencies to adopt a written
directive establishing procedures to be used in criminal investigations, including
procedures on the collection, preservation, and use of physical evidence.103 Similarly, all
of the Division’s crime laboratories accredited by the ASCLD/LAB and/or the ISO/IEC
17025 are required to adopt specific procedures relating to the preservation of
evidence.104 The MLEOM and SLEOM also provide model standards on the collection
and preservation of evidence, but the extent to which Georgia law enforcement agencies
have adopted either MLEOM or SLEOM is unknown.
Although it appears that certified police departments, sheriff’s departments, state law
enforcement agencies, transportation police departments, and university police
departments and crime laboratories in Georgia may have adopted procedures on the
preservation of evidence, we were unable to confirm the existence of these procedures or
obtain information to assess whether the procedures adopted by these agencies and crime
laboratories and all other Georgia law enforcement agencies comply with
Recommendation #3.
D. Recommendation #4
Every law enforcement agency should provide training programs and disciplinary
procedures to ensure that investigative personnel are prepared and accountable for
their performance.

Georgia statutory law mandates that every law enforcement officer complete a basic
training course offered at a POST Council-certified academy,105 which includes
instruction on the proper methods for collecting, packaging, and identifying trace
materials, fingernail scrapings, hair, and other biological evidence, such as blood and
bodily fluids, in order to prevent contamination.106
Additionally, police departments, sheriff’s departments, state law enforcement agencies,
transportation police departments, and university police departments in Georgia certified
under CALEA and/or GLECP are required to establish written directives requiring a
training program107 and an annual, documented performance evaluation of each

103

CALEA Online, The Standards, at http://www.calea.org/newweb/accreditation%20Info/standards.htm
(last visited on Sept. 23, 2005).
104
ASCLD/LAB 2003 Manual, supra note 35, at 20-23; FQS-I, ISO/IEC 17025 ACCREDITATION
STANDARDS , supra note 37, at 37 (Standard 5.8.1).
105
O.C.G.A. §§ 35-8-9(a), -11 (2005).
106
POST C OUNCIL B ASIC TRAINING COURSE , supra note 31, at 5.2-26 to -29, -33 to -37, -42, -44 to -46.
107
CALEA STANDARDS , supra note 21, at 33-3 to 33-4 (Standards 33.4.1, 33.4.2); GLECP STANDARDS ,
supra note 20, at 4 (Standard 1.11).

64

employee.108 Similarly, the MLEOM and SLEOM contain procedures on the
establishment of training programs109 and guidelines on disciplinary procedures,110 but
the extent to which Georgia law enforcement agencies have adopted MLEOM or SLEOM
is unknown.
Similarly, all of the Division crime laboratories that are accredited by ASCLD/LAB
and/or possess ISO/IEC 17025 accreditation are required to create training programs
relevant to the tasks required of the laboratory personnel.111 A review of the Division’s
annual reports indicates that the Division provides training programs for new examiners
to ensure that they possess the necessary knowledge and skills to perform the required
tasks.112
Based on this information, it appears that law enforcement investigative personnel do
receive mandatory basic training on proper techniques for the collection, packaging, and
identification of different types of evidence. Furthermore, certified law enforcement
agencies and crime laboratories and agencies that have adopted MLEOM or SLEOM may
have training programs and/or disciplinary procedures. However, the extent to which the
basic training course, certification programs, and standard operating procedures comply
with Recommendation #4 by ensuring that investigative personnel are prepared and
accountable for their performances is unknown. Georgia, therefore, is only in partial
compliance with Recommendation #4.

108

CALEA S TANDARDS, supra note 21, at 35-1 (Standard 35.1.2); GLECP STANDARDS , supra note 20, at
14 (Standard 3.7).
109
MLEOM, supra note 24, at 4-1.
110
Id. at 6.
111
ASCLD/LAB 2003 MANUAL , supra note 35, at 19, app. 1; FQS-I, ISO/IEC 17025 ACCREDITATION
STANDARDS , supra note 37, at 24.
112
See e.g., GA. B UREAU OF I NVESTIGATION, DIVISION OF FORENSIC S CIENCES, 1999 ANNUAL R EPORT,
at http://www.ganet.org/gbi/99annual/99ar_dofs.html (last visited on Oct. 5, 2005) (stating “[a] training
plan was developed that allowed support staff, such as laboratory assistants, evidence receiving technicians
and forensic pathologists, to come on board and begin working within 30 days of hire. The training
programs for scientists were lengthier—four months for toxicologists and three months for chemists.”); GA.
BUREAU OF INVESTIGATION , DIVISION OF FORENSIC S CIENCES, 2000 ANNUAL R EPORT, at
http://www.ganet.org/gbi/00annual/00ar_dofs.html (last visited on Oct. 5, 2005) (indicating that after
completing the three to four months of training, the scientists “successfully completed the necessary
knowledge, skills and abilities requirements to perform complex scientific testing and courtroom
testimony”); GA. BUREAU OF INVESTIGATION, DIVISION OF FORENSIC SCIENCES, 2001 ANNUAL R EPORT, at
http://www.ganet.org/gbi/01annual/01ar_dofs.html (last visited on Oct. 5, 2005); G A. B UREAU OF
INVESTIGATION,
DIVISION
OF
F ORENSIC
S CIENCES ,
2002
ANNUAL
R EPORT,
at
http://www.ganet.org/gbi/02annual/DOFS_FY02.pdf (last visited on Oct. 5, 2005) (stating “[d]uring
FY’01, additional instruction was given to the scientists to complete training in their respective fields of
forensic science”).

65

E. Recommendation #5
Ensure that there is adequate opportunity for citizens and investigative personnel to
report misconduct in investigations.

Police departments, sheriff’s departments, state law enforcement agencies, transportation
police departments, and university police departments in Georgia certified under CALEA
and/or GLECP are required to establish written directives requiring written investigative
procedures for all complaints against the agency and/or its employees.113 It appears,
therefore, that certified law enforcement agencies may have adopted written directives
governing complaints against the agency and/or its employees, but the extent to which
these procedures comply with Recommendation #5 is unknown.
F. Recommendation #6
Provide adequate funding to ensure the proper preservation and testing of
biological evidence.

The amount of funding dedicated to the preservation and testing of biological evidence is
unknown, making it impossible to assess the adequacy of the funding. However, it
appears that the costs associated with storing evidence may be absorbed by the agency
designated by the court to store the evidence. The court also has the discretion to
determine which party, either the inmate or the state, is responsible for paying for the
post-conviction DNA testing.114 The inmate may be required to absorb the costs of the
test, regardless of where the test is conducted, as long as the inmate is not indigent.115 If
the inmate is indigent, the court is responsible for paying for the test from the state fine
and forfeiture fund.116 Even though we are aware of which agency or party may be
responsible for absorbing the costs associated with storing and testing DNA evidence, it
remains unclear whether the State of Georgia provides adequate funding to ensure the
proper preservation and testing of DNA evidence.

113

CALEA S TANDARDS, supra note 21, at 52-1 (Standard 52.1.1); GLECP STANDARDS , supra note 20, at
10 (Standard 2.7).
114
See supra notes 74-76 and accompanying text.
115
Id.
116
Id.

66

CHAPTER THREE
LAW ENFORCEMENT IDENTIFICATIONS AND INTERROGATIONS
INTRODUCTION TO THE ISSUE
Eyewitness misidentification and false confessions are two of the leading causes of
wrongful convictions. Between 1983 and 2003, approximately 199 previously convicted
“murderers” were exonerated nationwide.1 In about 50% of these cases, there was at
least one eyewitness misidentification, and 21% involved false confessions.2
Lineups and Showups
Numerous studies have shown that the manner in which lineups and showups are
conducted affects the accuracy of eyewitness identification. To avoid misidentification,
the group should include foils who resemble the suspect, and the administering officer
should be unaware of the suspect’s identity. Caution in administering lineups and showups is especially important because flaws can easily taint later lineup and at-trial
identifications.3
Law enforcement agencies should consider using a sequential lineup or photospread,
rather than presenting everyone to the witness simultaneously.4 In the sequential
approach, the witness views one person at a time and is not told how many s/he will see.5
As each person is presented, the eyewitness states whether or not it is the perpetrator.6
Once an identification is made in a sequential procedure, the procedure stops.7 The
witness thus is encouraged to compare the features of each person viewed to the witness’
recollection of the perpetrator rather than comparing the faces of the various people in the
lineup or photospread to one another in a quest for the “best match.”
Law enforcement agencies also should videotape or digitally record identification
procedures, including the witness’ statement regarding his/her degree of confidence in the
identification. In the absence of a videotape or digital recorder, law enforcement
agencies should photograph and prepare a detailed report of the identification procedure.

1

See Samuel R. Gross et al., Exonerations in the United States, 1989 through 2003 (2004), available at
http://www.law.umich.edu/NewsAndInfo/exonerations-in-us.pdf (last visited on Jan. 6, 2006).
2
See id.
3
See B RYAN C UTLER, E YEWITNESS TESTIMONY: C HALLENGING YOUR OPPONENT’ S W ITNESSES 13-17,
42-44 (2002).
4
Id. at 39.
5
Id..
6
Id.
7
Id.

67

Audio or Videotaping of Custodial Interrogations
Electronically recording interrogations from their outset—not just from when the suspect
has agreed to confess—can help avoid erroneous convictions. Complete recording is on
the increase in this country and around the world. Those police departments who make
complete recordings have found the practice beneficial to law enforcement.8
Complete recording may avert controversies about what occurred during an interrogation,
deter law enforcement officers from using dangerous and/or prohibited interrogation
tactics, and provide courts with the ability to review the interrogation and the confession.

8

See Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J.
CRIM. L. & C RIMINOLOGY 1127 (2005).

68

I. FACTUAL DISCUSSION
The State of Georgia does not require law enforcement agencies to adopt special
procedures on identifications and interrogations. However, it does require all law
enforcement officials to take a basic training course, regulated by the Georgia Peace
Officer Standards and Training Council. Moreover, the Georgia Association of Chiefs of
Police has adopted the Sample Law Enforcement Operations Manual, which is derived
from the Model Law Enforcement Operations Manual authored by the Georgia
Department of Community Affairs. This Section will discuss the requirements of the
basic training course and the standard procedures contained in the Sample Law
Enforcement Operations Manual and the Model Law Enforcement Operations Manual.
Additionally, this Section will discuss the standards with which law enforcement
agencies must comply to obtain certification by the Georgia Law Enforcement
Certification Program and national accreditation by the Commission on Accreditation for
Law Enforcement Agencies. Lastly, given that Georgia case law governs all pre-trial
identifications and interrogations, this Section will also discuss judicial determinations of
the propriety of certain law enforcement actions.
A. Georgia Peace Officer Standards and Training Council
The Georgia Peace Officer Standards and Training Council (POST Council) is the
regulatory body authorized by the legislature to, among other things, (1) certify
academies as authorized to conduct basic and specialized training of law enforcement
personnel; (2) prescribe minimum qualifications for certification of academy directors
and instructors; (3) reevaluate the certifications of academies, and suspend academies,
directors, and instructors who fail to maintain minimum qualifications for certification;
(4) determine whether candidates have met the qualifications for employment as a peace
officer, and grant or deny certification based on that determination; (5) establish and
modify the curriculum and minimum number of hours for the basic training course and
establish the curriculum for any advanced instruction deemed advisable by the Council;
and (6) adopt such rules and regulations as are necessary to carry out these and other
legislatively authorized duties.9
A “peace officer” is defined, for the purposes of this Section, as “[a]n agent, operative, or
officer of this state, a subdivision or municipality thereof, . . . who, as an employee for
hire or as a volunteer, is vested either expressly by law or by virtue of public employment
or service with authority to enforce the criminal or traffic laws through the power of
arrest and whose duties include the preservation of public order, the protection of life and
property, and the prevention, detection, or investigation of crime.”10 To obtain

9

O.C.G.A. § 35-8-7 (2005). The POST Council consists of nineteen voting members and five advisory
members. O.C.G.A. § 35-8-3(a) (2005).
10
O.C.G.A. § 35-8-2(8)(A) (2005). There are, however, other law enforcement officials included in the
definition of a “peace officer” that are not relevant to this discussion, such as (1) an enforcement officer
employed by the Department of Transportation in its Office of Permits and Enforcement; (2) any person

69

certification as a peace officer, one must normally meet certain criteria 11 and complete a
statutorily required basic training course12 at a POST Council-certified academy,13 unless
the candidate has received other instruction that the POST Council deems equivalent to
that which is taught in the POST Council basic training course.14
The POST Council provides law enforcement academies with a mandatory curriculum
for the basic training course that consists of 404 hours of instruction, including eight
hours of training on interviews and interrogations.15 In addition to providing instruction
on obtaining voluntary confessions from suspects, the chapter on interviews and
interrogations provides in-depth training on the time, duration, and setting of a witness
interview and techniques for conducting a good interview and for avoiding a bad
interview.16

employed by the Department of Juvenile Justice who is designated by the commissioner to investigate and
apprehend unruly and delinquent children; (3) personnel who are authorized to exercise the power of arrest,
who are employed or appointed by the Department of Juvenile Justice, and whose full-time duties include
the preservation of public order, the protection of life and property, the detection of crime, or the
supervision of delinquent and unruly children in the department's institutions, facilities, or programs; (4)
personnel who are authorized to exercise the power of arrest and who are employed or appointed by the
Department of Corrections, the State Board of Pardons and Paroles, municipal correctional institutions
employing 300 or more correctional officers, county probation systems, and county correctional
institutions; and (5) an administrative investigator who is an agent, operative, investigator, or officer of this
state whose duties include the prevention, detection, and investigation of violations of law and the
enforcement of administrative, regulatory, licensing, or certification requirements of his/her respective
employing agency.
11
See O.C.G.A. § 35-8-8(a) (2005). Accordingly, a peace officer must (1) be at least 18 years of age; (2)
be a citizen of the United States; (3) have obtained a high school diploma or the recognized equivalent; (4)
not have been convicted of any state or federal felonies or sufficient misdemeanors to establish a pattern of
disregard for the law; (5) be fingerprinted for a background check; (6) possess good moral character; (7)
complete an oral interview; (8) be found free from an adverse physical, emotional, or mental condition; and
(9) successfully complete the basic training course entrance examination. See also GA. PEACE O FFICER
STANDARDS & TRAINING COUNCIL R. 464-3-.02(1), (2), available at http://www.gapost.org/5Trng.htm (last
visited on Nov. 1, 2005) (delineating the requisite criteria for U.S. citizens and non-citizens to obtain
certification as a peace officer).
12
O.C.G.A. § 35-8-9(a), (b) (2005); G A. P EACE OFFICER S TANDARDS & TRAINING C OUNCIL R. 464-3.03, available at http://www.gapost.org/5Trng.htm (last visited on Nov. 1, 2005).
13
O.C.G.A. § 35-8-11 (2005).
14
O.C.G.A. § 35-8-9(b) (2005).
15
See GA. P EACE OFFICER STANDARDS & TRAINING C OUNCIL, 404 HOUR BASIC LAW ENFORCEMENT
TRAINING
COURSE
(11th
ed.
2003)
(table
of
contents),
available
at
http://www.gapost.org/pdf_file/bletc404.pdf (last visited on Nov. 1, 2005). The curriculum for this training
course is the minimum level of instruction and training for law enforcement officials required to be taught
at POST Council-certified training academies. Based on the course’s table of contents and a review of
certain sections of course curriculum related to interviews and interrogations, this basic training course
does not appear to include any instruction on conducting pre-trial identification procedures. See id.; GA.
PEACE OFFICER STANDARDS & TRAINING C OUNCIL, 404 HOUR B ASIC LAW ENFORCEMENT TRAINING
COURSE 4.5-1 (11th ed. 2003) [hereinafter POST C OUNCIL BASIC TRAINING C OURSE]; see also O.C.G.A. §
35-8-5(15) (2005).
16
POST C OUNCIL B ASIC TRAINING COURSE , supra note 15, at 4.5-3 to -10.

70

1. Timing, Duration, and Setting of a Witness Interview
Non-suspect witnesses should generally be interviewed “as soon as possible while details
are fresh and cooperation is most likely,” and interviews should be scheduled with the
“least necessary intrusion” upon the normal lives of witnesses.17 Trainees are instructed
that an interview should “take as long as it takes,” in order to build a rapport with the
witness and to ensure accurate results. 18 An interview should be conducted in a setting
that is physically comfortable for both the officer and the witness, and which provides
privacy to facilitate openness on the part of the witness.19 For example, non-suspect
interviews should be arranged at the home or business of the witness, or in the law
enforcement station in a private room.20 A proper interview setting should be properly
heated, cooled, and ventilated, and away from noisy distractions.21
2. Techniques for Conducting a Good Interview and Avoiding a Bad Interview
At the beginning of the interview, the officer should identify himself/herself in a friendly
manner and even exchange a few pleasantries in order to relax the witness and to develop
rapport with the witness.22 An officer must “[n]ever be sarcastic or rude” to the
witness.23 The curriculum suggests that the officer should attempt to motivate the
witness to answer questions by determining the reason for a witness’ reluctance to
cooperate and by appealing to his/her sense of justice, rather than threatening
consequences for lack of cooperation.24 Officers should keep the witness talking by not
interrupting or criticizing the witness, and by asking open-ended questions that generate
narrative responses.25 The use of leading or yes/no questions during an interview, as well
as specific questions at an interview’s onset, can lead to incomplete, inaccurate or vague
responses from the witness and should be avoided.26
3. Video or Audio-Taping the Entire Interview or Interrogation
The POST Council requires at least written recording of the interview or interrogation,
including the warning, waiver, and circumstances of the interview/interrogation and

17

Id. at 4.5-3.
Id.
19
Id. at 4.5-4 (noting that interviews should not be conducted in noisy places as it may lead to confusion
of facts).
20
Id.
21
Id.
22
Id. at 4.5-5 to -6.
23
Id. at 4.5-5.
24
Id. at 4.5-6.
25
Id. at 4.5-6 to -7.
26
Id. at 4.5-7.
18

71

suggests that “video or audio-taping [of] the entire interview in addition to or in place of
professional stenographic services” is acceptable.27
B. Georgia Model Law Enforcement Operations Manual and Sample Law
Enforcement Operations Manual
The Model Law Enforcement Operations Manual (MLEOM) was developed by the
Georgia Department of Community Affairs as a comprehensive document identifying
“professional standards and requirements for law enforcement operations.”28 The
Department of Community Affairs suggests that the MLEOM be used by law
enforcement agencies to develop and/or revise their own policies and procedures
manuals, in order to keep current with service demands, procedural changes, and new
statutory and case law.29 Thus, the adoption of the MLEOM by individual law
enforcement agencies is not mandatory. It appears that the Georgia Association of Chiefs
of Police has adopted the MLEOM as its own Sample Law Enforcement Operations
Manual (SLEOM).30
Chapter 17 of the SLEOM deals with “investigative functions” and consists of specific
Standard Operating Procedures on actions law enforcement officials should do and avoid
when conducting lineups, photo arrays, and showups.31 Chapter 8-3 of the MLEOM and
SLEOM consists of Standard Operating Procedures relating to “confessions and
interrogations.”32 The following Parts will discuss these specific Standard Operating
Procedures in detail.

27

Id. at 4.5-18 (noting that a written record should still be made in case the electronic record is
destroyed).
28
GA. DEP ’T OF C MTY. AFFAIRS , MODEL L AW ENFORCEMENT O PERATIONS MANUAL (6th ed. 1996)
(acknowledgment),
available
at
http://www.dca.state.ga.us/development/research/programs/downloads/law/ackn.html (last visited on Nov.
7, 2005).
29
Id.
30
See GA. ASS’N OF CHIEFS OF P OLICE , SAMPLE LAW ENFORCEMENT OPERATIONS MANUAL [hereinfafter
SLEOM], available at http://www.gachiefs.com/statecertification/LawEnforcementOperationManual.html
(last visited on Nov. 7, 2005). It appears that the SLEOM is exactly the same as the MLEOM. When
discussing, however, the Standard Operating Procedures regarding line-ups, photo arrays, and show-ups,
we only refer to Chapter 17 of the SLEOM because the same chapter of the MLEOM is not accessible on
the website of the Georgia Department of Community Affairs.
31
Id.
at
17-27,
available
at
http://www.gachiefs.com/statecertification/Sample%20LE%20Manual/SCHAPTER17.doc (last visited on
Nov. 16, 2005).
32
GA. DEP ’T OF C MTY. A FFAIRS, MODEL LAW ENFORCEMENT O PERATIONS MANUAL 8-16 [hereinafter
MLEOM]
(Standard
Operating
Procedure
8-3),
available
at
http://www.dca.state.ga.us/development/research/programs/downloads/law/Law.html (last visited on Jan. 9,
2006); SLEOM, supra note 30, at 8-16 (Standard Operating Procedure 8-3).

72

1. The SLEOM on Lineups
Standard Operating Procedure 17-9 states that a law enforcement official in charge of
conducting the lineup should (1) advise the suspect that s/he may stand at any position in
the lineup that s/he prefers; (2) “ensure that all participants in the lineup are numbered
consecutively and are referred to only by number;” (3) “ensure that a complete written
record and videotape recording of the lineup proceedings is made and retained;” (4)
“ensure that witnesses are not permitted to see nor are they shown any photographs of the
[suspect] immediately prior to the lineup;” (5) “ensure that not more than one witness
views the lineup at a time and that they are not permitted to speak with one another
during lineup proceedings;” and (6) “scrupulously avoid using statements, clues, casual
comments or providing unnecessary or irrelevant information that in any manner may
influence the witnesses’ decision-making process or perception.”33 Standard Operating
Procedure 17-9 also suggests that “four to six other persons act as ‘fill ins’ at the lineup
who are the same race, sex and approximate height, weight, age and physical appearance
and who are similarly clothed.”34
2. The SLEOM on Photo Arrays
Standard Operating Procedure 17-9 suggests that those conducting photographic
identifications “must use multiple photographs shown individually to a witness or
simultaneously in a book or array.”35 Furthermore, those conducting photo arrays should
generally abide by certain principles, similar to those used when conducting lineups.
These principles include (1) “us[ing] at least six photographs of individuals who are
reasonably similar in age, height, weight and general appearance and of the same sex and
race;” (2) “whenever possible, avoid[ing] mixing color and black and white photos;” (3)
us[ing] photos of the same size and basic composition, (4) “never mix[ing] mug shots
with other snapshots;” (5) “never includ[ing] more than one photo of the same suspect;”
(6) “cover[ing] any portions of mug shots or other photographs that provide identifying
information on the subject;” (7) “show[ing] the photo array to only one witness at a
time;” (8) “never mak[ing] suggestive statements that may influence the judgment or
perception of the witness;” and (9) “preserving the photo array, together with full
information about the identification process, for future reference.”36

33

SLEOM, supra note 30, at 17-29 (Standard Operating Procedure 17-9 ). Chapter 17 also notes that the
officer in charge of the pre-trial procedure should inform the suspect of his/her right to counsel, obtain a
waiver, and, if no waiver is given, allow the suspect time to confer with counsel and allow counsel to
observe the procedure. Id.
34
Id.
35
Id. at 17-28.
36
Id.

73

3. The SLEOM on Showups
Standard Operating Procedure 17-9 defines a showup as “the presentation of one suspect
to an eyewitness in a short time frame following commission of a crime.”37 The Standard
Operating Procedure notes that because of the “inherent suggestiveness” of the showup,
its use “should be avoided whenever possible in preference for the use of a lineup.”38
However, when exigent circumstances require the use of showups, the Standard
Operating Procedure states that (1) it “should not be conducted when the suspect is in a
cell, manacled or dressed in jail clothing;” (2) it “should not be conducted with more than
one witness;” (3) “the witnesses should not be permitted to communicate before or after
the showup regarding the identification of the suspect;” (4) “[t]he same suspect should
not be presented to the same witness more than once;” (5) “[s]howup suspects should not
be required to put on clothing worn by the perpetrator, to speak words uttered by the
perpetrator or to perform other actions of the perpetrator;” and (6) “[w]ords or conduct of
any type by officers that may suggest to the witness that the individual is or may be the
perpetrator should be scrupulously avoided.”39
4. The MLEOM and SLEOM on Documenting Confessions and Interrogations
Standard Operating Procedure 8-3 states that “[w]henever possible, any statement made
by the accused should be recorded on either audio or video tape . . . includ[ing] the
accused's waiver of rights at both the beginning and end of the tape.”40 The procedure
also requires the inclusion of a transcript of all recorded statements in the case file.41
If it is not possible to record the accused's statement, “the officer must fully document the
content of the statement.”42
C. Law Enforcement Accreditation Programs
1. Commission on Accreditation for Law Enforcement Agencies, Inc.
Forty-two 43 police departments, sheriff departments, state law enforcement agencies,
transportation police departments, and university police departments in Georgia have
been accredited or are in the process of obtaining accreditation by the Commission on
Accreditation for Law Enforcement Agencies, Inc. (CALEA), which is an independent

37

Id. at 17-27.
Id.
39
Id. at 17-27 to -28.
40
MLEOM, supra note 32, at 8-16 (Standard Operating Procedure 8-3); SLEOM, supra note 30, at 8-16
(Standard Operating Procedure 8-3).
41
MLEOM, supra note 32, at 8-16 (Standard Operating Procedure 8-3); SLEOM, supra note 30, at 8-16
(Standard Operating Procedure 8-3).
42
MLEOM, supra note 32, at 8-16 (Standard Operating Procedure 8-3); SLEOM, supra note 30, at 8-16
(Standard Operating Procedure 8-3).
43
CALEA Online, Agency Search, at http://www.calea.org/agcysearch/agencysearch.cfm (last visited on
Nov. 3, 2005) (using second search function and designating “U.S.” and “Georgia” as search criteria).
38

74

accrediting authority established by the four major law enforcement membership
associations in the United States. 44
To obtain accreditation, a law enforcement agency must complete a comprehensive
process consisting of (1) purchasing an application; (2) executing an Accreditation
Agreement and submitting a completed application; (3) completing an Agency Profile
Questionnaire; (4) completing a thorough self-assessment to determine whether the law
enforcement agency complies with the accreditation standards and developing a plan to
come into compliance; and (5) participating in an on-site assessment by a team selected
by the Commission to determine compliance who will submit a compliance report to the
Commission.45 After completion of these steps, a hearing is held where a final decision
on accreditation is rendered.46 The CALEA standards are used to “certify various
functional components within a law enforcement agency—Communications, Court
Security, Internal Affairs, Office Administration, Property and Evidence, and Training.”47
CALEA Standard 42.2.3 requires the creation of a written directive that “establishes steps
to be followed in conducting follow-up investigations . . . [including] identifying and
apprehending suspects.”48
2. Georgia’s Law Enforcement Certification Program
The Georgia Association of Chiefs of Police established the Law Enforcement
Certification Program (GLECP) in 1997 as a stepping-stone to national accreditation
under CALEA’s Standards for Law Enforcement Agencies.49 This program is endorsed
by the State of Georgia.50 Ninety police, sheriff, state law enforcement, transportation
police, and university police departments in Georgia have obtained certification under
these standards,51 thirty-three of which also are accredited or in the process of obtaining
accreditation under the CALEA Standards for Law Enforcement Agencies.52

44

CALEA Online, About CALEA, at http://www.calea.org/newweb/AboutUs/Aboutus.htm (last visited
on Nov. 3, 2005) (noting that the Commission was established by the International Association of Chiefs of
Police (IACP), National Organization of Black Law Enforcement Executives (NOBLE), National Sheriffs'
Association (NSA), and Police Executive Research Forum (PERF)).
45
CALEA
Online,
The
Accreditation
Process,
at
http://www.calea.org/newweb/accreditation%20Info/process1.htm (last visited on Nov. 3, 2005).
46
Id.
47
COMM’ N ON A CCREDITATION FOR LAW ENFORCEMENT A GENCIES, INC., S TANDARDS FOR LAW
ENFORCEMENT A GENCIES, T HE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY
th
ACCREDITATION PROGRAM, at v (4 ed. 2001) [hereinafter CALEA STANDARDS ].
48
Id. at 42-3 (Standard 42.2.3).
49
GEORGIA LAW ENFORCEMENT C ERTIFICATION P ROGRAM: STANDARDS MANUAL (3d ed. 2002)
[hereinafter GLECP STANDARDS ] (introduction).
50
Id.
51
Ga.
Ass’n
of
Chiefs
of
Police,
State
Certified
Agencies,
at
http://www.gachiefs.com/statecertification/StateCertifiedAgencies.html (last visited on Nov. 16, 2005).
52
See CALEA Online, Agency Search, at http://www.calea.org/agcysearch/agencysearch.cfm (last
visited on Nov. 3, 2005) (using second search function and designating “U.S.” and “Georgia” as search
criteria).

75

The GLECP standards “reflect the best professional requirements and practices for a law
enforcement agency,” and they “provide a description of ‘what’ must be accomplished by
the agency but allow[] that agency latitude in determining ‘how’ it will achieve its
compliance with each applicable standard.”53 Obtaining certification by the GLECP is a
six-step process consisting of (1) application; (2) policy development; (3) assessment of
compliance with the standards; (4) joint committee review; (5) awards ceremony; and (6)
monitoring compliance.54
The GLECP standards, mirroring some of the CALEA standards related to identifications
and interrogations, include requirements that law enforcement agencies establish written
directives addressing (1) confessions and admissions,55 (2) interviews with witnesses
during preliminary investigations,56 (3) identifications of suspects and follow-up
interrogations,57 and (4) the scheduling of lineups for witnesses. 58
D. Constitutional Standards Relevant to Identifications and Interrogations
Pre-trial witness identifications, such as those taking place during lineups, showups, and
photo arrays, are governed by the constitutional due process guarantee of a fair trial.59 A
due process violation occurs where the trial court allows testimony concerning pre-trial
identification of the defendant if (1) the identification procedure employed by law
enforcement was impermissibly suggestive,60 and (2) under the totality of the
circumstances,61 the suggestiveness gave rise to a very substantial likelihood of
irreparable misidentification.62
53

GLECP STANDARDS , supra note 49.
Ga.
Ass’n
of
Chiefs
of
Police,
State
Certification
Program,
at
http://www.gachiefs.com/statecertification/StateCertProgramDetailsTEMP.htm (last visited on Nov. 16,
2005).
55
GLECP STANDARDS , supra note 49, at 18 (Standard 4.2(a)).
56
Id. at 30 (Standard 5.20).
57
Id. at 30-31 (Standard 5.21).
58
Id. at 45 (Standard 6.12).
59
See Neil v. Biggers, 409 U.S. 188, 196-99 (1972); Heyward v. State, 224 S.E.2d 383, 384 (Ga. 1976).
60
Neil, 409 U.S. at 196-97; Clark v. State, 515 S.E.2d 155, 161 (Ga. 1999).
61
Neil, 409 U.S. at 196 (noting that whether the impermissible suggestiveness of a pre-trial identification
gave rise to a very substantial likelihood of misidentification must be “determined ‘on the totality of the
circumstances’”); Clark, 515 S.E.2d at 161; Miller v. State, 512 S.E.2d 272, 274 (Ga. 1999); Heng v. State,
554 S.E.2d 243, 246 (Ga. Ct. App. 2001); Pack v. State, 356 S.E.2d 557, 558 (Ga. Ct. App. 1987) (noting
that a “claimed violation of due process of law in the conduct of pre-trial confrontations depends on the
totality of the circumstances”).
62
The U.S. Supreme Court and the Georgia Court of Appeals have stated that, for testimony regarding
the pre-trial procedure to be excluded, its impermissible suggestiveness should give rise to a very
substantial likelihood of “irreparable” misidentification. See, e.g., Neil, 409 U.S. at 196-97; Simmons v.
United States, 390 U.S. 377, 384 (1968); Felder v. State, 579 S.E.2d 28, 33 (Ga. Ct. App. 2003); Turner v.
State, 575 S.E.2d 727, 730 (Ga. Ct. App. 2002); Heng, 554 S.E.2d at 246-47; Brodes v. State, 551 S.E.2d
757, 759 (Ga. Ct. App. 2001); Randolph v. State, 538 S.E.2d 139, 145 (Ga. Ct. App. 2000); Jackson v.
State, 531 S.E.2d 747, 751 (Ga. Ct. App. 2000); Selbo v. State, 368 S.E.2d 548, 550 (Ga. Ct. App. 1988);
Pack, 356 S.E.2d at 559. However, the Georgia Supreme Court uses this standard, citing to Neil, without
including the word “irreparable” and without providing an explanation for such omission. See, e.g., Clark,
54

76

A pre-trial identification procedure is impermissibly suggestive when it leads the witness
to an “all but inevitable identification” of the defendant as the perpetrator of the
offense,63 or is the equivalent of law enforcement telling the witness “this is our
suspect.”64 Any alleged “taint which renders an identification procedure impermissibly
suggestive must [stem] from the method used in the identification procedure,” rather than
from other factors that affect the credibility of the witness.65
A court need only consider whether there was a very substantial likelihood of irreparable
misidentification if it first determines that the pre-trial identification procedures used by
law enforcement were impermissibly suggestive.66 In making the determination of
whether, under the totality of the circumstances, the use of an impermissibly suggestive
pre-trial identification procedure would lead to a very substantial likelihood of irreparable
misidentification, the court should consider the following factors: “(1) the opportunity of
the witness to view the criminal at the time of the crime, (2) the witness’ degree of
attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level
of certainty demonstrated by the witness at the confrontation, and (5) the length of time
between the crime and the confrontation.”67 Absent a substantial likelihood of

515 S.E.2d at 161; Miller, 512 S.E.2d at 274. This may best be explained by a remark in Neil where the
U.S. Supreme Court stated that “[w]hile the [very substantial likelihood of irreparable misidentification] . .
. standard . . . determin[es] whether an in-court identification would be admissible in the wake of a
suggestive out-of-court identification, with the deletion of the word “irreparable” it serves equally well as a
standard for the admissibility of testimony concerning the out-of-court identification itself.” Neil, 409 U.S.
at 198. Both litigants in Clark and Miller seem only to be challenging the actual pre-trial procedure rather
than the in-court identification based on the pre-trial procedure. Clark, 515 S.E.2d at 161; Miller, 512
S.E.2d at 274. Regardless of what appears to be separate standards for challenges to pre-trial
identifications and in-court identifications based on pre-trial identifications, Georgia courts have also
applied the more stringent “very substantial likelihood of irreparable misidentification” standard in cases
challenging in-court eyewitness identification relying on, and allegedly tainted by, previous pre-trial
identification procedures. See, e.g., Turner, 575 S.E.2d at 730.
63
Clark, 515 S.E.2d at 161 (citing Brewer v. State, 463 S.E.2d 906, 911 (Ga. Ct. App. 1995)); Miller,
512 S.E.2d at 274 (citing Brewer, 463 S.E. 2d at 911).
64
Clark, 515 S.E.2d at 161; see also Heyward, 224 S.E.2d at 384-85 (stating instead “[t]his is the man”).
65
Clark, 515 S.E.2d at 161 (citing Sherman v. State, 485 S.E.2d 557 (1997)).
66
Miller, 512 S.E.2d at 274.
67
Heyward, 224 S.E.2d at 385 (considering that (1) the witnesses had the time and proper lighting to
view the perpetrator at the time of the crime, (2) the witnesses, as the victims, were fully aware of the
assailants, (3) the prior descriptions of the perpetrator by the witnesses were general and attributed more
weight to the defendant than was accurate, (4) three witnesses were certain of their pre-trial identifications
and that certainty remained at trial, and (5) less than a week elapsed between the robbery and the lineup,
there was not a substantial likelihood of misidentification from the employed lineup under the totality of
the circumstances); see also Smith v. State, 222 S.E.2d 357, 360 (Ga. 1976) (even assuming that the lineup
was suggestive, the facts that the witness had five minutes to view the assailant in a well-lit room before
her abduction, she provided police with a “fairly detailed” description of the assailant, and she immediately
and unequivocally identified the defendant upon seeing the lineup, eliminated any substantial likelihood of
misidentification); Heng, 554 S.E.2d at 246-47 (finding that the facts that the witness looked right into the
defendant’s eyes and responded to his orders during the crime, that the witness did not remember the
defendant wearing orange in the lineup, and that the identification occurred the day after the robbery
removed any substantial likelihood that the impermissibly suggestive lineup would lead to irreparable

77

irreparable misidentification, pre-trial identification evidence is for the jury to weigh,
even if the procedure was impermissibly suggestive.68
Even where there has been a tainted pre-trial identification procedure, an in-court
identification is not constitutionally inadmissible if the witness has sufficient independent
basis for the in-court identification, rather than pure reliance on the suggestive pre-trial
procedure.69

misidentification); Randolph, 538 S.E.2d at 145 (concluding that the facts that (1) the witness looked into
the perpetrator’s eyes during the entire robbery, despite the fact that the perpetrator was wearing a mask,
(2) the witness ran out the back door and saw the perpetrator take off his mask in the getaway car, (3) the
witness was 100 percent sure of his identification, and (4) the witness identified the defendant during the
lineup in about four seconds, led to a finding that there was no substantial likelihood of irreparable
misidentification, assuming any impermissible suggestiveness); Anderson v. State, 519 S.E.2d 463, 472
(Ga. Ct. App. 1999) (holding that even if the lineup was so impermissibly suggestive, the fact that eight
witnesses identified the defendant as the perpetrator “through other means than the physical lineup
indicates that there was no irreparable misidentification”); McCoy v. State, 378 S.E.2d 888, 890-91 (Ga.
Ct. App. 1989) (holding that there was no substantial likelihood of irreparable misidentification due to the
facts that (1) the crime happened during the day and the witness saw the perpetrator and conversed with
him, (2) the witness described events in detail and described the perpetrator’s clothing accurately, (3) the
witness identified the perpetrator “without exhibiting any hesitation or doubt,” and (4) there was an
“unusually short period of time” between the crime and identification); Pack v. State, 356 S.E.2d 557, 558
(Ga. Ct. App. 1987) (finding no substantial likelihood of irreparable misidentification).
68
See Pack, 356 S.E.2d at 558.
69
See Turner v. State, 575 S.E.2d 727, 730 (Ga. Ct. App. 2002) (holding that even if the pre-trial photo
array was impermissibly suggestive, the in-court identification was otherwise admissible because the
witness testified that she identified the defendants as the perpetrators based on her own observations and
recollections of their faces from the robbery); Rivers, 484 S.E.2d at 523; McCoy, 378 S.E.2d at 891; Selbo
v. State, 368 S.E.2d 548, 550 (Ga. Ct. App. 1988) (holding that the witness’s in-court identification had
such independent origin, in that he observed the defendant at the scene of the crime and provided a
composite sketch, only three hours after the incident, that was almost identical to the defendant’s photo
shown in the array a week later); Pack, 356 S.E.2d at 559 (holding that the in-court identification was
clearly independent of the pre-trial photographic lineup).

78

II. ANALYSIS
A. Recommendation #1
Law enforcement agencies should adopt guidelines for conducting lineups and
photospreads in a manner that maximizes their likely accuracy. Every set of
guidelines should address at least the subjects, and should incorporate at least the
social scientific teachings and best practices, set forth in the American Bar
Association Best Practices for Promoting the Accuracy of Eyewitness Identification
Procedures (which has been reproduced below, in relevant part and with slight
modifications).

A number of law enforcement agencies in Georgia have obtained certification by either
or both CALEA and the GLECP. These programs, however, do not require the certified
agencies to adopt specific guidelines for conducting lineups and photospreads in a
manner that maximizes their likely accuracy. In fact, the GLECP standards recognize
that they merely provide a “description of ‘what’ must be accomplished by the agency
but allow[] that agency latitude in determining ‘how’ it will achieve its compliance with
each applicable standard.”70 For example, Standard 5.21 of the GLECP and Standard
42.2.3 of CALEA merely require law enforcement agencies to create a written directive
that “establishes steps to be followed in conducting follow-up investigations,” including
identifying suspects.71
While an individual law enforcement agency could create specific guidelines that mirror
the requirements of the American Bar Association Best Practices for Promoting the
Accuracy of Eyewitness Identification Procedures (ABA Best Practices) in order to
comply with Standard 5.21 of the GLECP or Standard 42.2.3 of CALEA, we were unable
to obtain sufficient information to ascertain whether Georgia law enforcement agencies,
certified or otherwise, are in compliance with the ABA Best Practices.
Additionally, Standard Operating Procedure 17-9 of the SLEOM suggests a number of
specific actions to be taken and avoided by law enforcement officials while conducting
pre-trial identification procedures. While these actions are specific and responsive to the
following ABA Best Practices, adoption of the SLEOM by individual law enforcement
agencies is not mandatory and we were unable to ascertain to what extent law
enforcement agencies in Georgia have adopted Standard Operating Procedure 17-9 of the
SLEOM.
Regardless of whether the law enforcement agency has obtained certification or has
adopted any sample standard operating procedures, all pre-trial identification
procedures administered by law enforcement agencies are ultimately subject to
constitutional due process limitations. Thus, in assessing compliance with each ABA

70
71

GLECP STANDARDS , supra note 49.
Id. at 30-31.

79

Best Practice, it is also necessary to discuss the Georgia courts’ treatment of certain
actions by law enforcement officials in administering pre-trial identification procedures.
1. General Guidelines for Administering Lineups and Photospreads
a. The guidelines should require, whenever practicable, the person who conducts a
lineup or photospread and all others present (except for defense counsel, when
his or her presence is constitutionally required) should be unaware of which of
the participants is the suspect.

Numerous law enforcement agencies in Georgia are certified by the GLECP and/or
CALEA, which require these agencies to create a written directive that “establishes steps
to be followed in conducting follow-up investigations,” including identifying suspects.72
Although the GLECP and CALEA standards do not specifically require that all those
present at a pre-trial identification be unaware of which participant is the suspect, a law
enforcement agency complying with the GLECP and CALEA standards could create a
guideline that requires all those present at a lineup to be unaware of which participant is
the suspect. We were, however, unable to ascertain whether law enforcement agencies,
certified by the GLECP, CALEA or otherwise, are complying with this particular ABA
Best Practice.
b. The guidelines should require that eyewitnesses should be instructed that the
perpetrator may or may not be in the lineup; that they should not assume that
the person administering the lineup knows who is the suspect; and that they
need not identify anyone, but, if they do so, they will be expected to state in their
own words how certain they are of any identification they make.

The GLECP and CALEA standards do not specifically require that certified agencies
conducting pre-trial identification procedures instruct eyewitnesses that the perpetrator
may or may not be in the lineup, that they should not assume the official administering
the lineup knows who is the suspect, and that, although they need not identify anyone,
any identification must be in their own words. A law enforcement agency complying
with the GLECP and CALEA standards, requiring the agency to establish steps for
identifying suspects, could create a guideline that complies with this ABA Best Practice.
On this issue, Georgia courts have held that law enforcement officials displaying a lineup
to a victim or witness “should avoid telling the person that the lineup contains the . . .
suspect.”73 Courts, however, have held that where the witness gained this information
from a source independent of the police, the fact that a witness had previous knowledge
of the suspect’s gender does not make the pre-trial identification procedure impermissibly
suggestive.74 Furthermore, a police statement to a family member of the witness that the
suspect is in the lineup does not render a lineup impermissibly suggestive because “the
72

Id.; CALEA S TANDARDS, supra note 47, at 42-3 (Standard 42.2.3).
Clark v. State, 515 S.E.2d 155, 162 (Ga. 1999); see also Mitchell v. State, 223 S.E.2d 650, 654 (Ga.
1976).
74
Turner, 575 S.E.2d at 730 (holding that where a newspaper reporter, rather than the police, told the
victim that one of the suspected perpetrators was female before identifying the defendant in the pre-trial
photo array, the procedure was not impermissibly suggestive).
73

80

very fact that a lineup is being conducted suggests that a suspect is contained therein.”75
Additionally, numerous cases in Georgia illustrate witnesses stating either a percentage or
general level of certainty in their identification.76
Based on Georgia case law, it appears that those conducting lineups in Georgia are
cautioned to avoid telling the witness that the lineup contains the suspect, and witnesses
generally indicate their level of confidence in their identification. We were, however,
unable to ascertain whether Georgia case law or the relevant GLECP and CALEA
standards require full compliance with this ABA Best Practice.
2. Foil Selection, Number, and Presentation Methods
a. The guidelines should require that lineups and photospreads should use a
sufficient number of foils to reasonably reduce the risk of an eyewitness
selecting a suspect by guessing rather than by recognition.
b. The guidelines should require that foils should be chosen for their similarity to
the witness's description of the perpetrator, without the suspect's standing out in
any way from the foils and without other factors drawing undue attention to the
suspect.

The GLECP and CALEA standards do not require certified agencies conducting pre-trial
identification procedures to adopt written directives specifically requiring the use of a
sufficient number of foils that are chosen for their similarity with a witness’ description
of the perpetrator in order to reduce the risk of eyewitness guessing. A law enforcement
agency complying with the GLECP and CALEA standards, requiring the agency to
establish steps for identifying suspects, could create a guideline that complies with this
best practice.
Furthermore, Standard Operating Procedure 17-9 of the SLEOM states that a law
enforcement official in charge of conducting the lineup should employ a number of
actions to reduce the risk of a misidentification based on guessing and avoid drawing
undue attention to the suspect in the lineup. The official conducting the lineup or
photospread should (1) “[e]nsure that all participants in the lineup are numbered
consecutively and are referred to only by number;” (2) “[e]nsure that witnesses are not
permitted to see nor are they shown any photographs of the [suspect] immediately prior
to the lineup;” (3) “[s]crupulously avoid using statements, clues, casual comments or

75

Clark, 515 S.E.2d at 162.
See Cockrell v. State, 545 S.E.2d 600, 602 (Ga. Ct. App. 2001) (noting that the witness identified the
defendant as one of the perpetrators from a photo lineup, indicating that he was “95 percent positive about
his identification”); Markee v. State, 494 S.E.2d 551, 553-54 (Ga. Ct. App. 1997) (noting that when the
witness picked the defendant as the perpetrator out of a six-man photospread, she stated she was “100
percent positive” of her identification); Rivers v. State, 484 S.E.2d 519, 522 (Ga. Ct. App. 1997) (noting
that, upon viewing a photo array, the witness was “not 100 percent sure but pretty positive” that the
defendant was the perpetrator); Thomas v. State, 335 S.E.2d 135, 137 (Ga. Ct. App. 1985) (noting that
witness was “90 per cent sure” [sic] of her identification of the defendant as the perpetrator from the
photographic lineup).
76

81

providing unnecessary or irrelevant information that in any manner may influence the
witnesses' decision-making process or perception;” (4) “[w]henever possible, avoid
mixing color and black and white photos;” (5) “use photos of the same size and basic
composition;” (6) never “include more than one photo of the same suspect”; and (7)
“[c]over any portions of mug shots or other photographs that provide identifying
information on the subject.”77 Moreover, the primary investigator in the case should
include “four to six other persons [to] act as ‘fill ins’ at the lineup who are the same race,
sex and approximate height, weight, age and physical appearance and who are similarly
clothed.”78 We were unable, however, to determine to what extent these Standard
Operating Procedures have been adopted as required procedure by individual law
enforcement agencies.
A review of relevant case law demonstrates that law enforcement officials generally
prepare lineups or photo arrays containing six people.79 However, lineups with less than
six people have been considered to be not impermissibly suggestive.80 Furthermore, case
law shows that those preparing pre-trial identification procedures do so with both
numerous foils in each lineup81 and with no foils at all, rendering the suspected
perpetrator as the only participant with certain characteristics.82
Specifically, Georgia courts have deemed certain pre-trial identification procedures not
impermissibly suggestive where the suspect/defendant was the only participant of a
certain age,83 weight,84 with a certain hair color,85 and amount of facial hair.86
Furthermore, the “fact that the defendant’s skin tone was the darkest of those portrayed in

77

SLEOM, supra note 30, at 17-29.
Id. at 17-28 to -29.
79
See, e.g., Jackson v. State, 531 S.E.2d 747, 751 (Ga. Ct. App. 2000) (noting a six-man photographic
lineup); Markee, 494 S.E.2d at 553-54 (noting that the witnesses picked defendants as the perpetrators out
of a six-man photographic lineup).
80
See Manning v. State, 427 S.E.2d 521, 524 (Ga. Ct. App. 1993) (holding that a photo array of five
rather than six people was not impermissibly suggestive).
81
See, e.g., Williams v. State, 205 S.E.2d 859, 860-61 (Ga. 1974) (holding that the six-person lineup in
which all participants were male and of a similar height, size and complexion did not violate defendant’s
due process); Jackson v. State, 531 S.E.2d 747, 751 (Ga. Ct. App. 2000) (holding that the six-man photo
array in which all participants were unmasked, although the perpetrator wore a mask during the crime, was
not impermissibly suggestive).
82
See, e.g., Miller v. State, 512 S.E.2d 272, 274 (Ga. 1999) (noting that the defendant was the only
member of the six-person lineup with a full beard, but that one other participant had some facial hair).
83
Brodes v. State, 551 S.E.2d 757, 759-60 (Ga. Ct. App. 2001) (holding that the six-person photo lineup
of all black males, which included two photographs of men appearing much older than the defendant, did
not render the photo array impermissibly suggestive).
84
Green v. State, 467 S.E.2d 203, 206 (Ga. Ct. App. 1996) (holding that the fact that all the men in the
six-person photo lineup were not heavy-set like the defendant did not render the procedure impermissibly
suggestive).
85
See Talley v. State, 432 S.E.2d 667, 668 (Ga. Ct. App. 1993) (holding that differences in hair color in
the photospread did not render the procedure impermissibly suggestive).
86
See Miller, 512 S.E.2d at 274 (holding that an in-person lineup where defendant was the only
participant with a full beard was not impermissibly suggestive).
78

82

the photo lineup, where the others portrayed were of [the] defendant’s same race, was not
alone grounds for excluding the lineup” as impermissibly suggestive.87 Additionally,
discrepancies such as the photo of a defendant being slightly larger and having a different
background than the other photos in the array, and being partially cut off at the top, “are
not so great as to ‘lead the viewer inexorably to conclude that the [defendant] was the
suspect.’”88 The simple fact that the defendant was the only participant in both a photo
array and an in-person lineup does “not render the pre-trial identification procedures
impermissibly suggestive.”89
Georgia case law also discusses instances where the suspect/defendant’s clothing is
distinctly different from that of other participants. Such a lineup is not impermissibly
suggestive where the witnesses had not described the perpetrator as wearing the clothing
that the defendant wore when s/he was identified during the pre-trial identification.90
However, where the suspect/defendant was wearing the same clothing during the lineup
as the witnesses described the perpetrator wearing during the crime, the lineup procedure
is impermissibly suggestive because it leads the witness to an “all but inevitable
identification” of the defendant as the perpetrator.91 Police officials can prevent such an
infirmity by having the suspect change clothes before appearing in a photo array or
physical lineup.92
Based on this information, we were unable to ascertain whether Georgia case law or the
relevant GLECP and CALEA standards require full compliance with this ABA Best
Practice, or whether individual law enforcement agencies have adopted Standard

87

Felder v. State, 579 S.E.2d 28, 33 (Ga. Ct. App. 2003); Brodes, 551 S.E.2d at 759-60 (holding that the
six-person photo lineup of all black males, including one photograph of a man with much lighter skin than
the defendant, did not render the photo array impermissibly suggestive);
88
Brodes, 551 S.E.2d at 760 (citing Karim v. State, 535 S.E.2d 296, 298 (Ga. Ct. App. 2000)).
89
Id. (citing Denegal v. State, 387 S.E.2d 434, 435 (Ga. Ct. App. 1989)); see also Rivers v. State, 484
S.E.2d 519, 523 (Ga. Ct. App. 1997).
90
See Heng v. State, 554 S.E.2d 243, 246 (Ga. Ct. App. 2001) (stating the court has “found photo arrays
or lineups not impermissibly suggestive when the defendant’s clothing differed from the others’ in some
respect, because in those cases, the witnesses had not described their assailants as wearing the clothing the
defendant wore when he was identified”); Jackson v. State, 432 S.E.2d 649, 650 (Ga. Ct. App. 1993)
(holding that “[a]lthough the perpetrator was supposed to have worn a red-and-white striped shirt on the
day of the robbery, the fact that only the photograph from which [defendant] was identified also depicted
someone in a red-and-white striped shirt does not render the pre-indictment photographic array suggestive
where, as here, the victim testified that it was not the same pattern of stripes”); Denegal, 387 S.E.2d at 435
(holding that although defendant “appeared at the physical line-up wearing a tank top and the other five
participants wore t-shirts, the perpetrator was reported to have been wearing a coat and there is no basis for
concluding that the clothing worn by appellant at the physical line-up impermissibly suggested that he was
the perpetrator”); James v. State, 278 S.E.2d 187, 188 (Ga. Ct. App. 1981) (holding that there is “nothing
suggestive in the fact that the [defendant] was wearing military ‘fatigue pants’ [during the lineup],
particularly when [the witness] had no indication that his assailants were in the military service”).
91
Heng, 554 S.E.2d at 246 (citing Miller, 512 S.E.2d at 274). The Heng Court found it was
impermissibly suggestive to put the defendant in the lineup wearing an orange, sleeveless jacket described
by the witnesses as being worn by the gunman. Id.
92
See id. at 246.

83

Procedure 17-9 of the SLEOM, which meets this ABA Best Practice, as a mandatory
internal procedure.
3. Recording Procedures
a. The guidelines should require that, whenever practicable, the police should
videotape or digitally video record lineup procedures, including the witness’s
confidence statements and any statements made to the witness by the police.
b. The guidelines should require that, absent videotaping or digital video
recording, a photograph should be taken of each lineup and a detailed record
made describing with specificity how the entire procedure (from start to finish)
was administered, also noting the appearance of the foils and of the suspect and
the identities of all persons present.

The GLECP and CALEA standards do not specifically require that certified agencies
conducting pre-trial identification procedures video or digitally record the witness’
confidence statement and any law enforcement statements made to witnesses or, in the
absence of video recording, that law enforcement officials should photograph the lineup.
A law enforcement agency complying with the GLECP and CALEA standards, requiring
the agency to establish steps for identifying suspects, could create a guideline that
complies with this best practice.
Furthermore, Standard Operating Procedure 17-9 of the SLEOM states that law
enforcement officials should (1) “ensure that a complete written record and videotape
recording of the lineup proceedings is made and retained,” and (2) “preserve the photo
array, together with full information about the identification process, for future
reference.”93 We were unable, however, to determine to what extent these Standard
Operating Procedures have been adopted as required procedure by individual law
enforcement agencies.
The Georgia Court of Appeals has ruled that the trial court could decide on the
permissibility of a lineup without admitting into evidence a photograph of the entire
lineup as viewed by the victim.94 Although one Georgia case95 does not require
compliance with this ABA Best Practice, we were unable to ascertain whether Georgia
law in general and the relevant GLECP and CALEA standards require full compliance
with this ABA Best Practice, or whether individual law enforcement agencies have
adopted Standard Procedure 17-9 of the SLEOM, which partially meets this ABA Best
Practice, as a mandatory internal procedure.
c. The guidelines should require that, regardless of the fashion in which a lineup is
memorialized, and for all other identification procedures, including

93

SLEOM, supra note 30, at 17-28 to -29.
See Manning v. State, 427 S.E.2d 521, 524 (Ga. Ct. App. 1993) (holding that the trial court did not err
in failing to exclude evidence of the lineup because individual pictures of the participants were entered into
evidence for the court to review).
95
Id.
94

84

photospreads, the police shall, immediately after completing the identification
procedure and in a non-suggestive manner, request witnesses to indicate their
level of confidence in any identification and ensure that the response is
accurately documented.

The GLECP and CALEA standards do not specifically require that certified agencies
conducting pre-trial identification procedures request, in a non-suggestive manner, that
the witness indicate his/her level of confidence in any identification and document that
statement accurately. A law enforcement agency complying with the GLECP and
CALEA standards, requiring the agency to establish steps for identifying suspects, could
create a guideline that complies with this best practice.
A review of Georgia case law indicates at least one instance of a witness signing a form
verifying that s/he could not make a positive identification.96 Additionally, numerous
cases demonstrate witnesses indicating a percentage or general level of confidence in
their identification.97
We were unable to ascertain whether Georgia case law or the relevant GLECP and
CALEA standards require full compliance with this ABA Best Practice.
4. Immediate Post-Lineup or Photospread Procedures
a. The guidelines should require that police and prosecutors should avoid at any
time giving the witness feedback on whether he or she selected the "right
man"—the person believed by law enforcement to be the culprit.

The GLECP and CALEA standards do not specifically require that certified agencies
conducting pre-trial identification procedures avoid giving the witness feedback on
whether s/he selected the proper suspect. A law enforcement agency complying with the
GLECP and CALEA standards, requiring the agency to establish steps for identifying
suspects, could create a guideline that complies with this ABA Best Practice.
Furthermore, Standard Operating Procedure 17-9 states that a law enforcement official in
charge of conducting the lineup should “scrupulously avoid using statements, clues,
casual comments or providing unnecessary or irrelevant information that in any manner
may influence the witnesses' decision-making process or perception,” and in cases of
photographic identification, “[n]ever make suggestive statements that may influence the
judgment or perception of the witness.”98
We were, however, unable to ascertain whether Georgia case law or the relevant GLECP
and CALEA standards require full compliance with this ABA Best Practice, or whether
individual law enforcement agencies have adopted Standard Procedure 17-9 of the

96
97
98

See Lemons v. State, 608 S.E.2d 15, 17 (Ga. Ct. App. 2004).
See supra note 76 and accompanying text.
SLEOM, supra note 30, at 17-28 to -29.

85

SLEOM, which partially meets this ABA Best Practice, as a mandatory internal
procedure.
In conclusion, even though numerous law enforcement agencies should have adopted
written directives to be in compliance with the GLECP and/or CALEA, the GLECP and
CALEA standards do not require agencies to adopt written directives as specific as the
ABA Best Practices require in Recommendation #1. Moreover, we were unable to obtain
the written directives adopted by all law enforcement agencies to assess whether they
comply with Recommendation #1. Furthermore, to the extent that the relevant Standard
Operating Procedures of the SLEOM meet this ABA Best Practice, we were unable to
determine whether individual law enforcement agencies have adopted the SLEOM as
their own internal mandatory procedures. We are, therefore, unable to conclude with
certainty whether the State of Georgia meets the requirements of Recommendation #1.
B. Recommendation #2
Law enforcement officers and prosecutors should receive periodic training on how
to implement the guidelines for conducting lineups and photospreads, as well as
training on non-suggestive techniques for interviewing witnesses.

The POST Council’s basic training course curriculum clearly provides for instruction on
avoiding non-suggestive methods of interviewing witnesses such as leading or specific
questions, and threatening negative consequences for witnesses who fail to fully
cooperate with law enforcement questioning.99 However, the basic training course does
not appear to include any instruction on conducting pre-trial identification procedures.
The GLECP and CALEA standards do not specifically require that certified agencies
conducting pre-trial identification procedures receive periodic training on how to
implement guidelines for such procedures, including training on non-suggestive
techniques for interviewing witnesses. A law enforcement agency complying with the
GLECP and/or CALEA standards, requiring the agency to establish “a written directive
that requires each sworn officer [to] receive annual training on legal updates”100 and “any
other training as prescribed by law,”101 could create a training program that complies with
Recommendation #2. We were, however, unable to sufficiently ascertain whether law
enforcement agencies, certified by the GLECP, CALEA or otherwise, are complying with
this particular Recommendation.
Similar to the training offered to law enforcement officers, the Prosecuting Attorneys’
Council of Georgia offered a training program for prosecutors in Georgia that included

99

See POST C OUNCIL B ASIC TRAINING C OURSE, supra note 15, at 4.5-5 to -8.
GLECP STANDARDS , supra note 49, at 4 (Standard 1.11); see also CALEA S TANDARDS, supra note 47,
at 33-4 (Standard 33.5.1).
101
GLECP STANDARDS , supra note 49, at 4 (Standard 1.11)
100

86

instruction on interviewing witnesses and police officers.102 However, it appears that this
course is not regularly offered and is voluntary. Moreover, we were unable to ascertain
to what extent the course provides training on how to implement guidelines for
conducting pre-trial identification procedures and non-suggestive methods for
interviewing witnesses.
Because we can only conclude with certainty that law enforcement officials are required
to receive basic training on non-suggestive interviewing techniques, the State of Georgia
only partially meets the requirements of Recommendation #2.
C. Recommendation #3
Law enforcement agencies and prosecutors offices should periodically update the
guidelines for conducting lineups and photospreads to incorporate advances in
social scientific research and in the continuing lessons of practical experience.

We were unable to obtain sufficient information to assess whether law enforcement
agencies and prosecutors in Georgia periodically update their guidelines for conducting
pre-trial identifications. Therefore, we were unable to conclude with certainty whether
the State of Georgia meets the requirements of Recommendation #3.
D. Recommendation #4
Videotape the entirety of custodial interrogations of crime suspects at police
precincts, courthouses, detention centers, or other places where suspects are held for
questioning, or, where videotaping is impractical, audiotape the entirety of such
custodial interrogations.

As of September 14, 2005, seven police departments in Georgia—the Atlanta Police
Department, the Cobb County Police Department, the DeKalb County Police
Department, the Fulton County Police Department, the Gwinnett County Police
Department, the Macon Police Department, and the Savannah-Chatham Police
Department—regularly record the entirety of custodial interrogations.103 These police
departments use either audio or video recording equipment to record interviews of
persons under arrest in a police facility from the moment Miranda104 warnings are given

102

See
Prosecuting
Attorneys’
Council
of
Georgia,
PAC
Training,
at
http://www.pacga.org/training/pac.shtml (last visited on Nov. 4, 2005); Prosecuting Attorneys’ Council of
Georgia,
Fundamentals
of
Prosecution
Training
Course,
at
http://www.pacga.org/downloads/training/2005_fundament_pros/announce_&_registr.pdf (last visited on
Nov. 17, 2005).
103
Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, 1 C ENTER ON
WRONGFUL CONVICTIONS S PEC. R EP., at A5 (2004).
104
Miranda v. Arizona, 384 U.S. 436 (1966) (holding that the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use
of procedural safeguards effective to secure the privilege against self-incrimination).

87

until the interview ends. 105 Moreover, a review of Georgia case law indicates that police
departments in two other counties have videotaped custodial interrogations.106
The POST Council’s basic training course, a requirement for all law enforcement
officials in Georgia, requires law enforcement officials to make at least a written
recording of the entirety of an interrogation. The training curriculum only suggests the
“video or audio-taping [of] the entire interview in addition to or in place of professional
stenographic services.”107 The training course does not require or even express a
preference for video or audio recording of the entirety of the interview or interrogation.
Furthermore, Standard Operating Procedure 8-3 of the MLEOM and SLEOM states that
“[w]henever possible, any statement made by the accused should be recorded on either
audio or video tape . . . includ[ing] the accused’s waiver of rights at both the beginning
and end of the tape.”108 We were unable, however, to determine to what extent this
Standard Operating Procedure has been adopted as required procedure by individual law
enforcement agencies.
Although some law enforcement agencies in Georgia videotape or audiotape the entirety
of custodial interrogations, not all appear to be doing so. Additionally, although Standard
Operating Procedure 8-3 of the MLEOM and SLEOM could be construed as meeting this
ABA Best Practice, we are unable to determine whether individual law enforcement
agencies have adopted the MLEOM and/or SLEOM as internal mandatory procedures.
Therefore, the State of Georgia only partially meets the requirements of Recommendation
#4.
E. Recommendation #5
Ensure adequate funding to ensure proper development, implementation, and
updating policies and procedures relating to identifications and interrogations.

We are unable to ascertain whether the State of Georgia provides adequate funding to
ensure the proper development, implementation and updating of procedures for
identifications and interrogations. Therefore, we cannot determine whether the State of
Georgia meets the requirements of Recommendation #5.

105

See Sullivan, supra note 103, at 5, A5. This report, however, does not include departments that
conduct unrecorded interviews followed by recorded confessions or recordings made outside a police
station or lockup, such as at crime scenes or in squad cars. Id. at 5.
106
See Smith v. State, 491 S.E.2d 519, 521 (Ga. Ct. App. 1997) (Clarke County); Sweatman v. State, 352
S.E.2d 796, 797 (Ga. Ct. App. 1987) (Forsyth County).
107
POST C OUNCIL B ASIC TRAINING COURSE , supra note 15, at 4.5-18.
108
MLEOM, supra note 32, at 8-16 (Standard Operating Procedure 8-3); SLEOM, supra note 30, at 8-16
(Standard Operating Procedure 8-3). “Any statement made by the accused” could include the entirety of
the custodial interrogation. MLEOM, supra note 32, at 8-16 (Standard Operating Procedure 8-3); SLEOM,
supra note 30, at 8-16 (Standard Operating Procedure 8-3).

88

F. Recommendation #6
Courts should have the discretion to allow a properly qualified expert to testify both
pre-trial and at trial on the factors affecting eyewitness accuracy.

In light of a new trend among an overwhelming majority of both federal and state courts,
the Georgia Supreme Court has recently held that the “admission of expert testimony
regarding eyewitness identification is in the discretion of the trial court.”109 Specifically,
“where eyewitness identification of the defendant is a key element of the State’s case and
there is no substantial corroboration of that identification by other evidence, trial courts
may not exclude expert testimony without carefully weighing whether the evidence
would assist the jury in assessing the reliability of eyewitness testimony and whether
expert eyewitness testimony is the only effective way to reveal any weakness in an
eyewitness identification.”110 However, “the admission or exclusion of this evidence
‘lies within the sound discretion of the trial court, whose decision will not be disturbed on
appeal absent a clear abuse of discretion.’”111 The State of Georgia, therefore, meets the
requirements of Recommendation #6.
G. Recommendation #7
Whenever there has been an identification of the defendant prior to trial, and
identity is a central issue in a case tried before a jury, courts should use a specific
instruction, tailored to the needs of the individual case, explaining the factors to be
considered in gauging lineup accuracy.

The Georgia Suggested Pattern Jury Instructions in Criminal Cases includes an
instruction that provides juries with factors to consider when determining the reliability
of eyewitness identification.112 The text of the instruction is as follows:
Identity is a question of fact for determination by the jury. It is dependent upon
the credibility of the witness or witnesses offered for this purpose, and you have
the right to consider all of the factors previously charged you regarding credibility
of witnesses.

109

Johnson v. State, 526 S.E.2d 549, 552 (Ga. 2000). Georgia case law previously provided that “[t]he
determination of a witness’ credibility, including the accuracy of eyewitness identification, [was] within the
exclusive province of the jury.” Norris v. State, 376 S.E.2d 653, 654 (Ga. 1989). Thus, Georgia law,
previous to Johnson, stated that expert testimony regarding the credibility and accuracy of eyewitness
identification is generally inadmissible, except when it concerns organic or mental disorders or some
impairment of the mental or physical faculties of the eyewitness. See Jones v. State, 208 S.E.2d 850, 853
(Ga. 1974). Expert testimony regarding eyewitness credibility would, therefore, generally have been
excluded because the subject matter is normally within the scope of the ordinary layman’s knowledge,
which left cross examination as the primary medium to attack the eyewitness’s credibility. Id.; cf. Loomis
v. State, 51 S.E.2d 33 (Ga. 1948); Goodwyn v. Goodwyn, 20 Ga. 600 (Ga. 1856).
110
Johnson, 526 S.E.2d at 552-53.
111
Id. at 553.
112
GA. SUGGESTED PATTERN JURY INSTRUCTIONS, VOL. II (CRIMINAL C ASES) § 206.00(1) (3d ed. 2003).

89

Some, but not all, of the factors you may consider, in assessing reliability of
identification, are:
a. The opportunity of the witness to view the alleged perpetrator at the time
of the alleged incident;
b. The witness's degree of attention toward the alleged perpetrator at the time
of the alleged incident;
c. The level of certainty shown by the witness about his/her identification;
d. The possibility of mistaken identity;
e. Whether the witness's identification may have been influenced by factors
other than the view that the witness claimed to have; [and]
f. Whether the witness, on any prior occasion, did not identify the defendant
in this case as the alleged perpetrator.113
Since the most recent publication of the Georgia Suggested Pattern Jury Instructions in
Criminal Cases, the Georgia Supreme Court has held that trial courts should not instruct
the jury that they should consider “[t]he level of certainty shown by the witness about
his/her identification” as a factor in determining the reliability of an eyewitness
identification.114 The Court reasoned that “the idea that a witness’s certainty in his or her
identification of a person as a perpetrator reflected the witness’s accuracy has been ‘flatly
contradicted by well-respected and essentially unchallenged empirical studies,’” and thus
should not be given with the pattern jury instruction.115
The Georgia Supreme Court has found that this pattern jury instruction, excluding the
factor pertaining to the level of certainty shown by the witness, “should be given when
testimony warrants,”116 such as when there has been an identification prior to trial and the
identity of the perpetrator is a central issue in the jury trial.117
The State of Georgia, therefore, meets the requirements of Recommendation #7, because
it provides a pattern jury instruction that should be given to the jury to instruct on the
factors to consider when determining the reliability and accuracy of an eyewitness
identification.

113

Id.
See Brodes v. State, 614 S.E.2d 766, 767 n.1, 771 (Ga. 2005). However, the Georgia Court of Appeals
has found that the error in giving the “level of certainty” factor was harmless where the defendant was also
identified by eyewitnesses who met him before the commission of the crime. See Dunson v. State, 2005
WL 2248277, *2 (Ga. Ct. App. Sept. 16, 2005) (holding that given the “level of certainty” factor was harmless
because, unlike Brodes where the eyewitnesses who made the positive identifications were strangers to the
defendant, the eyewitnesses in the instant case had met him and conversed with him before the robbery). The
Georgia Court of Appeals has also found that a defendant is estopped from challenging the giving of the “level of
certainty” factor if the defendant requested that the factor be given within the instruction. Morton v. State, 2005
WL 3072720, *2 (Ga. Ct. App. Nov. 17, 2005).
115
Brodes, 614 S.E.2d at 770-71 (citing State v. Long, 721 P.2d 483, 491 (Utah 1986)).
116
Id. at 769 n.6.
117
Id. (citing to Robinson v. State, 754 A.2d 1153 (N.J. 2000)).
114

90

CHAPTER FOUR
CRIME LABORATORIES AND MEDICAL EXAMINER OFFICES
INTRODUCTION TO THE ISSUE
With the increased reliance on forensic evidence—including DNA, ballistics,
fingerprinting, handwriting comparisons, and hair samples—it is vital that crime
laboratories and medical examiner offices, as well as forensic and medical examiners,
provide expert, accurate results.
Despite the increased reliance on forensic evidence and those who collect and analyze it,
the validity and reliability of work done by unaccredited and accredited crime
laboratories have increasingly been called into serious question.1 While the majority of
crime laboratories and medical examiner offices, along with the people who work in
them, strive to do their work accurately and impartially, a troubling number of laboratory
technicians have been accused and/or convicted of failing properly to analyze blood and
hair samples, reporting results for tests that were never conducted, misinterpreting test
results in an effort to aid the prosecution, testifying falsely for the prosecution, failing to
preserve DNA samples, or destroying DNA or other biological evidence. This has
prompted internal investigations into the practices of several prominent crime
laboratories and technicians, independent audits of crime laboratories, the re-examination
of hundreds of cases, and the conviction of many innocent individuals.
The deficiencies in crime laboratories and the misconduct and incompetence of
technicians have been attributed to lack of proper training and supervision, the lack of
testing procedures or the failure to follow procedures, and inadequate funding.
In order to take full advantage of the power of forensic science to aid in the search for
truth and to minimize its enormous potential to contribute to wrongful convictions, crime
labs and medical examiner offices must be accredited, examiners and lab technicians
must be certified, procedures must be standardized and published, and adequate funding
must be provided.

1

See Janine Arvizu, Shattering The Myth: Forensic Laboratories, 24 CHAMPION 18 (2000); Paul C.
Giannelli, The Abuse Of Scientific Evidence In Criminal Cases: The Need For Independent Crime
Laboratories, 4 VA. J. SOC. P OL 'Y & L. 439 (1997); Frederic Whitehurst, Forensic Crime Labs:
Scrutinizing Results, Audits & Accreditation—Part 1, 28 CHAMPION 6 (2004); Frederic Whitehurst,
Forensic Crime Labs: Scrutinizing Results, Audits & Accreditation—Part 2, 28 CHAMPION 16 (2004).

91

I. FACTUAL DISCUSSION
In 1997, the Georgia Legislature adopted the “Georgia Forensic Science Act of 1997”
(the Act) to consolidate and revise Georgia’s laws pertaining to the testing of evidence by
the Division of Forensic Sciences of the Georgia Bureau of Investigation (the Division)
and to establish an Office of Chief Medical Examiner within the Division. 2 Under the
Act, the Division’s responsibilities include but are not limited to providing a statewide
system of crime laboratories3 and establishing “written standards and procedures for the
administration of forensic testing,”4 which may include “standards for the identification,
collection, transportation, and analysis of forensic evidence.”5 All “procedures,
guidelines, standards, and methods for the collection, preservation, or testing of evidence
adopted by the Division” are exempt from the “Georgia Administrative Procedure Act,”
which means that the standards do not have to be “published or made available for public
inspection” in order to become effective.6
A. Crime Laboratories
1. The Division’s Statewide System of Crime Laboratories
The Division’s statewide system of crime laboratories is “dedicated to conducting
forensic analysis of evidence submitted to the laboratory by law enforcement agencies,
prosecuting attorneys, coroners, and medical examiners.”7 The Division also facilitates
“independent testing or analysis of evidence within the possession, custody, or control of
the Division” for purposes of discovery in criminal cases.8
The Division’s statewide system of crime laboratories includes a headquarters laboratory
in Decatur, Georgia (Headquarters Laboratory)9 and seven regional laboratories in the
following locations:
1.
2.
3.
4.

Augusta (Eastern Regional Crime Laboratory);
Cleveland (Northeast Regional Crime Laboratory);
Midland (Columbus) (Western Regional Crime Laboratory);
Dry Branch (Macon) (Central Regional Crime Laboratory);

2

1997 Ga. Laws 439.
O.C.G.A. § 35-3-151(1) (2004).
4
O.C.G.A. § 35-3-154(1) (2004).
5
O.C.G.A. § 35-3-151(3) (2004).
6
O.C.G.A. § 35-3-155 (2004); see also O.C.G.A. § 50-13-03(b) (2004).
7
O.C.G.A. § 35-3-151(1) (2004).
8
O.C.G.A. § 35-3-151(4) (2004).
9
The Headquarters Laboratory is divided into eleven sections: (1) Administrative; (2) Trace Evidence;
(3) Firearms; (4) Chemistry; (5) Implied Consent (Alcohol Testing); (6) Latent Print; (7) Pathology; (8)
Questioned Documents; (9) Forensic Biology (DNA); (10) Toxicology; and (11) Photography. See
Georgia Bureau of Investigation, Division of Forensic Services, at www.ganet.org/gbi/fordiv.html (last
visited on Oct. 5, 2005).
3

92

5. Moultrie (Southwestern Regional Crime Laboratory);
6. Savannah (Coastal Regional Crime Laboratory); and
7. Trion (Summerville) (Northwestern Regional Crime Laboratory).10
The Headquarters Laboratory is divided into eleven specialized sections,11 which together
provide a wide range of laboratory services, including: Alcohol Proof, Automated
Fingerprint Identification System (AFIS), Autopsy, Blood Alcohol, Blood Identification,
CODIS, DNA Profiling, Drugs, Filament, Firearms, Fire Debris, Fibers, Footwear and
Tire Impressions, Fractured Materials, Glass, Hairs, IBIS, Inks, Intoxilyzer Training,
Latent Prints, Machine Impressions, Paints and Coatings, Paper, Plastics/Polymers,
Photography, Questioned Documents, Saliva Identification, Semen Identification,
Toolmarks, and Toxicology.12
The laboratory services provided at the seven regional laboratories are not as expansive
as those provided at the Headquarters Laboratory and vary from laboratory to laboratory.
Each of the seven regional laboratories provide the following services:
1.
2.
3.
4.
5.
6.
7.

Eastern Regional Crime Laboratory - Alcohol Proof, Blood Alcohol,
Drugs, and Toxicology;
Northeast Regional Crime Laboratory - Drugs;
Western Regional Crime Laboratory - Drugs, Fire Debris, Footwear and
Tire Impressions, Firearms, and Toolmarks;
Central Regional Crime Laboratory - Alcohol Proof, Blood Alcohol,
Drugs, Toxicology, and Firearms;
Southwestern Regional Crime Laboratory - Alcohol Proof, Blood Alcohol,
Drugs, and Toxicology;
Coastal Regional Crime Laboratory -Alcohol Proof, Blood Alcohol, DNA
Analysis, Drugs, Fire Debris, and Toxicology;
Northwestern Regional Crime Laboratory - Alcohol Proof, Blood Alcohol,
Drugs, Firearms, Toolmarks, and Toxicology.13

All reports of the methods and findings of any examination or analysis conducted by an
employee of any of the Division’s laboratories, which are authenticated under oath, are
prima facie evidence in court proceedings of the facts contained therein.14 Attached to
the report must be an affidavit of the employee stating: (1) that he or she is certified to
perform the requisite analysis or examination; (2) his or her experience as a chemist or

10

See id.; Georgia Bureau of Investigation, Division of Forensic Services, Laboratory Services and
Requirements for Submitting Evidence, at http://www.ganet.org/gbi/labmanual.html (last visited on Oct. 5,
2005).
11
Georgia
Bureau
of
Investigation,
Division
of
Forensic
Sciences,
at
http://www.ganet.org/gbi/fordiv.html (last visited on Oct. 5, 2005).
12
Georgia Bureau of Investigation, Division of Forensic Services, Laboratory Services and Requirements
for Submitting Evidence, at http://www.ganet.org/gbi/labmanual.html (last visited on Oct. 5, 2005).
13
See id.
14
O.C.G.A. § 35-3-154.1(a) (2004).

93

analyst and as an expert witness testifying in court; and (3) that he or she conducted the
tests shown on the report using procedures approved by the Georgia Bureau of
Investigation and the report accurately reflects his or her opinions of the results.15
Because the procedures for the collection, preservation, or testing of evidence adopted by
the Division do not have to be “published or made available for public inspection,” it is
instructive to review the requirements of the accreditation programs through which some
of the Division laboratories have obtained accreditation to understand the procedures,
guidelines, standards, and methods used by the Division laboratories.16
2. Crime Laboratory Accreditation
The Division’s Crime Lab Annual Report 2004 states that the Division “has been
accredited by the American Society of Crime Laboratory Directors/Laboratory
Accreditation Board (ASCLD/LAB) since 1999 and the ISO 17025 General
Requirements for the Competency of Testing and Calibration Laboratories since 2001.”17
a. ASCLD/LAB Accreditation
“The Crime Laboratory Accreditation Program of the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) is a voluntary
program in which any crime laboratory may participate to demonstrate that its
management, operations, personnel, procedures, equipment, physical plant, security, and
personnel safety procedures meet established standards.”18 According to the
ASCLD/LAB website, seven of the eight Division laboratories are currently accredited
through the ASCLD/LAB program, including: (1) Headquarters Crime Laboratory, (2)
Central Regional Crime Laboratory, (3) Coastal Regional Crime Laboratory, (4) Eastern
Regional Crime Laboratory, (5) Northwestern Regional Crime Laboratory, (6)
Southwestern Regional Crime Laboratory, and (7) Western Regional Crime Laboratory.19

15

O.C.G.A. § 35-3-154.1(b) (2004).
See, e.g., AM. S OC’Y OF C RIME L AB. DIRS., LAB. ACCREDITATION BD., LABORATORY ACCREDITATION
BOARD 2003 MANUAL 3, app. 1 [hereinafter ASCLD/LAB 2003 MANUAL] (on file with author); NATIONAL
FORENSIC S CIENCE TECHNOLOGY C ENTER, F ORENSIC QUALITY S ERVICES-I NTERNATIONAL DIVISION ,
ISO/IEC 17025: GENERAL R EQUIREMENTS FOR THE COMPETENCE OF T ESTING AND C ALIBRATION
LABORATORIES 1 (1999) [hereinafter FQS-I, ISO/IEC 17025 GENERAL R EQUIREMENTS] (on file with
author). It should be noted that laboratories receiving federal funding must also comply with the Federal
Bureau of Investigation’s DNA Quality Assurance Standards, requiring periodic external audits to ensure
compliance with the required quality assurance standards. See 42 U.S.C. § 14131(a)(1) (2005); DNA
Advisory Board, Quality Assurance Standards for Forensic DNA Testing Laboratories, 2 FORENSICS
SCI. COMM. 3 (July 2000). We did not obtain sufficient information to state whether any Division
laboratories are currently receiving federal funding.
17
See GA. B UREAU OF I NVESTIGATION, D IVISION OF FORENSIC S ERVICES, CRIME LAB A NNUAL R EPORT
2004, at http://www.ganet.org/gbi/04annual/DOFS_FY04.pdf (last visited on Oct. 5, 2005).
18
American
Society
of
Crime
Laboratory
Directors,
Accreditation,
at
http://www.ascld.org/accreditation.html (last visited on Oct. 5, 2005).
19
American Society of Crime Laboratory Directors, Laboratories Accredited by ASCLS/LAB, at
http://www.ascld-lab.org/legacy/aslablegacylaboratories.html#GA (last visited on Oct. 5, 2005).
16

94

i. Application Process for ASCLD/LAB Accreditation
To obtain accreditation by the ASCLD/LAB, the laboratory must submit an “Application
for Accreditation,” documenting the qualifications of staff, laboratory quality manual(s),
procedures for handling and preserving evidence, procedures on case records, and
security procedures.20 In addition to the application, the laboratory must submit a “Grade
Computation/Summation of Criteria Ratings,” which is based on the laboratory’s selfevaluation of whether it is in compliance with all of the criteria contained in the
ASCLD/LAB Laboratory Accreditation Board Manual.21
ii. ASCLD/LAB Accreditation Standards and Criteria
The ASCLD/LAB Laboratory Accreditation Board 2003 Manual (the Manual) contains
various standards and criteria, each of which has been assigned a rating of Essential,
Important, or Desirable.22 In order to obtain accreditation through ASCLD/LAB, “[the]
laboratory must achieve not less than 100% of the Essential,23 75% of the Important,24
and 50% of the Desirable25 criteria.” 26 Some of the Essential criteria contained in the
Manual require as follows:
1.

2.
3.
4.
5.

clearly written and well understood procedures for handling and
preserving the integrity of evidence, laboratory security, preparation,
storage, security and disposition of case records and reports, and for
maintenance and calibration of equipment and instruments;27
a training program to develop the technical skills of employees in each
applicable functional area;28
a chain of custody record that provides a comprehensive, documented
history of evidence transfer over which the laboratory has control;29
the proper storage of evidence to protect the integrity of the evidence;30
a comprehensive quality manual;31

20

ASCLD/LAB 2003 MANUAL, supra note 16, at 3, app. 1.
Id. at 3.
22
Id. at 2.
23
The Manual defines “Essential” as “[s]tandards which directly affect and have fundamental impact on
the work product of the laboratory or the integrity of the evidence.” Id.
24
The Manual defines “Important” as “[s]tandards which are considered to be key indicators of the
overall quality of the laboratory but may not directly affect the work product nor the integrity of the
evidence.” Id.
25
The Manual defines “Desirable” as “[s]tandards which have the least effect on the work product or the
integrity of the evidence but which nevertheless enhance the professionalism of the laboratory.” Id.
26
Id. (emphasis omitted).
27
Id. at 14.
28
Id. at 19.
29
Id. at 20.
30
Id. at 21.
31
Id. at 23.
21

95

6.
7.
8.
9.
10.

the performance of an annual review of the laboratory’s quality system;32
the use of scientific procedures that are generally accepted in the field or
supported by data gathered and recorded in a scientific manner;33
the performance and documentation of administrative reviews of all
reports issued;34
the monitoring of the testimony of each examiner at least annually;35 and
a documented program of proficiency testing, measuring examiners’
capabilities and the reliability of analytical results.36

The Manual also contains Essential criteria on personnel qualifications, requiring each
examiner to have a specialized baccalaureate degree relevant to his/her crime laboratory
specialty, experience/training commensurate with the examinations and testimony
provided, and an understanding of the necessary instruments and methods and
procedures.37 Additionally, the examiners must successfully complete a competency test
prior to assuming casework and successfully complete annual proficiency tests.38
Once the laboratory has assessed whether it is in compliance with the ASCLD/LAB
criteria and submitted a complete application, the ASCLD/LAB inspection team, headed
by a team captain, will arrange an on-site inspection of the laboratory.39
iii. On-Site Inspection, Decisions on Accreditation, and the Duration of
Accreditation
The on-site inspection consists of interviewing analysts and reviewing a sample of case
files, including all notes and data, generated by each analyst.40 The inspection team will
also interview all trainees to evaluate the laboratory’s training program.41 At the
conclusion of the inspection, the inspection team will meet with the laboratory director to
review the findings and discuss any deficiencies.42
The inspection team must provide a draft inspection report to the Executive Director of
the ASCLD/LAB, who will then distribute the report to the “audit committee” consisting
of a member of the ASCLD/LAB Board, the Executive Director, at least three staff
inspectors, and the inspection team captain.43 Decisions on accreditation must be made

32
33
34
35
36
37
38
39
40
41
42
43

Id. at 27.
Id. at 27.
Id. at 31.
Id. at 32.
Id. at 33-34.
Id. at 38-45.
Id.
Id. at 5.
Id.
Id. at 6.
Id.
Id.

96

within twelve months of “the date of the laboratory’s first notification of an audit
committee’s consideration of the draft inspection report.”44 During that time period, the
laboratory may correct any deficiencies identified by the inspection team during the onsite inspection.45
If the ASCLD/LAB Board grants accreditation to the laboratory, it will be effective for
five years “provided that the laboratory continues to meet ASCLD/LAB standards,
including completion of the Annual Accreditation Audit Report and participation in
prescribed proficiency testing programs.”46 After the five-year time period, the
laboratory must apply for reaccreditation and undergo another on-site inspection.47
In addition to ASCLD/LAB accreditation, it appears that some Division laboratories have
also obtained ISO/IEC 17025 accreditation.
b. ISO/IEC 17025 Accreditation
ISO/IEC 17025 “specifies the general requirements for the competence to carry out tests
and/or calibrations, including sampling. It covers testing and calibration performed using
standard methods, non-standard methods, and laboratory-developed methods.”48 Seven
of the eight Division laboratories currently possess ISO/IEC 17025 accreditation through
the Forensic Quality Services-International Division of the National Forensic Science
Technology Center (FQS-I).49 The seven laboratories include: (1) Headquarters Crime
Laboratory, (2) Eastern Regional Crime Laboratory, (3) Western Regional Crime
Laboratory, (4) Central Regional Crime Laboratory, (5) Southwestern Regional Crime
Laboratory, (6) Coastal Regional Crime Laboratory, and (7) Northwestern Regional
Crime Laboratory, but the scope of the ISO/IEC 17025 accreditation granted by FQS-I to
each laboratory varies from laboratory to laboratory.50

44

Id. at 7.
Id.
46
Id. at 1.
47
Id.
48
FSQ-I, ISO/IEC 17025 GENERAL R EQUIREMENTS, supra note 16, at 1.
49
National Forensic Science Technology Center, Forensic Quality Services-International Division,
ISO/IEC Accredited Laboratories, at http://www.forquality.org/accreditation.htm#atlanta (last visited on
Oct. 5, 2005).
50
Id. For a description of the scope of the accreditation granted to each Division laboratory, see Georgia
Bureau
of
Investigation,
ISO/IEC
17025
Scope
of
Accreditation,
at
http://www.forquality.org/Accred%20Docs/GBI/GBI_HQ/GBI%20HQ%20SCOPE%20wjt-4.pdf
(Headquarters Laboratory) (last visited on Oct. 5, 2005); Georgia Bureau of Investigation, ISO/IEC 17025
Scope
of
Accreditation,
at
http://www.forquality.org/Accred%20Docs/GBI/GBI_Eastern/GBI%20Eastern%20_Augusta_%20SCOPE
%20wjt-4.pdf (Eastern Regional Laboratory) (last visited on Oct. 5, 2005); Georgia Bureau of
Investigation,
ISO/IEC
17025
Scope
of
Accreditation,
at
http://www.forquality.org/Accred%20Docs/GBI/GBI_Western/Western-Columbus.pdf (Western Regional
Laboratory) (last visited on Oct. 5, 2005); Georgia Bureau of Investigation, ISO/IEC 17025 Scope of
Accreditation,
at
http://www.forquality.org/Accred%20Docs/GBI/GBI_Central/GBI%20Central%20_Macon_%20SCOPE%
45

97

i. Applying for ISO/IEC 17025 Accreditation through FQS-I
Before applying for accreditation, the laboratory must first “participate in one proficiency
test or interlaboratory comparison”51 and ensure that it meets the “General Requirements
for Accreditation”52 and any applicable “Field Specific Standards.”53 To apply for
accreditation, the laboratory must submit an “Application for Accreditation by FQS-I,”54
certifying that it will comply with the requirements for accreditation and provide any
information needed for the evaluation, including but not limited to: (1) definition of the
materials and products tested, methods used and tests performed; (2) a copy of the
laboratory’s quality manual; and (3) the primary function of the laboratory.55
Once the application has been submitted, FQS-I will appoint assessors to evaluate all of
the materials collected from the laboratory and to conduct an assessment of the
laboratory.56 In order for the laboratory to be approved for accreditation, the laboratory
must satisfy all of the Management and Technical Requirements of ISO/IEC 17025, as

20wjt-4.pdf (Central Regional Laboratory) (last visited on Oct. 5, 2005); Georgia Bureau of Investigation,
ISO/IEC
17025
Scope
of
Accreditation,
at
http://www.forquality.org/Accred%20Docs/GBI/GBI_Southwest/GBI%20Southwestern%20_Moultrie_%2
0SCOPE%20wjt-4.pdf (Southwestern Regional Laboratory) (last visited on Oct. 5, 2005); Georgia Bureau
of
Investigation,
ISO/IEC
17025
Scope
of
Accreditation,
at
http://www.forquality.org/Accred%20Docs/GBI/GBI_Coastal/GBI%20Coastal%20_Savannah_%20SCOP
E%20wjt-4.pdf (Coastal Regional Laboratory) (last visited on Oct. 5, 2005); Georgia Bureau of
Investigation,
ISO/IEC
17025
Scope
of
Accreditation,
at
http://www.forquality.org/Accred%20Docs/GBI/GBI_Northwest/GBI%20Northwestern%20_Summerville
_%20SCOPE%20wjt-4.pdf (Northwestern Regional Laboratory) (last visited on Oct. 5, 2005).
51
NATIONAL F ORENSIC S CIENCE TECHNOLOGY CENTER, FORENSIC QUALITY SERVICES -INTERNATIONAL
DIVISION, G ENERAL REQUIREMENTS FOR ACCREDITATION 5 [hereinafter FQS-I, ISO/IEC 17025
ACCREDITATION S TANDARDS ], at http://www.forquality.org/FQS-I%20Acc%20Docs/GRA-FQS-I-0504.pdf (last visited on Oct. 5, 2005). The laboratory must provide FQS-I with the following information
regarding the proficiency testing program: (1) details of the program, (2) procedures for establishment of
assigned values, (3) instructions to participants, (4) statistical treatment of data, (5) final report from
selected proficiency tests, and (6) what is considered satisfactory performance in the program. Id.
52
Id. at 3.
53
The General Requirements for Accreditation provides that some “individual laboratory accreditation
programs may also have Field Specific Criteria that provide interpretation of Parts 4 and or 5, and include
additional requirements.” See id. at 9. It appears that the Field Specific Criteria adopted by FQS-I refer to
laboratories conducting forensic testing in general (FRA-1) and those that conduct forensic testing of DNA
evidence.
See FQS-I ISO ACCREDITATION S ERVS., FRA-1, at http://www.forquality.org/FQSI%20Acc%20Docs/FQSI-FRA-1.pdf (last visited on Oct. 5, 2005); FQS-I ISO A CCREDITATION S ERVS.,
FRA-2, at http://www.forquality.org/FQS-I%20Acc%20Docs/FRA2_0305.pdf (last visited on Oct. 5,
2005).
54
FQS-I, ISO/IEC 17025 A CCREDITATION STANDARDS , supra note 49, at 3; see also FQS-I ISO
ACCREDITATION SERVS ., APPLICATION FOR ACCREDITATION BY FQS-I, at http://www.forquality.org/FQSI%20Acc%20Docs/FQS-I%20Applicatiojn%205-04.pdf (last visited on Oct. 5, 2005).
55
FQS-I ISO ACCREDITATION SERVS ., APPLICATION FOR ACCREDITATION BY FQS-I, at
http://www.forquality.org/FQS-I%20Acc%20Docs/FQS-I%20Applicatiojn%205-04.pdf (last visited on
Oct. 5, 2005).
56
FQS-I, ISO/IEC 17025 ACCREDITATION S TANDARDS, supra note 51, at 3.

98

published in the “General Requirements for Accreditation,” any applicable “Field
Specific Standards,”57 and the applicable requirements of the Forensic Requirements for
Accreditation Guidelines.58
ii. Management and Technical Requirements of ISO/IEC 17025
The Management and Technical Requirements of ISO/IEC 17025 are similar to the
requirements of the ASCLD/LAB accreditation program. For example, ISO/IEC 17025
requires the laboratory to have a quality manual,59 a training program that is relevant to
present and anticipated tasks,60 and laboratory personnel who are “qualified on the basis
of appropriate education, training, experience, and/or demonstrated skills.”61 But
ISO/IEC 17025 also includes extensive criteria governing appropriate testing and
calibration methods.62
iii. Decisions on ISO/IEC 17025 Accreditation and the Duration of
Accreditation
If the laboratory meets the Management and Technical Requirements of ISO/IEC 17025,
as published in the “General Requirements for Accreditation,” all applicable “Field
Specific Standards,” and the applicable requirements of the Forensic Requirements for
Accreditation Guidelines and is approved for accreditation, then the laboratory will be
granted a certificate of accreditation for a two-year period,63 which will be accompanied
by a “Scope Document,” detailing the tests, or types of tests, for which accreditation has
been granted.64
To maintain accreditation, the laboratory must continue to comply with the “standards as
described in its certificate of accreditation and demonstrated by an agreed system of
monitoring” (e.g. review of proficiency test results and internal audit reports).65 After
two years, the laboratory must apply for reaccredidation.66

57

See supra note 53 and the accompanying text.
FSQ-I
Programs,
ISO/IEC
17025
Accreditation
Services,
at
http://www.forquality.org/accreditation.htm (last visited on Oct. 5, 2005); FQS-I, ISO/IEC 17025
ACCREDITATION S TANDARDS, supra note 51, at 4. It appears that the Forensic Requirements for
Accreditation Guidelines can be found at FSQ-I Programs, ISO/IEC 17025 Accreditation Services, at
http://www.forquality.org/accreditation.htm#atlanta (last visited on Oct. 5, 2005) (FRAPs 1 through 6).
59
FQS-I, ISO/IEC 17025 ACCREDITATION S TANDARDS, supra note 51, at 11.
60
Id. at 24.
61
Id.
62
Id. at 26-31.
63
Id. at 3.
64
See, e.g., Georgia Bureau of Investigation, ISO/IEC 17025 Scope of Accreditation, at
http://www.forquality.org/Accred%20Docs/GBI/GBI_HQ/GBI%20HQ%20SCOPE%20wjt-4.pdf
(Headquarters Laboratory) (last visited on Oct. 5, 2005).
65
FQS-I, ISO/IEC 17025 ACCREDITATION S TANDARDS, supra note 51, at 2.
66
Id. at 5.
58

99

B. Medical Examiner Offices
1. The Office of the Chief Medical Examiner and the Regional Medical
Examiner Offices
The State of Georgia’s Office of Chief Medical Examiner is housed within the Division
of Forensic Sciences of the Georgia Bureau of Investigation at the “Headquarters Medical
Examiner Facility” in Decatur, Georgia.67 The Chief Medical Examiner is appointed by
the Director of the Georgia Bureau of Investigation (GBI) and employed by the GBI.68
To be eligible for the position of Chief Medical Examiner, the individual must be a
pathologist certified in forensic pathology by the American Board of Pathology.69
The Chief Medical Examiner’s responsibilities include, but are not limited to:
1.
2.
3.
4.
5.

6.
7.

establishing and overseeing death investigation regions;
establishing policies concerning requirements for appointment of regional
medical examiners;
appointing regional medical examiners;
employing forensic consultants and independent contractors;
organizing and conducting regular educational sessions as may be needed
for medical examiners and coroners in the state in cooperation with the
Georgia Coroner’s Training Council and the Georgia Police Academy;
maintaining permanent death investigation records; and
establishing death investigation guidelines for coroners and medical
examiners.70

To be appointed by the Chief Medical Examiner as a regional medical examiner, the
individual must be a pathologist.71 All regional medical examiners are employed by the
GBI and work at one of the five Regional Medical Examiner Offices.72
2. Coroner’s Offices and County Medical Examiner Offices
In addition to the Office of the Chief Medical Examiner and the Regional Medical
Examiner Offices, a coroner’s office exists in each county except in counties in which the
coroner’s office has been abolished and replaced with a county medical examiner

67

O.C.G.A. § 35-3-153(a) (2004); National Association of Medical Examiners, Associate Medical
Examiner Positions Job Announcement (on file with author).
68
O.C.G.A. § 35-3-153(b) (2004); O.C.G.A. § 45-16-21(13) (2004).
69
O.C.G.A. § 35-3-153(b) (2004). For a list of the American Board of Pathology requirements for
certification and re-certification, see American Board of Pathology, Requirements for Primary and
Subspecialty Certifications, at http://www.abpath.org/ReqForCert.htm (last visited on Oct. 5, 2005).
70
O.C.G.A. § 35-3-153(c) (2004).
71
O.C.G.A. § 45-16-21(13) (2004).
72
National Association of Medical Examiners, Associate Medical Examiner Positions Job
Announcement (on file with author); O.C.G.A. § 45-16-21(13) (2004).

100

office.73 The qualification requirements for the two positions vary, but the powers and
responsibilities associated with each position are similar.
a. Qualification Requirements for Coroners and County Medical Examiners
All coroners are elected officials who hold office for four years. 74 To be eligible for the
office of the county coroner, the individual must meet the following qualifications:
1.
2.

3.
4.
5.
6.

7.

Be a citizen of the United States;
Be a resident of the county in which s/he seeks the office of coroner for at
least two years prior to his/her qualifying for the election to the office and
remain a resident of such county during his/her term of office;
Be a registered voter;
Have attained the age of 25 years prior to the date of the general primary
in the year s/he qualifies for the election to the office;
Have obtained a high school diploma or its recognized equivalent;
Have not been convicted of a felony offense or any offense involving
moral turpitude contrary to the laws of Georgia, any other state, or the
United States; and
Have successfully completed the next scheduled class no longer than 180
days after such person’s election or appointment a basic training course
provided by the Georgia Police Academy.75

Additionally, coroners, as well as all deputy coroners,76 are required to take a training
course every year by the Georgia Coroner’s Training Council77 to maintain the status of a
certified coroner.78
Where the county has abolished the county coroner office and replaced it with an office
of the medical examiner, the governing authority of that county must appoint a medical
examiner who will serve at the pleasure of the governing authority.79 To be eligible for
the office of medical examiner, the individual must:
1.

Have a doctor of medicine degree and be licensed to practice medicine
under the provisions of Chapter 34 of Title 43;

73

O.C.G.A. § 45-16-80 (2004).
O.C.G.A. § 45-16-1(a) (2004).
75
O.C.G.A. § 45-16-1(b)(1) (2004).
76
O.C.G.A. § 45-16-7(a), (b) (2004) (noting “[n]o person shall be eligible to hold office of deputy
coroner unless he or she holds a high school diploma or its recognized equivalent”).
77
For a description of the composition of the Georgia Coroner’s Training Council, see O.C.G.A. § 4516-62
(2004),
and
Georgia
Coroner’s
Association,
Training
Council,
at
http://www.georgiacoronersassoc.org/trainingco.html (last visited on Oct. 5, 2005).
78
O.C.G.A. §§ 45-16-6, -66 (2004) (noting that the training course should not be less than 16 hours per
year).
79
O.C.G.A. § 45-16-80(e) (2004).
74

101

2.
3.

Be eligible for certification by the American Board of Pathology; and
Have at least one year of medico-legal training or one year of active
experience in a scientific field in which legal or judicial procedures are
involved at the county, state, or federal level.80

The governing authority of the county may initially waive requirements #2-3 for any
individual, but such waiver may not extend beyond one year.81
b. Powers and Duties of the Coroner and County Medical Examiner
In counties that have replaced the office of the coroner with the office of the medical
examiner, the county medical examiner will possess all of the powers and responsibilities
traditionally delegated to the coroner, except the county medical examiner will not have
the right to “summon and impanel a jury to hold inquests.”82 “Any coroner or county
medical examiner may delegate to a local medical examiner,83 forensic consultant,84 or
medical examiner’s investigator85 the power to perform those duties of such coroner or
medical examiner . . . if the person to whom such power is thus delegated meets the
applicable requirements . . . for the performance of such duties.” 86
Among the coroner’s or county medical examiner’s responsibilities is ordering a medical
examiner’s inquiry into the death87 of any person who died (1) as a result of violence; (2)
by suicide or casualty; (3) suddenly when in apparent good health; (4) when unattended
by a physician; (5) in any suspicious or unusual manner, with particular attention to those
person 16 years of age and under; (6) after birth but before seven years of age if the death
is unexplained; (7) as a result of an execution carried out pursuant to the imposition of the
death penalty; (8) while an inmate of a state hospital or a state county, or city penal

80

O.C.G.A. § 45-16-80(c) (2004); see also O.C.G.A. § 45-16-80(i) (2004) (noting that the appointed
county medical examiner is not required to meet any county residency requirements).
81
O.C.G.A. § 45-16-80(d) (2004).
82
O.C.G.A. § 45-16-80(f), (g) (2004); see also O.C.G.A. § 45-16-21(6) (2004) (defining “inquest” as “an
official judicial inquiry before a coroner and coroner’s jury for the purpose of determining the cause of
death”); O.C.G.A. § 45-16-33 (2004).
83
A “local medical examiner” must be “a licensed physician appointed by the state medical examiner to
perform scene investigations, external examinations, limited dissections, autopsies, or any combinations of
such duties.” See O.C.G.A. § 45-16-23(b) (2004).
84
A “forensic consultant” must be “an expert in a field of forensic science, including but not limited to
odontology or anthropology, appointed and authorized by the state medical examiner to examine human
remains and evidence under the medical examiner’s jurisdiction.” See O.C.G.A. § 45-16-23(c) (2004).
85
A “medical examiner’s investigator” must be “a person employed by a medical examiner to perform
duties of such medical examiner with the same authority as the medical examiner while at the scene of
death and during subsequent investigation, except that no medical examiner’s investigator is authorized to
make any arrest or perform official external examinations, limited dissections, or autopsies.” See O.C.G.A.
§ 45-16-23(d) (2004).
86
O.C.G.A. § 45-16-23(a) (2004).
87
O.C.G.A. § 45-16-24(b) (2004).

102

institution; or (9) after having been admitted to a hospital in an unconscious state and
without regaining consciousness within 24 hours of admission.88
The medical examiner’s inquiry must be conducted by a medical examiner, which
includes the Chief Medical Examiner, a regional medical examiner, a county medical
examiner, a local medical examiner, or any person who is employed by the state and
appointed as a medical examiner as of December 1, 1989.89 The inquiry may include a
scene investigation, an external examination, a limited dissection, an autopsy, or any
combination thereof.90 But, the inquiry must be reduced to writing91 and the medical
examiner and coroner must file with the Director of the Division a report of each medical
examiner’s inquiry and coroner’s investigation. 92 If a report indicates a suspicion of foul
play, all specimens, samples, or evidence must be transmitted to the Division for
analysis.93

88
89
90
91
92
93

O.C.G.A. §§ 45-16-24(a), -25(a)(1) (2004).
O.C.G.A. § 45-16-21(9) (2004).
O.C.G.A. § 45-16-21(10) (2004).
O.C.G.A. § 45-16-24(d) (2004).
O.C.G.A. § 45-16-32 (2004).
Id.

103

II. ANALYSIS
A. Recommendation #1
Crime laboratories and medical examiner offices should be accredited,
examiners should be certified, and procedures should be standardized and
published to ensure the validity, reliability, and timely analysis of forensic
evidence.

The State of Georgia does not require crime laboratories or medical examiner offices to
be accredited. All of the crime laboratories of the Division of Forensic Sciences of the
Georgia Bureau of Investigation (the Division), however, are currently accredited by the
Crime Laboratory Accreditation Program of the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board (ASCLD/LAB) and/or possess ISO/IEC 17025
accreditation through the Forensic Quality Services-International Division of the National
Forensic Science Technology Center (FQS-I).94
Both accreditation programs require laboratory personnel to possess certain
qualifications.95 For example, the ASCLD/LAB Laboratory Accreditation Board 2003
Manual requires the examiners to have a specialized baccalaureate degree relevant to
his/her crime laboratory specialty, experience/training commensurate with the
examinations and testimony provided, and an understanding of the necessary instruments
and methods and procedures.96 The examiners must also successfully complete a
competency test prior to assuming casework responsibility and successfully complete
annual proficiency tests.97
Additionally, a review of the Division’s annual reports indicates that the Division
provides training programs for new examiners to ensure that they possess the necessary
knowledge and skills to perform the required tasks. Specifically, the Division’s 1999
Annual Report states: “A training plan was developed that allowed support staff, such as
laboratory assistants, evidence-receiving technicians and forensic pathologists, to come
on board and begin working within 30 days of hire. The training programs for scientists
were lengthier—four months for toxicologists and three months for chemists.” 98 The
Division’s 2000 Annual Report further indicates that after completing the three to four
months of training, the scientists “successfully completed the necessary knowledge, skills
and abilities requirements to perform complex scientific testing and courtroom

94

FSQ-I
Programs,
ISO/IEC
Accredited
Laboratories,
at
http://www.forquality.org/accreditation.htm#atlanta (last visited on Oct. 5, 2005).
95
See supra notes 37-38, 61.
96
ASCLD/LAB 2003 MANUAL, supra note 16, at 37-50.
97
Id.
98
Georgia Bureau of Investigation, Division of Forensic Sciences, 1999 Annual Report, at
http://www.ganet.org/gbi/99annual/99ar_dofs.html (last visited on Oct. 5, 2005).

104

testimony.”99 The Division’s 2001 and 2002 annual reports state, “During FY’01,
additional instruction was given to the scientists to complete training in their respective
fields of forensic science.”100
Both accreditation programs also require laboratories to take certain measures to ensure
the validity, reliability and timely analysis of forensic evidence. For example, the
ASCLD/LAB program requires the laboratory to have clearly written procedures for
handling and preserving the integrity of evidence; preparing, storing, securing and
disposing of case records and reports; and for maintaining and calibrating equipment.101
Similarly, the ISO/IEC 17025 program requires the laboratory to establish and maintain
procedures for identifying, collecting indexing, accessing, filing, storing, maintaining and
disposing of quality and technical reports.102 Both programs require these procedures to
be included in the laboratory’s quality manual.103 Neither program, however, explicitly
requires the laboratory to publish its procedures.
Similarly, Georgia law requires the Division to establish “written standards and
procedures for the administration of forensic testing,”104 which may include “standards
for the identification, collection, transportation, and analysis of forensic evidence.”105
These standards, however, do not have to be “published or made available for public
inspection” in order to become effective, because the General Assembly made such
standards exempt from the Georgia Administrative Procedure Act.106 We note that the
Division has established and posted on its website a manual entitled “Laboratory Services
and Requirements for Submitting Evidence,” but the manual focuses on the “process of
submitting evidence to [Division] laboratories” rather than the analysis of evidence by the
laboratories.107

99

Georgia Bureau of Investigation, Division of Forensic Sciences, 2000 Annual Report, at
http://www.ganet.org/gbi/00annual/00ar_dofs.html (last visited on Oct. 5, 2005).
100
Georgia Bureau of Investigation, Division of Forensic Sciences, 2001 Annual Report, at
http://www.ganet.org/gbi/01annual/01ar_dofs.html (last visited on Oct. 5, 2005); Georgia Bureau of
Investigation,
Division
of
Forensic
Sciences,
2002
Annual
Report,
at
http://www.ganet.org/gbi/02annual/DOFS_FY02.pdf (last visited on Oct. 5, 2005).
101
ASCLD/LAB 2003 MANUAL, supra note 16, at 21.
102
FQS-I, ISO/IEC 17025 ACCREDITATION S TANDARDS, supra note 51, at 21.
103
The ISO/IEC 17025 program specifically requires the laboratory quality manual to “include or make
reference to the supporting procedures including technical procedures.” Id at 12. Similarly, the
ASCLS/LAB program requires the quality manual to contain or reference the documents or
policies/procedures pertaining, but not limited to, the following: (1) control and maintenance of
documentation of case records and procedure manuals, (2) validation of test procedures used, (3) handling
evidence, (4) use of standards and controls in the laboratory, (5) calibration and maintenance of equipment,
(6) practices for ensuring continued competence of examiners, and (7) taking corrective action whenever
analytical discrepancies are detected. ASCLD/L AB 2003 MANUAL, supra note 16, at 23-24.
104
O.C.G.A. § 35-3-1 54(1) (2004).
105
O.C.G.A. § 35-3-151(3) (2004).
106
O.C.G.A. § 35-3-155 (2004); see also O.C.G.A. § 50-13-03(b) (2004).
107
See Georgia Bureau of Investigation, Division of Forensic Services, Laboratory Services and
Requirements for Submitting Evidence, at http://www.ganet.org/gbi/labmanual.html (last visited on Oct. 5,
2005).

105

With respect to medical examiner offices, we were unable to obtain sufficient
information to state with any degree of certainty whether any medical examiner offices
are currently accredited or have adopted standardized procedures for medical
examinations. Georgia law, however, requires all medical examiners to possess certain
qualification standards. For example, the Chief Medical Examiner is required to be a
pathologist certified in forensic pathology by the American Board of Pathology and all
regional medical examiners must be pathologists.108 Additionally, in an effort to ensure
the validity and reliability of medical examiners’ inquiries and coroners’ investigations,
Georgia law requires all medical examiners and coroners to file a report of each medical
examiner’s inquiry and coroner’s investigation with the Division, which then reviews the
reports for foul play and in cases of foul play, re-tests any specimen, samples, or
evidence.109
Based on this information, the State of Georgia is only in partial compliance with
Recommendation #1.
B. Recommendation #2
Crime laboratories and medical examiner offices should be adequately funded.

A review of the Division’s annual reports indicates a personnel shortage and case backlog
as a result of “budget shortfalls,” “budget constraints,” and a “growing caseload.”110 The
Division’s 2004 annual report states: “Despite carrying an average of 40 vacancies,
principally due to budget shortfalls, [the Division] produces more than 88,114 reports.”111
The report continues as follows: “The individual caseload for scientists remains high, but
the overall case production of [the Division] has fallen well short of the demand for
services. The result is a greatly increased backlog over the previous year. The backlog is
expected to be in excess of 36,000 cases by the end of FY’05.”112 Given that Division
crime laboratories are experiencing “budget shortfalls” and “budget constraints,” it does
not appear as if the Division is adequately funded.

108

See supra notes 69, 71, 80 and accompanying text.
O.C.G.A. § 45-16-32 (2004).
110
Georgia Bureau of Investigation, Division of Forensic Services, Crime Lab Annual Report 2004, at
http://www.ganet.org/gbi/04annual/DOFS_FY04.pdf (last visited on Oct. 5, 2005); Georgia Bureau of
Investigation, Division of Forensic Services, Crime Lab Annual Report 2003, at
http://www.ganet.org/gbi/03annual/DOFS_FY03.pdf (last visited Sept. 26, 2004) (noting the 40 vacancies
due to budget shortfalls and indicating that “[w]ith additional constraints (due to a weak economy) and a
growing caseload, [the Division] will most likely develop a backlog larger than the one that existed in
FY’01 (36,000 cases).”); Georgia Bureau of Investigation, Division of Forensic Services, Crime Lab
Annual Report 2002, at http://www.ganet.org/gbi/02annual/DOFS_FY02.pdf (last visited on Oct. 5, 2005)
(noting “with additional budget constraints (due to a weak economy) and the increased caseload, the
laboratory has begun to developa [sic] backlog that continues to grow.”)
111
Georgia Bureau of Investigation, Division of Forensic Services, Crime Lab Annual Report 2004, at
http://www.ganet.org/gbi/04annual/DOFS_FY04.pdf (last visited on Oct. 5, 2005).
112
Id.
109

106

We were, however, unable to obtain sufficient information to appropriately assess the
adequacy of the funding provided to both Division crime laboratories and medical
examiner offices.

107

108

CHAPTER FIVE
PROSECUTORIAL PROFESSIONALISM
INTRODUCTION TO THE ISSUE
The prosecutor plays a critical role in the criminal justice system. Although the
prosecutor operates within the adversary system, the prosecutor’s obligation is to protect
the innocent as well as to convict the guilty, to guard the rights of the accused as well as
to enforce the rights of the public.
Because prosecutors are decision makers on a broad policy level and preside over a wide
range of cases, they are sometimes described as “administrators of justice.” Each
prosecutor has responsibility for deciding whether to bring charges and, if so, what
charges to bring against the accused. S/he must also decide whether to prosecute or
dismiss charges or to take other appropriate actions in the interest of justice. Moreover,
in cases in which capital punishment can be sought, prosecutors have enormous
additional discretion deciding whether or not to seek the death penalty. The character,
quality, and efficiency of the whole system is shaped in great measure by the manner in
which the prosecutor exercises his or her broad discretionary powers.
While the great majority of prosecutors are ethical, law-abiding individuals who seek
justice, one cannot ignore the existence of prosecutorial misconduct and the impact it has
on innocent lives and society at large. Between 1970 and 2004, individual judges and
appellate court panels cited prosecutorial misconduct as a factor when dismissing charges
at trial, reversing convictions or reducing sentences in at least 2,012 criminal cases,
including both death penalty and non-death penalty cases. 1
Prosecutorial misconduct can encompass various actions, including but not limited to
failing to disclose exculpatory evidence, abusing discretion in filing notices of intent to
seek the death penalty, racially discriminating in making peremptory challenges,
covering-up and/or endorsing perjury by informants and jailhouse snitches, or making
inappropriate comments during closing arguments.2 The causes of prosecutorial
misconduct range from an individual’s desire to obtain a conviction at any cost to lack of
proper training, inadequate supervision, insufficient resources, and excessive workloads.
In order to curtail prosecutorial misconduct and to reduce the number of wrongly
convicted individuals, federal, state, and local governments must provide adequate
funding to prosecutors’ offices, adopt standards to ensure manageable workloads for

1

See S TEVE W EINBERG, C ENTER FOR P UBLIC INTEGRITY, B REAKING THE RULES: W HO S UFFERS WHEN A
PROSECUTOR IS C ITED FOR MISCONDUCT? (2004), available at http://www.publicintegrity.org/pm/ (Jan. 5,
2006).
2
Id.;
see
also
Police
and
Prosecutorial
Misconduct,
Innocence
Project,
at
http://www.innocenceproject.org/causes/policemisconduct.php (Jan. 5, 2006).

109

prosecutors, and require that prosecutors scrutinize cases that rely on eyewitness
identifications, confessions, or testimony from witnesses who receive a benefit from the
police or prosecution. Perhaps most importantly, there must be meaningful sanctions,
both criminal and civil, against prosecutors who engage in misconduct.

110

I. FACTUAL DISCUSSION
The State of Georgia is divided into forty-nine judicial circuits. 3 Each judicial circuit has
an elected district attorney4 who is charged with representing the state in all felony
criminal cases in the superior courts of the circuit and on appeal.5 Each district attorney’s
office has “a full-time staff of assistant district attorneys, investigators, victim assistance
and administrative personnel who assist the district attorney in carrying out the duties of
the office.”6 District attorneys’ offices differ in size and have correspondingly different
internal office procedures.7 Although there are no statewide procedures that govern the
operation of district attorney’s offices, the State of Georgia has established the
“Prosecuting Attorneys’ Council”8 to “assist the prosecuting attorneys throughout the
state in their efforts against criminal activity in the state.” 9
A. The Prosecuting Attorneys’ Council
In 2005, the Prosecuting Attorneys’ Council (PAC) established a capital litigation section
within its office to provide assistance to prosecutors handling capital cases, but the
section is not currently funded.10 In the meantime, PAC remains authorized to assist
prosecuting attorneys throughout the state by:
1.

Obtaining, preparing, supplementing, and disseminating indexes to
and digests of the decisions of the Georgia Supreme Court and the

3

Judicial
Branch
of
Georgia,
Administrative
Office
of
the
Courts,
at
http://www.georgiacourts.org/courts/ (last visited on Dec. 15, 2005).
4
See GA. CONST. art. 6, § 8, para. 1 (stating that district attorneys are “elected circuit-wide for a term of
four years”); see also O.C.G.A. § 15-18-3 (2005) (containing the requisite qualifications for becoming a
district attorney).
5
See GA. C ONST. art. 6, § 8, para. 1; see also O.C.G.A. § 15-18-6 (2005) (containing a detailed
explanation of the duties of a district attorney); Prosecuting Attorneys’ Council, About PAC, at
http://www.pacga.org/about/ (last visited on Dec. 27, 2005).
6
See Prosecuting Attorneys’ Council, About PAC, at http://www.pacga.org/about/ (last visited on Dec.
27, 2005); O.C.G.A. § 15-18-14 (2005) (discussing procedures for the appointment of assistant district
attorneys).
7
Email from Chuck Olson, General Counsel, Prosecuting Attorneys’ Council, to Anne Emanuel,
Associate Dean for Academic Affairs and Professor of Law, Georgia State University College of Law
(Nov. 21, 2005) (on file with author); see also Prosecuting Attorneys’ Council, at http://www.pacga.org/
(last visited on Dec. 15, 2005) (click on “Find a Prosecutor” and then “List All District Attorneys” for a
listing of prosecutors throughout the state).
8
PAC is composed of nine members, six of whom must be district attorneys and three of whom must be
solicitors or solicitors-general of courts of record. See O.C.G.A. § 15-18-41(a) (2005); see also O.C.G.A. §
15-18-41(c) (2005) (noting that the term of office of each member of the council shall be for a period of
four
years);
Prosecuting
Attorneys’
Council,
Council
Members,
at
http://www.pacga.org/about/council.shtml (last visited on Dec. 27, 2005) (including the names, titles, and
e-mail addresses for all nine council members).
9
O.C.G.A. § 15-18-40(b) (2005).
10
E-mails from Chuck Olson, General Counsel, Prosecuting Attorneys’ Council, to Anne Emanuel,
Associate Dean for Academic Affairs and Professor of Law, Georgia State University College of Law (Oct.
11, 2005 and Nov. 15, 2005) (on file with author).

111

2.
3.

4.
5.
6.
7.

Court of Appeals of Georgia and other courts, statutes, and legal
authorities relating to criminal matters;
Preparing and distributing a basic prosecutor's manual and other
educational materials;
Preparing and distributing model indictments, search warrants,
interrogation devices, and other common and appropriate
documents employed in the administration of criminal justice at
the trial level;
Promoting and assisting with the training of prosecuting attorneys;
Providing legal research assistance to prosecuting attorneys;
Providing such assistance to law enforcement agencies as may be
lawful; and
Providing such other assistance to prosecuting attorneys as may be
authorized by law.11

PAC is also “authorized to conduct or approve for credit or reimbursement, or both, basic
and continuing legal education courses or other appropriate training programs for the
district attorneys, solicitors-general, and other prosecuting attorneys [in Georgia] and the
members of the staffs of such officials.”12 PAC “offers general and specialized Georgia
State Bar CLE-accredited training courses for the professional development needs of
Georgia prosecutors as they progress through their careers as public attorneys.”13 The
training courses include but are not limited to the “Fundamentals of Prosecution,”14
which is for new prosecutors; a course dedicated to prosecuting capital crimes, which is
offered two out of every three years;15 and the Winter and Summer Conferences, which

11

O.C.G.A. § 15-18-40(b)(1)-(7) (2005).
O.C.G.A. § 15-18-45(a) (2005).
13
Prosecuting Attorneys’ Council, Training, at http://www.pacga.org/departments/training.shtml (last
visited on Dec. 30, 2005).
14
Prosecuting
Attorneys’
Council,
Fundamentals
of
Prosecution,
at
http://www.pacga.org/downloads/training/2005_fundament_pros/announce_&_registr.pdf (last visited on
Dec. 27, 2005) (noting that “[p]rosecutors admitted to practice in the State of Georgia on or after July 1,
2005, who are participating in the Transition into Prosecution Program [of the State Bar of Georgia], must
attend Fundamentals of Prosecution within 12 months of the date of their admission to the Bar. Prosecutors
who passed the Bar prior to July 1, 2005, but have not attended the ICLE “Bridge the Gap” seminar may
participate in Fundamentals of Prosecution in lieu of attending “Bridge the Gap.”); see also STATE B AR OF
GA.,
2005-2006
HANDBOOK
R.
8-104,
at
H-143,
available
at
http://www.gabar.org/handbook/part_viii_continuing_lawyer_competency/rule_8104_education_requirements_and_exemptions/ (last visited on Dec. 27, 2005) (including the continuing
legal education requirements and exemptions).
15
E-mail Interview with Richard Malone, Executive Director, Prosecuting Attorneys’ Council, and Joe
Burford, Director of Trial Support, Prosecuting Attorneys’ Council (April 14, 2005); see, e.g., Prosecuting
Attorneys’ Council, 2005 Winter Conference and 2005 Introduction to Drug Prosecution Course, AfterReport and Photo Gallery, at http://www.pacga.org/training/2005_wc_photo_gallery.htm (last visited on
Dec. 27, 2005) (noting that the “District Attorney’s track ranged from Capital Litigation Resources to
Exercising Guided Discretion”).
12

112

are offered each year.16 The agenda for the next PAC conference—Winter Conference
2006—includes training on crime scene investigation, analyzing evidence and developing
strategies and techniques to most effectively present the evidence, and the legal, ethical,
and professional standards applicable to Georgia prosecutors.17
In addition to the ethical training provided by PAC, the State Bar of Georgia (the State
Bar) has created the Georgia Rules of Professional Conduct, which specifically address
the professional and ethical responsibilities of prosecutors.
B. The Georgia Rules of Professional Conduct
The Georgia Rules of Professional Conduct state that “[a] prosecutor has the
responsibility of a minister of justice and not simply that of an advocate. This
responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient evidence.”18 To
ensure that these obligations are met, Rule 3.8 of the Georgia Rules of Professional
Conduct requires a prosecutor in a criminal case to comply with a number of
requirements, including but not limited to: (1) refraining from prosecuting a charge that
the prosecutor knows is not supported by probable cause, and (2) making timely
disclosure to the defense of all evidence or information known to the prosecutor that
tends to negate the guilt of the accused or that mitigates the offense.19 The maximum
penalty for violating this rule is a public reprimand.20
The Georgia Rules of Professional Conduct also require all attorneys, including
prosecutors, to report professional misconduct. Rule 8.3 of the Georgia Rules of
Professional Conduct specifically states, “[a] lawyer having knowledge that another
lawyer has committed a violation of the Georgia Rules of Professional Conduct that
raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a

16

E-mail Interview with Richard Malone, Executive Director, Prosecuting Attorneys’ Council, and Joe
Burford, Director of Trial Support, Prosecuting Attorneys’ Council (April 14, 2005).
17
Prosecuting
Attorneys’
Council,
Winter
Conference
Tentative
Agenda,
at
http://www.pacga.org/downloads/training/2006_winter/2006_wc_agenda.pdf (last visited on Dec. 27,
2005).
18
GA.
RULES
OF
PROF ’L
CONDUCT
R.
3.8
cmt.,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_38_special_responsibilities_of_a_prosecutor/ (last visited on
Dec. 27, 2005) (describing the special responsibilities of a prosecutor).
19
GA.
RULES
OF
P ROF’L
C ONDUCT
R.
3.8,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_38_special_responsibilities_of_a_prosecutor/ (last visited on
Dec. 27, 2005).
20
Id.;
see
also
G A.
R ULES
OF
P ROF’ L C ONDUCT
R. 4-102,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_4-102_disciplinary_action_levels_of_discipline_standards/
(last visited on Dec. 19, 2005) (describing the specifics of a public reprimand).

113

lawyer in other respects, should inform the appropriate professional authority.”21 The
power to investigate grievances and to discipline members of the State Bar is vested in
the State Disciplinary Board,22 which is composed of the Investigative Panel and the
Review Panel, and a Consumer Assistance Program. 23
The Investigative Panel has the authority to initiate grievances on its own, but also is
required to receive and evaluate grievances against State Bar members.24 All grievances
other than those initiated by the Georgia Supreme Court, the Investigative Panel, or
inquiries that may be filed with the Consumer Assistance Program must be first filed with
the Office of the General Counsel of the State Bar, which has the authority to screen
grievances to determine whether they are “unjustified, frivolous, patently unfounded or
fail[] to state facts sufficient to invoke the disciplinary jurisdiction of the State Bar of
Georgia.”25
C. Relevant Prosecutorial Responsibilities
1. Notice of Intent to Seek the Death Penalty
The State of Georgia gives district attorneys the discretion to seek the death penalty in
any case in which the defendant is charged with aircraft hijacking or treason or where one
of the ten aggravating factors contained in section 17-10-30 of the Official Code of
Georgia Annotated is present.26 If the decision is made to seek the death penalty, the

21

GA.
RULES
OF
P ROF’L
C ONDUCT
R.
8.3,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_83_reporting_professional_misconduct/ (last visited on Dec.
30, 2005).
22
GA.
R ULES
OF
P ROF’L
CONDUCT
R.
4-201,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/4-201_state_disciplinary_board/ (last visited on Dec. 30, 2005);
see
also
GA.
R ULES
OF
PROF ’L
C ONDUCT
R.
4-202,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_4202_receipt_of_grievances_initial_review_by_bar_counsel/ (last visited on Dec. 30, 2005) (discussing the
receipt of grievances and the initial review by the Office of the General Counsel of the State Bar of
Georgia).
23
GA.
R ULES
OF
P ROF’L
CONDUCT
R.
4-201,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/4-201_state_disciplinary_board/ (last visited on Dec. 30, 2005).
24
GA.
R ULES
OF
P ROF’L
CONDUCT
R.
4-202,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_4202_receipt_of_grievances_initial_review_by_bar_counsel/ (last visited on Dec. 30, 2005).
25
Id.
26
Moore v. State, 243 S.E.2d 1, 6 (Ga. 1978) (referencing O.C.G.A. § 17-10-30(2005)); see also GA.
UNIFIED APPEAL R. II(C)(1); Rower v. State, 443 S.E.2d 839, 841 (Ga. 1994) (citing Jones v. State, 440
S.E.2d 161 (Ga. 1994), and stating that “[a]bsent a showing that the district attorney acted in an
unconstitutional manner with respect to his case, Rower may not inquire into the prosecutor's exercise of
discretion in seeking the death penalty against him”).

114

prosecutor must announce his/her decision at the pre-trial conference, which is held after
the defendant is indicted but before his/her arraignment, and file a notice of intent with
the clerk of the superior court.27 Notices of intent can be withdrawn for any reason.28
2. Plea Bargaining
The Bibb County District Attorney’s Office has recently implemented plea bargaining
standards on a trial basis in an effort to ensure uniform plea bargains for all defendants in
the same position.29 The standards require that the defendant’s information, including
his/her offense and prior offenses, be entered into a database that generates a
recommended plea bargain sentence.30 It is unclear whether other district attorney’s
offices have standards for determining when a prosecutor may or may not offer a
defendant a plea bargain.31 The Prosecuting Attorneys’ Council, however, does appear to
provide training on plea bargaining during its “Fundamentals of Prosecution” course.32
3. Discovery
a. Discovery Requirements
State and federal law require the state to disclose evidence favorable to the defendant
when such evidence is material either to the defendant’s guilt or punishment (“Brady33
material”).34 The prosecutor “is not required to deliver his[/her] entire file to defense
counsel, but is required to disclose evidence favorable to the accused that, if suppressed,
would deprive the defendant of a fair trial.”35 This includes the “disclosure of
impeachment evidence which could be used to show bias or interest on the part of a key
State witness. Accordingly, the State is under a duty to reveal any [deal or] agreement,
even an informal one, with a witness concerning criminal charges pending against that

27

GA. UNIFIED A PPEAL R. II(C)(1).
E-mail Interview with Richard Malone, Executive Director, Prosecuting Attorneys’ Council, and Joe
Burford, Director of Trial Support, Prosecuting Attorneys’ Council (April 14, 2005); Interview with Tom
Clegg, Clegg and Daniels LLC (July 25, 2005).
29
Interview with Neil Alan Halvorson, Macon Judicial Circuit District Attorney’s Office (Sept. 22,
2005).
30
Id.
31
See, e.g., E-mail Interview with Richard Malone, Executive Director, Prosecuting Attorneys’ Council,
and Joe Burford, Director of Trial Support, Prosecuting Attorneys’ Council (April 14, 2005).
32
Prosecuting
Attorneys’
Council,
Fundamentals
of
Prosecution,
at
http://www.pacga.org/downloads/training/2005_fundament_pros/announce_&_registr.pdf (last visited on
Dec. 27, 2005)
33
In Brady v. Maryland, the United States Supreme Court found that “the suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” See Brady v.
Maryland, 373 U.S. 83, 87 (1963).
34
Brady, 373 U.S. at 87; Burgeson v. State, 475 S.E.2d 580, 583 (Ga. 1996).
35
Schofield v. Palmer, 621 S.E.2d 726, 730 (Ga. 2005) (citing United States v. Bagley, 473 U.S. 667,
675 (1985)).
28

115

witness.”36 A prosecutor must not only disclose the evidence of which s/he is aware, but
also “favorable evidence known to others acting on the government’s behalf,” even if the
prosecutor is not personally aware of its existence.37
In addition, since January 1, 1995,38 all defendants charged with at least one felony
offense have had the option to participate in “reciprocal discovery” of witnesses,
statements, reports, and evidence.39 In order to participate in reciprocal discovery, the
defendant must provide the prosecuting attorney with written notice of his/her decision at
or prior to arraignment, or at such time as the court permits.40 If the defendant gives
notice of his/her decision to participate in reciprocal discovery, the requirements of
reciprocal discovery will apply to the guilt/innocence phase of a capital trial as well as to
the sentencing phase.41
Pursuant to the reciprocal discovery statutes, both the prosecuting attorney and the
defendant are required to disclose to the opposing party certain evidence.42 Specifically,
the prosecuting attorney is required, no later than ten days prior to trial or as otherwise
ordered by the court, to disclose, furnish, and/or permit the defendant to inspect, copy, or
photograph the following evidence:
 Written or recorded statements made by the defendant, or copies thereof, within
the possession, custody, or control of the state or prosecution;
 Any written record containing the substance of any relevant oral statements made
by the defendant, before or after arrest, in response to interrogation by any person
then known to the defendant to be a law enforcement officer or member of the
prosecuting attorney’s staff;
 The substance of any other relevant oral statement made by the defendant, before
or after arrest, in response to interrogating by any person then known by the

36

Ford v. State, 614 S.E.2d 907, 908 (Ga. Ct. App. 2005); Giglio v. United States, 405 U.S. 150, 154-55
(1972); Palmer, 621 S.E.2d at 730 (citing Bagley, 473 U.S. at 675 and Giglio, 405 U.S. at 154-55).
37
Kyles v. Whitley, 514 U.S. 419, 437-39 (1995); Palmer, 621 S.E.2d at 730-31.
38
In 1994, the Georgia Legislature adopted the Criminal Procedure Discovery Act, in an effort to provide
for the “comprehensive regulation of discovery and inspection in criminal cases.” 1994 Ga. Laws 1252.
The Act became effective on January 1, 1995. Id. Prior to 1995, the State of Georgia did not have any
comprehensive statute or rule pertaining to discovery in criminal cases. See State v. Lucious, 518 S.E.2d
677, 679 (Ga. 1999).
39
O.C.G.A. §§ 17-16-1 to -10 (2005).
40
O.C.G.A. § 17-16-2 (2005). In cases in which at least one felony is charged which was docketed,
indicted, or in which an accusation was returned prior to January 1, 1995, the defendant may participate in
reciprocal discovery only if both the defendant and the prosecuting attorney agree in writing to participate.
See O.C.G.A. § 17-16-2(e) (2005). If such defendant does not opt to participate in reciprocal discovery,
s/he has a right to the discovery afforded in sections 17-16-20 through 17-16-23 of the Official Code of
Georgia Annotated. See O.C.G.A. § 17-16-20 (2005).
41
O.C.G.A. § 17-16-2(f) (2005).
42
See O.C.G.A. §§ 17-16-4, -5, -7, -8 (2005) (delineating the requirements for participating in
“reciprocal discovery”).

116











defendant to be a law enforcement officer or member of the prosecuting
attorney’s staff if the state intends to use that statement at trial;
The substance of any other relevant written or oral statement made by the
defendant while in custody, whether or not in response to interrogation;
Statements of co-conspirators that are attributable to the defendant and arguably
admissible against the defendant at trial;
A copy of the defendant’s Georgia Crime Information Center criminal history, if
any, as is within the possession, custody, or control of the state or prosecution;
Books, papers, documents, photographs, tangible objects, audio and video tapes,
films and recordings, buildings or places, or copies or portions of any of these
things which are in the possession, custody, or control of the state or prosecution
and are intended for use by the prosecuting attorney as evidence in the
prosecution’s case-in-chief or rebuttal at the trial or were obtained from or belong
to the defendant;
A report of any physical or mental examinations and of scientific tests or
experiments, including a summary of the basis for the expert opinion rendered in
the report, or copies thereof, if the state intends to introduce in evidence in its
case-in-chief or in rebuttal the results of the examinations or tests. If the report is
oral or partially oral, the prosecuting attorney must reduce all relevant and
material information to writing. This does not include any other material, note,
or memorandum relating to the psychiatric or psychological treatment or therapy
of any victim or witness;
Any evidence in aggravation of punishment that the state intends to introduce in
sentencing; and
The names, current locations, dates of birth, and telephone numbers of the
prosecuting attorney’s witnesses, unless for good cause the judge allows an
exception to this requirement, in which event the defense attorney must be
afforded an opportunity to interview such witnesses prior to the witnesses being
called to testify.43

The defendant within ten days of timely compliance by the prosecuting attorney, but no
later than five days prior to the trial or as otherwise ordered by the court, must disclose,
furnish, and/or permit the prosecuting attorney to inspect, copy, or photograph the
following evidence:
 Books, papers, documents, photographs, tangible objects, audio and video tapes,
films and recordings, buildings or places, or copies or portions of any of these
things which are in the possession, custody, or control of the defendant and which
the defendant intends to introduce as evidence in the defendant’s case-in-chief or
rebuttal at the trial;
43

O.C.G.A. §§ 17-16-4(a)(1)-(5), -8(a) (2005). Section 17-16-8(b), however, does not require the
prosecution to provide the home address, home telephone number, and date of birth of a witness who is a
law enforcement officer. O.C.G.A. §§ 17-16-8(b) (2005). The prosecution must instead provide the law
enforcement officer’s current work location and work phone number. Id.

117

 A report of any physical or mental examinations and of scientific tests or
experiments, including a summary of the basis for the expert opinion rendered in
the report, or copies thereof, if the defendant intends to introduce in evidence in
its case-in-chief or in rebuttal the results of the examinations or tests. If the report
is oral or partially oral, the defendant must reduce all relevant and material
information to writing. This does not include any other material, note, or
memorandum relating to the psychiatric or psychological treatment or therapy of
any defendant or witness; and
 The names, current locations, dates of birth, and telephone numbers of the defense
witnesses, unless for good cause the judge allows an exception to this
requirement, in which event the prosecuting attorney must be afforded an
opportunity to interview such witnesses prior to the witnesses being called to
testify.44
Additionally, both parties, no later than ten days prior to trial or at such time as the court
permits, or at the time of any post-indictment pretrial evidentiary hearing other than a
bond hearing, must provide the opposing party with any witness statement that is in the
possession, custody, or control of the party, that relates to the subject matter concerning
the testimony of the witness, and that the party in possession, custody, or control of the
statement intends to call as a witness at trial or at such post-indictment pretrial
evidentiary hearing.45
In cases in which the defendant does not elect to participate in “reciprocal discovery,” the
defendant is entitled only to the discovery afforded “by the Georgia and United States
Constitutions, statutory exceptions to the Act, and non-conflicting rules of court.” 46 This
includes, but is not limited to, a list of witnesses from the grand jury, Brady material, pretrial examination of known handwriting samples, and records under the Open Records
Act.47 It does not, however, include discovery of the state’s scientific reports, scientific
work product, or trial witness lists.48
b. Challenges to Discovery Violations
If either party fails to comply with the requirements of reciprocal discovery, the judge has
the “‘discretion to take any listed corrective action it deems appropriate,’”49 including
ordering the non-complying party to allow the discovery or inspection of discoverable
materials.50 If the defendant makes a showing of “prejudice and bad faith,” the judge has

44

O.C.G.A. §§ 17-16-4(b)(1)-(2), -8(a) (2005).
O.C.G.A. § 17-16-7 (2005).
46
See State v. Lucious, 518 S.E.2d 677, 679 (Ga. 1999).
47
Blevins v. State, 606 S.E.2d 624, 628 (Ga. Ct. App. 2004); Lucious, 518 S.E.2d at 684-85 (Fletcher, J.,
concurring in part and dissenting in part).
48
Lucious, 518 S.E.2d at 681-82.
49
Brown v. State, 601 S.E.2d 405, 408 (Ga. 2004) (citing Jones v. State, 554 S.E.2d 238, 240 (Ga. Ct.
App. 2001)).
50
O.C.G.A. § 17-16-6 (2005); McMorris v. State, 588 S.E.2d 817, 821 (Ga. Ct. App. 2003).
45

118

the discretion to prohibit the introduction of the undisclosed evidence or to prohibit the
undisclosed witnesses from testifying.51
Following the trial, a defendant may obtain relief for the prosecution’s failure to disclose
Brady material at trial by showing that: (1) the state possessed evidence favorable to the
defendant; (2) the defendant did not possess the evidence and could not obtain it himself
with any reasonable diligence; (3) the state suppressed the favorable evidence; and (4)
had the evidence been disclosed to the defense, a reasonable probability exists that the
outcome of the proceeding would have been different.52
The judge’s decision to take corrective action (or not to take corrective action) based on a
discovery violation, Brady or otherwise, is reviewed under the abuse of discretion
standard.53 The trial court’s failure to take corrective action based on a discovery
violation committed by the state is “‘subject to scrutiny for harmless error’”54 and
“constitutes reversible error only if the violation harmed the defendant’s ability to prepare
and present his[/her] defense or otherwise deprived him[/her] of a fair trial.”55
4. Limitations on Arguments
a. Guilt/Innocence Phase
A prosecutor’s opening argument is limited to “expected proof by legally admissible
evidence.”56 On the other hand, prosecutors are “granted wide latitude in conducting
closing argument[s],”57 but there are certain limitations, “the first and foremost of which
is the longstanding prohibition against ‘the injection into the argument of extrinsic and
prejudicial matters which have no basis in the evidence.’” 58 For example, prosecutors
may not ask the jury to “place themselves in a victim’s position”59 or comment on the

51

O.C.G.A. § 17-16-6 (2005); McMorris, 588 S.E.2d at 821; see also Brown v. State, 601 S.E.2d 405,
408 (Ga. Ct. App. 2004); Davis v. State, 571 S.E.2d 497, 500 (Ga. Ct. App. 2002) (noting that “[i]n the
absence of evidence showing prejudice to the defendant and bad faith by the State, the harsh sanction of
excluding evidence improperly withheld from the defense under OCGA § 17-16-6 is not available”).
52
Schofield v. Palmer, 621 S.E.2d 726, 731 (Ga. 2005); Burgeson v. State, 475 S.E.2d 580, 583 (Ga.
1996).
53
Jones v. State, 2005 WL 3303954, at *4 (Ga. Dec. 7, 2005); Ely v. State, 621 S.E.2d 811, 814 (Ga. Ct.
App. 2005) (citing Brown v. State, 512 S.E.2d 369, 372 (Ga. Ct. App. 1999)); Davis, 571 S.E.2d at 500
(citing Williams v. State, 485 S.E.2d 837, 838 (Ga. Ct. App. 1997)).
54
Brown, 601 S.E.2d at 408 (citing Williams v. State, 568 S.E.2d 132, 135 (Ga. 2002)); see also Hill v.
State, 502 S.E.2d 505, 506-07 (Ga. 1998).
55
Jones, 2005 WL 3303954, at *2; Gresham v. State, 462 S.E.2d 370, 371 (Ga. 1995); Bertholf v. State,
482 S.E.2d 469, 470 (Ga. Ct. App. 1997).
56
GA. UNIF. SUPER . C T. R. 10.2.
57
Clonts v. State, 579 S.E.2d 1, 4 (Ga. Ct. App. 2001) (quoting Arnold v. State, 545 S.E.2d 312, 318
(Ga. Ct. App. 2001)); Wisdom v. State, 217 S.E.2d 244, 249 (Ga. 1975).
58
Bell v. State, 439 S.E.2d 480, 481 (Ga. 1994).
59
Braithwaite v. State, 572 S.E.2d 612, 615 (Ga. 2002).

119

defendant’s failure to testify during the guilt phase of the trial.60 Similarly, prosecutors
may not express their personal belief about the defendant’s guilt.61 However, prosecutors
are permitted to “argue the defendant’s guilt as a conclusion from the evidence.”62
b. Sentencing Phase
Prosecutors may not argue during the penalty phase of a death penalty trial that the
ultimate decision to impose a death sentence rests with a court higher than the trial
court.63
Prosecutorial arguments held to be proper, however, include future
dangerousness,64 the possibility of parole,65 and telling the jury to reject mercy.66
c. Challenges to Prosecutorial Arguments
Georgia law provides that “[w]here counsel in the hearing of the jury make statements of
prejudicial matters which are not in evidence, it is the duty of the court to interpose and
prevent the same.”67 If the other party objects to the prejudicial statement, the judge must
also “rebuke the counsel and by all needful and proper instructions to the jury endeavor
to remove the improper impression from their minds; or, in his[/her] discretion, [s/]he
may order a mistrial if the prosecuting attorney is the offender.”68 “‘The extent of a
rebuke and instruction is within the discretion of the court . . . .’”69
The trial court’s ruling to remedy (or not remedy) an improper statement that is objected
to at trial is subject to a harmless error analysis on appeal. In order for constitutional
60

O.C.G.A. § 24-9-20 (2005) (stating that “[t]he failure of a defendant to testify shall create no
presumption against him or her, and no comment shall be made because of such failure”); Raheem v. State,
560 S.E.2d 680, 685 (Ga. 2002); Gosha v. State, 235 S.E.2d 527, 528 (Ga. 1977).
61
Castell v. State, 301 S.E.2d 234, 247 (Ga. 1983); Forster v. State, 4 S.E.2d 498, 498-99 (Ga. Ct. App.
1939).
62
Blue v. State, 316 S.E.2d 862, 863 (Ga. Ct. App. 1984).
63
See Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985) (concluding that “it is constitutionally
impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe
that the responsibility for determining the appropriateness of the defendant's death rests elsewhere”);
Gilreath v. State, 279 S.E.2d 650, 663 (Ga. 1981) (noting that a “prosecutor's argument, over objection, that
the jury should impose the death penalty and assume it will be set aside if not warranted, absent curative
instructions, would require reversal”). But see Johnson v. State, 519 S.E.2d 221, 230-31 (Ga. 1999)
(finding that the prosecutor’s comment that jury should not be “swayed by pleas for mercy and sympathy
and let mercy and sympathy come from a ‘higher Court,’” was permissible, since it clearly referred to a
higher spiritual power and not an appellate court).
64
Johnson, 519 S.E.2d at 231 (citing Pye v. State, 505 S.E.2d 4 (Ga. 1998)).
65
Jenkins v. State, 458 S.E.2d 477, 478 (Ga. 1995).
66
Johnson, 519 S.E.2d at 230-31 (citing Hicks v. State, 352 S.E.2d 762 (Ga. 1987)).
67
O.C.G.A. § 17-8-75 (2005).
68
Id.; see also Louis v. State, 364 S.E.2d 607, 60809 (Ga. Ct. App. 1988) (exemplifying that the
language “prosecuting attorney” found in section 17-8 -75 is not limited to prosecuting attorneys but also
includes defense counsel and co-defendant’s counsel thereby granting the judge discretion to declare a
mistrial when defense counsel or co-defendant’s counsel is the offender).
69
Love v. State, 325 S.E.2d 449, 450 (Ga. Ct. App. 1984) (citing Benefield v. State, 232 S.E.2d 89, 92 (Ga.
Ct. App. 1976)).

120

error to be deemed harmless, the state must prove beyond a reasonable doubt that the
error did not contribute to the verdict.70 The standard for determining harmless nonconstitutional error is whether “it is highly probable that the error . . . did not contribute
to the jury’s verdict.”71

70

Willingham v. State, 622 S.E.2d 343 (Ga. 2005).
Sears v. State, 386 S.E.2d 360, 362 (Ga. 1989); see also Johnson v. State, 230 S.E.2d 869, 870-71 (Ga.
1976).
71

121

II. ANALYSIS
A. Recommendation #1
Each prosecutor’s office should have written policies governing the exercise
of prosecutorial discretion to ensure the fair, efficient, and effective
enforcement of criminal law.

The State of Georgia does not require district attorney’s offices to have written policies
governing the exercise of prosecutorial discretion. The State Bar of Georgia, however,
has established the Georgia Rules of Professional Conduct (the rules), which address
prosecutorial discretion in the context of the role and responsibilities of prosecutors.72
The rules describe the prosecutor’s role as that of a “minister of justice and not simply
that of an advocate” and advise the prosecutor to “see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient evidence.”73 The
rules require prosecutors to refrain from prosecuting a charge that the prosecutor knows
is not supported by probable cause and to disclose to the defense all evidence or
information known to the prosecutor that tends to negate the guilt of the accused or that
mitigates the offense.74 Similarly, the Prosecuting Attorneys’ Council offers courses
discussing the concept of guided prosecutorial discretion (i.e., 2005 Winter
Conference).75
Although the State Bar and the Prosecuting Attorneys’ Council highlight the need for
guided prosecutorial discretion, the State of Georgia does not require district attorney’s
offices to have written policies governing the exercise of prosecutorial discretion. Based
on this information, the State of Georgia fails to meet Recommendation #1. We note that
we were unable to ascertain whether each district attorney’s office has written policies
governing the exercise of prosecutorial discretion.
Currently, the State of Georgia gives district attorneys the discretion to seek the death
penalty in any case in which the defendant is charged with aircraft hijacking or treason or
where one of the ten aggravating factors contained in section 17-10-30 of the Official
Code of Georgia Annotated (O.C.G.A.)76 is present.77 The number of aggravating factors

72

GA.
RULES
OF
PROF ’L
CONDUCT
R.
3.8
cmt.,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_38_special_responsibilities_of_a_prosecutor/ (last visited on
Jan. 5, 2006).
73
Id.
74
GA.
RULES
OF
P ROF’L
C ONDUCT
R.
3.8,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_38_special_responsibilities_of_a_prosecutor/ (last visited on
Jan. 5, 2006).
75
Prosecuting Attorneys’ Council, 2005 Winter Conference and 2005 Introduction to Drug Prosecution
Course, After-Report and Photo Gallery, at http://www.pacga.org/training/2005_wc_photo_gallery.htm
(last visited on Jan. 5, 2006).
76
O.C.G.A. § 17-10-30 (2005).

122

as well as the scope of the “outrageously or wantonly vile, horrible, or inhuman”
aggravator (section 17-10-30(b)(7) of the O.C.G.A),78 make virtually any murder a deatheligible offense.
Apart from the broad discretion given to all district attorneys statewide to seek the death
penalty, the basis for deciding to seek the death penalty differs from district attorney’s
office to district attorney’s office.79 In some offices, as long as the defendant’s crime
falls within section 17-10-30 of the O.C.G.A., the prosecuting attorney is authorized to
seek the death penalty,80 while in other offices a number of factors are taken into
consideration, including (1) strength of the evidence, (2) magnitude of the crime, (3)
defendant’s mental disabilities, (4) defendant’s criminal record and background, (5)
defendant’s family history and background, (6) public sentiment, (7) family concerns,
and (8) the role, if any, of domestic violence.81
Based on the number and scope of aggravating factors contained in the O.C.G.A.,
combined with the varying factors upon which district attorney’s offices base their
decision to seek the death penalty and the results of the race study appended to this report
(finding that race matters in Georgia death penalty sentencing),82 the Georgia Death
Penalty Assessment Team makes the following recommendations:
1.

2.

The State of Georgia should sponsor a study of its death penalty system to
determine the existence or non-existence of unacceptable disparities,
racial, geographic, or otherwise.
In order to make the concept of proportionality meaningful and to address
the racial disparities indicated by the available data, the State of Georgia
should establish a statewide clearinghouse to review decisions to seek the
death penalty. This clearinghouse should also collect data on all death-

77

Moore v. State, 243 S.E.2d 1, 6 (Ga. 1978) (referencing O.C.G.A. § 17-10-30 (2005)); see also GA.
UNIFIED APPEAL R. II(C)(1); Rower v. State, 443 S.E.2d 839, 841 (Ga. 1994) (citing Jones v. State, 440
S.E.2d 161 (Ga. 1994), and stating that “[a]bsent a showing that the district attorney acted in an
unconstitutional manner with respect to his case, Rower may not inquire into the prosecutor's exercise of
discretion in seeking the death penalty against him”).
78
Section 17-10-30(b)(7) of the O.C.G.A. allows prosecutors to seek death when “[t]he offense of
murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that
it involved torture, depravity of mind, or an aggravated battery to the victim.” O.C.G.A. § 17-10-30(b)(7)
(2005).
79
Interview with Tom Clegg, Clegg and Daniels LLC (July 25, 2005); Interview with Kenneth D.
Driggs, Assistant Public Defender, Stone Mountain Judicial Circuit Public Defender’s Office (June 15,
2005); Interview with Graham A. Thorpe, Macon Judicial Circuit District Attorney’s Office (Sept. 27,
2005).
80
Interview with Tom Clegg, Clegg and Daniels LLC (July 25, 2005).
81
Interview with Graham A. Thorpe, Macon Judicial Circuit District Attorney’s Office (Sept. 27, 2005).
82
The Race Study specifically found that white suspects and those who kill white victims are more likely
to be sentenced to death than black suspects and those who kill black victims. See Raymond Paternoster,
Glen Pierce, & Michael Radelet, Race and Death Sentencing in Georgia, 1989-1998, in AMERICAN BAR
ASSOCIATION, EVALUATING F AIRNESS AND ACCURACY IN S TATE D EATH P ENALTY SYSTEMS : THE GEORGIA
DEATH P ENALTY ASSESSMENT R EPORT app., at S-T (2006).

123

3.

eligible cases and make this data available to the Georgia Supreme Court
for use in conducting its proportionality review.
The State of Georgia should restrict death penalty cases to those where the
defendant is found guilty of malice murder, either express or implied.

While the Georgia Death Penalty Assessment Team has recommended these reforms, the
American Bar Association has not adopted policies on the issues discussed in
recommendations #2 and 3.
B. Recommendation #2
Each prosecutor’s office should establish procedures and policies for
evaluating cases that rely upon eyewitness identification, confessions, or the
testimony of jailhouse snitches, informants, and other witnesses who receive
a benefit.

The State of Georgia has, by court opinion and by statute, established certain trial
procedures relevant to the reliability and/or admissibility of eyewitness identifications
and expert testimony on eyewitness identifications. Recently, the Georgia Supreme
Court held that the “admission of expert testimony regarding eyewitness identification is
in the discretion of the trial court.” 83 Similarly, the Georgia Supreme Court has found
that the Georgia Suggested Pattern Jury Instruction providing juries with factors to
consider when determining the reliability of an eyewitness’ identification84 “should be

83

Johnson v. State, 526 S.E.2d 549, 552 (Ga. 2000). Georgia case law previously provided that “[t]he
determination of a witness’ credibility, including the accuracy of eyewitness identification, [was] within the
exclusive province of the jury.” Norris v. State, 376 S.E.2d 653, 654 (Ga. 1989). Thus, Georgia law,
previous to Johnson, stated that expert testimony regarding the credibility and accuracy of eyewitness
identification is generally inadmissible, except when it concerns organic or mental disorders or some
impairment of the mental or physical faculties of the eyewitness. See Jones v. State, 208 S.E.2d 850, 853
(Ga. 1974). Expert testimony regarding eyewitness credibility would, therefore, generally have been
excluded because the subject matter is normally within the scope of the ordinary layman’s knowledge,
which left cross examination as the primary medium to attack the eyewitness’s credibility. Id.; cf. Loomis
v. State, 51 S.E.2d 33 (Ga. 1948); Goodwyn v. Goodwyn, 20 Ga. 600 (Ga. 1856).
84
GA. SUGGESTED P ATTERN JURY INSTRUCTIONS, V OL. II (C RIMINAL C ASES ) § 206.00(1) (3d ed. 2003).
The text of the instruction is as follows:
Identity is a question of fact for determination by the jury. It is dependent upon the
credibility of the witness or witnesses offered for this purpose, and you have the right to
consider all of the factors previously charged you regarding credibility of witnesses.
Some, but not all, of the factors you may consider, in assessing reliability of
identification, are:
a.
b.
c.

The opportunity of the witness to view the alleged perpetrator at the time of the
alleged incident;
The witness's degree of attention toward the alleged perpetrator at the time of the
alleged incident;
The level of certainty shown by the witness about his/her identification;

124

given when testimony warrants,”85 such as when there has been an identification prior to
trial and identity of the perpetrator is a central issue in the jury trial.86
Additionally, the State of Georgia has established trial procedures on the sufficiency of
uncorroborated witness testimony and confessions. The testimony of a single witness is
not sufficient to establish a fact in cases involving “prosecutions for treason, prosecutions
for perjury, and felony cases where the only witness is an accomplice . . . . Nevertheless,
corroborating circumstances may dispense with the necessity for the testimony of a
second witness, except in prosecutions for treason.” 87 Similarly, “[a] confession alone,
uncorroborated by any other evidence, shall not justify a conviction.” 88
Because, however, the State of Georgia does not require district attorney’s offices to
establish procedures and polices for evaluating cases that rely upon eyewitness
identification, confessions, or the testimony of jailhouse snitches, informants, and other
witnesses who receive a benefit, the State of Georgia is not in compliance with
Recommendation #2. We note that we were unable to ascertain whether each district
attorney’s office has established procedures and policies for evaluating cases that rely
upon eyewitness identification, confessions, or the testimony of jailhouse snitches,
informants, and other witnesses who receive a benefit.
C. Recommendation #3
Prosecutors should fully and timely comply with all legal, professional, and
ethical obligations to disclose to the defense information, documents, and
tangible objects and should permit reasonable inspection, copying, testing,
and photographing of such disclosed documents and tangible objects.

Georgia law requires prosecutors to comply with a number of specific discovery
requirements. In cases in which the defendant opts to participate in “reciprocal
discovery,” prosecutors are required, no later than ten days prior to trial or as otherwise
ordered by the court, to disclose, furnish and/or permit the defendant to inspect, copy, or
photograph certain types of evidence that are within the possession, custody, or control of
the state or prosecution, including but not limited to statements made by the defendant;

d.
e.
f.

The possibility of mistaken identity;
Whether the witness's identification may have been influenced by factors other than
the view that the witness claimed to have; [and]
Whether the witness, on any prior occasion, did not identify the defendant in this
case as the alleged perpetrator.

Id.
85
86
87
88

Brodes v. State, 614 S.E.2d 766, 769 n.6 (Ga. 2005).
Id. (citing to Robinson v. State, 754 A.2d 1153 (N.J. 2000)).
O.C.G.A. § 24-4-8 (2005).
O.C.G.A. § 24-3-53 (2005).

125

books, papers, documents, photographs, and tangible objects; and a report of any physical
or mental examinations.89
On the other hand, in cases in which the defendant does not elect to participate in
“reciprocal discovery,” the defendant is entitled only to the discovery afforded “by the
Georgia and United States Constitutions, statutory exceptions to the Act, and nonconflicting rules of court.”90 This includes but is not limited to a list of witnesses from
the grand jury, Brady material, pre-trial examination of known handwriting samples, and
records under the Open Records Act.91 It does not, however, include discovery of the
state’s scientific reports, scientific work product, or trial witness lists.92
Regardless of whether the defendant opts to participate in reciprocal discovery, the
Georgia Rules of Professional Conduct require all prosecutors to disclose to the defense
all evidence or information known to the prosecutor that tends to negate the guilt of the
accused or that mitigates the offense.93
Based on this information, in cases in which the defendant opts to participate in
reciprocal discovery, the State of Georgia appears to provide the necessary framework to
allow prosecutors to fully and timely disclose information, documents, and tangible
objects to the defense and permits reasonable inspection, copying, testing, and
photographing of such disclosed documents or tangible objects. However, in cases in
which the defendant does not opt to participate in reciprocal discovery, it appears that the
evidence afforded to the defendant is extremely limited.
Additionally, despite the framework provided by the reciprocal discovery provisions,
state and federal law, and the Georgia Rules of Professional Conduct, it appears that
some prosecutors still occasionally fail to comply with the discovery requirements. For
example, prosecutors have failed to provide the defendant with information about
promises, deals, or agreements made with state witnesses;94 Georgia parole records;95 and
crime laboratory reports.96

89

O.C.G.A. §§ 17-16-1 to -10 (2005).
See State v. Lucious, 518 S.E.2d 677, 679 (Ga. 1999).
91
Blevins v. State, 606 S.E.2d 624, 628 (Ga. Ct. App. 2004); Lucious, 518 S.E.2d at 684-85 (Fletcher, J.,
concurring in part and dissenting in part).
92
Lucious, 518 S.E.2d at 681-82.
93
GA.
RULES
OF
P ROF’L
C ONDUCT
R.
3.8,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_38_special_responsibilities_of_a_prosecutor/ (last visited on
Jan. 5, 2006).
94
Schofield v. Palmer, 621 S.E.2d 726, 730 (Ga. 2005); Dinning v. State, 470 S.E.2d 431, 434-35 (Ga.
1996).
95
Head v. Stripling, 590 S.E.2d 122, 126-28 (Ga. 2003).
96
Nelson v. Zant, 405 S.E.2d 250, 252 (Ga. 1991) (dealing with FBI crime laboratory reports); Harridge
v. State, 534 S.E.2d 113, 115-117 (Ga. Ct. App. 2000) (dealing with Georgia Bureau of Investigation crime
laboratory reports).
90

126

Although many prosecutors fully and timely comply with all legal, professional, and
ethical obligations to disclose evidence, this is not always the case. We, therefore,
conclude that the State of Georgia is only in partial compliance with Recommendation
#3.
D. Recommendation #4
Each jurisdiction should establish policies and procedures to ensure that
prosecutors and others under the control or direction of prosecutors who
engage in misconduct of any kind are appropriately disciplined, that any
such misconduct is disclosed to the criminal defendant in whose case it
occurred, and that the prejudicial impact of any such misconduct is
remedied.

The State of Georgia has entrusted the State Bar of Georgia with investigating grievances
and disciplining members of the State Bar.97 These powers are vested in the State
Disciplinary Board,98 which is composed of the Investigative Panel and the Review
Panel, and a Consumer Assistance Program.99 The Investigative Panel has the authority
to initiate grievances on its own, but also is required to receive and evaluate grievances
against State Bar members.100 All attorneys, including prosecutors, are also required to
report any violation of the Georgia Rules of Professional Conduct that “raises a
substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in
other respects.”101 All grievances other than those initiated by the Georgia Supreme
Court, the Investigative Panel, or inquiries that may be filed with the Consumer
Assistance Program must be first filed with the Office of the General Counsel of the State
Bar, which has the authority to screen grievances to determine whether they are
“unjustified, frivolous, patently unfounded or fail[] to state facts sufficient to invoke
disciplinary jurisdiction of the State Bar of Georgia.” 102

97

See
GA.
R ULES
OF
P ROF ’L
CONDUCT
R.
4-201,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/4-201_state_disciplinary_board/ (last visited on Dec. 30, 2005).
98
See id.
99
Id.
100
GA.
R ULES
OF
P ROF’ L
CONDUCT
R.
4-202,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_4202_receipt_of_grievances_initial_review_by_bar_counsel/ (last visited on Dec. 30, 2005).
101
GA.
RULES
OF
P ROF’L
C ONDUCT
R.
8.3,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_83_reporting_professional_misconduct/ (last visited on Jan.
5, 2006).
102
GA.
R ULES
OF
P ROF’ L
CONDUCT
R.
4-202,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_4202_receipt_of_grievances_initial_review_by_bar_counsel/ (last visited on Dec. 30, 2005).

127

Since 1986, only one prosecutor has been disbarred and another has been suspended, and
no grievances alleging a violation of the Georgia Rules of Professional Conduct by a
prosecutor for actions taken in his/her official capacity have been referred to the State
Bar’s Investigative Panel.103 The latter figure, however, does not include grievances that
were screened out by the State Bar’s Office of the General Counsel104 as “unjustified,
frivolous, patently unfounded or fail[ing] to state facts sufficient to invoke the
disciplinary jurisdiction of the State Bar of Georgia.”105
The lack of disciplinary action taken by the State Bar of Georgia notwithstanding, the
Center for Public Integrity’s study of Georgia criminal appeals, including both death and
non-death cases, from 1970 to the present revealed 449 Georgia cases in which the
defendant alleged prosecutorial error or misconduct.106 “In 39 [of the 449 cases], judges
ruled [that the] prosecutor’s conduct prejudiced the defendant” and remedied the
misconduct by reversing or remanding the conviction, sentence, or indictment.107 “Of the
cases in which judges ruled a prosecutor’s conduct prejudiced the defendant, [twentyfour] involved improper trial behavior, six involved discrimination in jury selection, six
involved withholding evidence from the defense, one involved goading the defendant into
a mistrial, one involved pre-trial tactics and one involved knowingly using false
testimony.”108
In the majority of the cases in which the defendant alleged prosecutorial misconduct (337
out of the 449), however, the prosecutor’s conduct or error was found to be harmless.109
Errors which Georgia courts have found to be harmless based on the facts of the case
include but are not limited to: (1) prosecutor’s reference to future dangerousness during
closing arguments in the guilt/innocence phase;110 (2) prosecutor’s reference to
defendant’s pre-trial silence; 111 (3) prosecutor’s reference to defendant’s failure to testify

103

Email from Chuck Olson, General Counsel, Prosecuting Attorneys’ Council, to Anne Emanuel,
Associate Dean for Academic Affairs and Professor of Law, Georgia State University College of Law (Oct.
11, 2005) (on file with author); see also STATE BAR OF GA., RULES OF CONDUCT & PROCEDURE OF THE
INVESTIGATIVE P ANEL S TATE DISCIPLINARY B OARD, at http://www.gabar.org/handbook/internal_rules__investigative_panel/ (last visited on Jan. 5, 2006).
104
According to the State Bar of Georgia’s website, “[t]he State Bar of Georgia’s Office of the General
Counsel serves as the Court’s arm to investigate and prosecute claims that a lawyer has violated the ethics
rules.” See State Bar of Georgia, Ethics, at http://www.gabar.org/ethics/ (last visited on Jan. 5, 2006).
105
Email from Chuck Olson, General Counsel, Prosecuting Attorneys’ Council, to Anne Emanuel,
Associate Dean for Academic Affairs and Professor of Law, Georgia State University College of Law (Oct.
11, 2005) (on file with author).
106
Center
for
Public
Integrity,
In
Your
State:
Georgia,
at
http://www.publicintegrity.org/pm/states.aspx?st=GA (last visited on Jan. 5, 2006).
107
Id.
108
Id.
109
Center
for
Public
Integrity,
Nationwide
Numbers,
at
http://www.publicintegrity.org/pm/search.aspx?act=nat&hID=y (last visited on Jan. 5, 2006).
110
McClain v. State, 477 S.E.2d 814, 821-822 (Ga. 1996); see also Wyatt v. State, 485 S.E.2d 470, 47475 (Ga. 1997); Cherry v. State, 496 S.E.2d 764, 768 (Ga. Ct. App. 1998).
111
Henry v. State, 604 S.E.2d 469, 472 (Ga. 2004).

128

at trial;112 (4) prosecutor’s failure to disclose audiotape conversations of an agreement
made between a police officer and a witness.113
Although the State of Georgia, through the State Bar, has established a procedure by
which grievances are investigated and members of the State Bar are disciplined, the
procedure’s effectiveness is questionable given the non-existent number of grievances
made or initiated against prosecutors combined with the small number of cases in which
judges have found that the prosecutor’s conduct prejudiced the defendant. Based on this
information, the State of Georgia is only in partial compliance with Recommendation #4.
E. Recommendation #5
Prosecutors should ensure that law enforcement agencies, laboratories, and
other experts under their direction or control are aware of and comply with
their obligation to inform prosecutors about potentially exculpatory or
mitigating evidence.

The Georgia Supreme Court, relying on precedent from the United States Supreme Court,
has found that a prosecutor is required to disclose evidence of which s/he is aware as well
as “favorable evidence known to others acting on the government’s behalf,” even if the
prosecutor is not personally aware of its existence.114 Given that a prosecutor is
responsible for disclosing favorable evidence that s/he is not personally aware of but is
known to others acting on the government’s behalf (i.e., law enforcement officers), it is in
the best interest of all prosecutors to ensure that law enforcement agencies, laboratories,
and other experts under their direction or control are aware of and comply with their
obligation to inform prosecutors about potentially exculpatory or mitigation evidence.
We are, however, aware of one instance in which the relevant police agency failed to
disclose material evidence to the prosecutor. 115 This information is insufficient to draw
any conclusions as to whether all prosecutors are meeting or failing to meet
Recommendation # 5.
F. Recommendation #6
The jurisdiction should provide funds for the effective training, professional
development, and continuing education of all members of the prosecution
team, including training relevant to capital prosecutions.

The State of Georgia has established the Prosecuting Attorneys’ Council (PAC) to “assist
the prosecuting attorneys throughout the state in their efforts against criminal activity in

112

Raheem v. State, 560 S.E.2d 680, 685 (Ga. 2002).
Owen v. State, 453 S.E.2d 728, 730-31 (Ga. 1995).
114
Kyles v. Whitley, 514 U.S. 419, 437-39 (1995); Schofield v. Palmer, 621 S.E.2d 726, 730-31 (Ga.
2005).
115
See, e.g., Palmer, 621 S.E.2d at 726.
113

129

the state.”116 PAC “offers general and specialized Georgia State Bar CLE-accredited
training courses for the professional development needs of Georgia prosecutors as they
progress through their careers as public attorneys.” 117 Two out of every three years, PAC
offers a course on capital litigation (i.e., 2005 Winter Conference).118 PAC also provides
training to investigators and key personnel to equip them with “specific job-related skills
that are essential for competency and proficiency.”119 Based on this information, the
State of Georgia is in compliance with Recommendation #6.

116

O.C.G.A. § 15-18-40(b) (2005); Prosecuting Attorneys’ Council, Council Members, at
http://www.pacga.org/about/council.shtml (last visited on Jan. 5, 2005) (including the names, titles, and email addresses for all nine council members).
117
Prosecuting Attorneys’ Council, Training, at http://www.pacga.org/departments/training.shtml (last
visited on Dec. 27, 2005).
118
E-mail Interview with Richard Malone, Executive Director, Prosecuting Attorneys’ Council, and Joe
Burford, Director of Trial Support, Prosecuting Attorneys’ Council (April 14, 2005); see, e.g., Prosecuting
Attorneys’ Council, 2005 Winter Conference and 2005 Introduction to Drug Prosecution Course, AfterReport and Photo Gallery, at http://www.pacga.org/training/2005_wc_photo_gallery.htm (last visited on
Jan. 5, 2006).
119
Prosecuting Attorneys’ Council, Training, at http://www.pacga.org/departments/training.shtml (last
visited on Jan. 5, 2006); see also O.C.G.A. § 15-18-45(a) (2005) (stating that PAC is “authorized to
conduct or approve for credit or reimbursement, or both, basic and continuing legal education courses or
other appropriate training programs for the district attorneys, solicitors-general, and other prosecuting
attorneys of this state and the members of the staffs of such officials”); Prosecuting Attorneys’ Council,
2005 Winter Conference and 2005 Introduction to Drug Prosecution Course, After-Report and Photo
Gallery, at http://www.pacga.org/training/2005_wc_photo_gallery.htm (last visited on Jan. 5, 2006)
(stating that “[t]he second day of the conference was devoted to specialized tracks for District Attorneys,
Solicitors and Investigators. . . . members of the Lookout Mountain and Clayton Judicial Circuits discussed
Interviewing a Witness for Trial on the investigator’s track. Investigators were also treated to Jerry Scott of
the GBI who debunked many of the common myths about crime scene investigation.”).

130

CHAPTER SIX
DEFENSE SERVICES
INTRODUCTION TO THE ISSUE
Defense counsel competency is perhaps the most critical factor determining whether a
capital offender/defendant will receive the death penalty.
Although anecdotes about
inadequate defenses long have been part of trial court lore, a comprehensive 2000 study
shows definitively that poor representation has been a major cause of serious errors in
capital cases as well as a major factor in the wrongful conviction and sentencing to death
of innocent defendants..
Effective capital case representation requires substantial specialized training and some
experience in the complex laws and procedures that govern a capital case in a given
jurisdiction, as well as the resources to conduct a complete and independent investigation
in a timely way. Full and fair compensation to the lawyers who undertake such cases
also is essential, as is proper funding for experts.
Under current case law, a constitutional violation of the Sixth Amendment right to
effective assistance of counsel is established by a showing that the representation was not
only deficient but also prejudicial to the defendant—i.e., there must be a reasonable
probability that, but for the defense counsel’s errors, the result of the proceeding would
have been different.1 The 2000 study found that between 1973 and 1995, state and
federal courts undertaking reviews of capital cases identified sufficiently serious errors to
require retrials or re-sentencing in 68 percent of the cases reviewed.2 In many of those
cases, more effective trial counsel might have helped avert the constitutional errors at
trial that led ultimately to relief.
In the majority of capital cases, however, defendants lack the means to hire lawyers with
the knowledge and resources to develop effective defenses.
The lives of these
defendants often rest with new or incompetent court-appointed lawyers or overburdened
public defender services provided by the state.
Although lawyers and the organized bar have provided, and will continue to provide, pro
bono representation in capital cases, most pro bono representation is limited to postconviction proceedings. Only the jurisdictions themselves can address counsel
representation issues in a way that will ensure that all capital defendants receive effective
representation at all stages of their cases. Jurisdictions that authorize capital punishment
therefore have the primary—and constitutionally mandated—responsibility for ensuring

1

Strickland v. Washington, 466 U.S. 668 (1984).
JAMES S. L IEBMAN ET AL., A B ROKEN S YSTEM: ERROR RATES IN C APITAL C ASES, 1973-1995 (2000),
available at http://ccjr.policy.net/cjedfund/jpreport/finrep.PDF (last visited on Jan. 6, 2006).
2

131

adequate representation of capital defendants through appropriate appointment
procedures, training programs, and compensation measures.

132

I. FACTUAL DISCUSSION
Georgia’s system for providing legal representation to indigent defendants was recently
overhauled with the adoption of the “Georgia Indigent Defense Act of 2003” (Indigent
Defense Act),3 which largely became effective on January 1, 2005.4 The adoption of the
Indigent Defense Act followed the release of the Report of the Chief Justice’s
Commission on Indigent Defense (Commission), which was established by the Georgia
Supreme Court to “study the status of indigent defense in Georgia, to develop a strategic
plan and to set a timetable for its implementation.”5 The Commission studied the status
of indigent defense in Georgia by conducting seventeen public sessions at which it heard
suggestions on improvements to the indigent defense system, by visiting two of
Georgia’s judicial districts to observe court proceedings, and by commissioning the
Spangenberg Group6 to conduct a study concerning the operation of indigent defense in
Georgia.7
The Spangenberg Group’s study focused on nineteen of Georgia’s 159 counties, which
were selected to be representative of Georgia’s ten judicial districts, geography and
population, and to reflect a diversity of delivery systems.8 The study resulted in over
3

The Indigent Defense Act was adopted on May 22, 2003 and codified at sections 17-12-1 through 1712-128 of the O.C.G.A. See 2003 Ga. Laws 32 (H.B. 770). Prior to the adoption of the Indigent Defense
Act, the Georgia Indigent Defense Council (GIDC) was responsible for the administration of state and local
funds to support local programs, such as a local tripartite governing committee, which was responsible for
establishing and managing a state-funded local indigent defense program for a county or a set of counties.
See R EPORT OF THE G EORGIA S UPREME C OURT C HIEF JUSTICE’S C OMMISSION ON INDIGENT DEFENSE 32-34
(2002)
[hereinafter
C OMMISSION
R EPORT],
available
at
http://www.georgiacourts.org/aoc/press/idc/idchearings/idcreport.doc (last visited on Oct. 26, 2005). Each
of Georgia’s 159 counties (or the local tripartite governing committee within the county) adopted one or
more of the three methods of delivering legal services to indigent criminal defendants: (1) panel system; (2)
contract system; and (3) public defender system. Id. at 35. For example, “[r]epresentation of capital
defendants in DeKalb and Houston counties [was] provided by the public defender office and panel
attorneys. In Fulton County, the Conflict Defender takes up to two death penalty cases a year, and panel
attorneys handle[d] the balance.” See STATUS OF I NDIGENT DEFENSE IN GEORGIA: A STUDY FOR THE C HIEF
JUSTICE’ S COMMISSION ON INDIGENT DEFENSE, pt. 1, at 58 (2002) [hereinafter SPANGENBERG REPORT ],
available at http://www.georgiacourts.org/aoc/press/idc/idchearings/spangenberg.doc (last visited on Oct.
26, 2005); see also S OUTHERN CENTER FOR H UMAN RIGHTS , “IF Y OU CANNOT AFFORD A LAWYER . . .”: A
REPORT ON GEORGIA’ S FAILED I NDIGENT DEFENSE SYSTEM (2003),
available at
http://www.schr.org/reports/docs/jan.%202003.%20report.pdf (last visited Oct. 26, 2005); SOUTHERN
CENTER FOR HUMAN R IGHTS, P ROMISES TO KEEP: ACHIEVING F AIRNESS AND E QUAL JUSTICE FOR THE P OOR
IN CRIMINAL CASES (2000), available at http://www.schr.org/reports/docs/IndigentRpt.pdf (last visited on
Oct. 26, 2005).
4
See O.C.G.A. 17-12-13 (2005) (stating that portions of the Act pertaining to the Georgia Public
Defender Standards Council “shall become effective on December 31, 2003,” except section 17-12-3,
which became effective on July 1, 2003, for the purpose of making the initial appointments to the council).
5
COMMISSION REPORT , supra note 3.
6
The Spangenberg Group is a nationally recognized research and consulting firm specializing in
improving justice programs. See Spangenberg Group, at http://www.spangenberggroup.com/index.html
(last visited on Oct. 26, 2005).
7
COMMISSION REPORT , supra note 3.
8
SPANGENBERG REPORT , supra note 3, at 3.

133

thirty “black letter findings” on the state of Georgia’s indigent legal representation
system.9
Based on the Spangenberg study and the Commission’s own research, the Commission
found that “the right to counsel guaranteed by the state and federal constitutions is not
being provided for all of Georgia’s citizens.”10 The Commission attributed this failure to
two main factors:
1.

2.

The State of Georgia is not providing adequate funding to fulfill the
constitutional mandate that all citizens have effective assistance of counsel
available when charged with a crime;11 and
The State of Georgia lacks a statewide system of accountability and
oversight to provide constitutionally adequate assistance of counsel for
indigent defendants.12

The Indigent Defense Act attempts to address these factors by providing for a statefunded indigent legal representation system that is comprised of public defender offices

9

Id. at 91-104. The “black letter findings,” included, but were not limited to the following:
1. A lack of program oversight and insufficient funding are the two chief problems underlying a
complete absence of uniformity in the administration of and quality of indigent defense services
throughout the 19 Georgia counties we studied.
2. In most of Georgia’s local indigent defense programs, there are few mechanisms in place to
guarantee that defense lawyers are consistently held accountable for the quality of representation
they provide to indigent defendants.
3. There is no effective statewide advocate for indigent defense in Georgia.
4. Major problems were found surrounding requests for investigators or expert witnesses.
5. Georgia lacks a systematic approach to identifying and assisting indigent defendants who suffer
from mental illness.
6. There is an imbalance of resources between prosecution and indigent defense in Georgia.
7. In most of the counties we visited, there are no minimum eligibility criteria for attorneys who wish
to accept court-appointed cases.
8. In the majority of counties we visited, there are no requirements that attorneys taking courtappointed cases participate in continuing legal education programs in criminal law.
9. Georgia is the only state in the country that does not provide a right to counsel in capital postconviction (habeas corpus) cases.
10. There is a lack of reliable and comprehensive statewide data on indigent defense in Georgia.

Id.
10

COMMISSION REPORT , supra note 3, at 3.
Id. (referencing the Spangenberg Report which found that “none of the 19 counties [it studied]
provided sufficient funds to assure quality representation to all indigent defendants”).
12
Id. (noting that the Spangenberg Report found that “the GIDC, despite what might be seen as its
statutory mandate, has not been an effective statewide advocate for the cause of indigent defense in the
State and has not been able to monitor compliance with the Supreme Court’s Guidelines on indigent
defense”); see also “I F YOU C ANNOT AFFORD A LAWYER . . .”, supra note 3, at 51 (stating “[i]n many
counties the tripartite committee exists only on paper and uncompensated tripartite committee members do
not have the time, inclination, or expertise to monitor the quality of representation provided by contract
defenders, court-appointed lawyers, and public defenders”).
11

134

in each of the state’s judicial circuits,13 the Office of Mental Health Advocacy,14 and the
Office of the Georgia Capital Defender.15 This system is overseen by the Georgia Public
Defender Standards Council.16 These changes to Georgia’s indigent legal representation
system, however, only apply to indigent defendants tried after the Indigent Defense Act’s
effective date of January 1, 2005. Therefore, defendants sentenced to death before
January 1, 2005 did not have the benefit of this new indigent system.
A. Georgia’s Indigent Legal Representation System
1. The Georgia Public Defender Standards Council
The Georgia Public Defender Standards Council (GPDSC), created on December 31,
2003 by the Indigent Defense Act,17 is an independent agency within the judicial branch18
charged with “assuring that adequate and effective legal representation is provided,
independently of political considerations or private interests, to indigent persons who are
entitled to representation.”19
a. The Composition of the Georgia Public Defender Standards Council and
the Georgia Public Defender Standards Council’s Director
The GPDSC is composed of eleven members;20 one of the members must be a circuit
court public defender21 and the remaining must represent each of the ten judicial districts
in the state.22 All GPDSC member positions, except the circuit court public defender
position, are filled by appointment for a term of four years.23 The circuit court public
defender position must be filled by a majority vote of all circuit court public defenders

13

O.C.G.A. § 17-12-20 (2005).
O.C.G.A. § 17-12-81 (2005). The Office of the Mental Health Advocate (OMHA) monitors cases in
Georgia involving pleas of “not guilty by reason of insanity,” and it has the right to assume the defense and
representation of any indigent defendant found to be “not guilty by reason of insanity” if the resources,
funding, and staffing of the office allow. See O.C.G.A. § 17-12-87 (2005). However, the attorney who
represented the defendant at trial has the option to retain responsibility of the case. Id.
15
O.C.G.A. § 17-12-121 (2005).
16
O.C.G.A. §§ 17-12-1 through 17-12-13 (2005).
17
O.C.G.A. § 17-12-11 (2005) (noting that on “December 31, 2003, the Georgia Public Defender
Standards Council shall assume all powers, duties, and obligations of the Georgia Indigent Defense
Council”).
18
O.C.G.A. § 17-12-1(b) (2005).
19
O.C.G.A. § 17-12-1(c) (2005).
20
O.C.G.A. § 17-12-3 (a) (2005). All of the GPDSC members were initially appointed to the GPDSC on
July 1, 2003. See O.C.G.A. § 17-12-3(b)(4) (2005).
21
O.C.G.A. § 17-12-3(b)(3)-(4) (2005) (noting that the initial circuit court public defender position on
the GPDSC will be filled by appointment by the Georgia Supreme Court).
22
O.C.G.A. § 17-12-3(b)(2) (2005).
23
O.C.G.A. § 17-12-3(b)(1) (2005) (indicating that each individual may appoint two Council members);
O.C.G.A. § 17-12-3(b)(2) (2005) (including the rotation schedule for the appointment of Council
members).
14

135

for a term of two years.24 All GPDSC members are required to “be individuals with
significant experience working in the criminal justice system or who have demonstrated a
strong commitment to the provision of adequate and effective representation of indigent
defendants.”25 The GPDSC is responsible for appointing a director with similar
qualifications who will serve at the pleasure of the GPDSC.26
b. Duties of the Georgia Public Defender Standards Council
In an effort to assure that “adequate and effective legal representation” is provided to
entitled indigent persons, the GPDSC is responsible for the following:
1.
2.

3.

Assisting public defenders throughout the state;27
Approving and implementing programs, services, rules, policies,
procedures, regulations, and standards pertaining to indigent
representation, including standards for qualifications and performance of
counsel representing indigent persons in capital cases;28 and
Conducting or approving for credit or reimbursement, or both, basic and
continuing legal education courses for circuit court public defenders and
the staff.29

The GPDSC is required to approve and implement the following standards:
1.

2.

3.

24
25
26
27

Standards for maintaining and operating circuit defender offices, including
requirements regarding qualifications, training, and size of the legal and
supporting staff of such offices;
Standards prescribing minimum experience, training, and other
qualifications for appointed counsel where a conflict of interest arises
between the public defender and an indigent person;
Standards for assistant public defender and appointed counsel caseloads;

O.C.G.A. § 17-12-3(b)(3) (2005).
O.C.G.A. § 17-12-3(b)(1) (2005).
See O.C.G.A. § 17-12-5(a) (2005).
O.C.G.A. § 17-12-6(a) (2005). The GPDSC may assist public defenders throughout the state by:
1.
2.
3.
4.
5.

Preparing and distributing basic defense manuals and other educational materials;
Preparing and distributing model forms and documents employed in indigent defense;
Promoting and assisting in the training of indigent defense attorneys;
Providing legal research assistance to public defenders; and
Providing any other assistance to public defenders as may be authorized by the law.

Id.
28

O.C.G.A. § 17-12-8(b) (2005); see also G A. P UB. DEFENDER S TANDARDS COUNCIL , BYLAWS , art. 2, §
2.3(a) [GPDSC BYLAWS ], available at http://www.gpdsc.com/aboutus-council-bylaws_updated.pdf (last
visited on Oct. 26, 2005) (including procedures applicable to any standards adopted by the GPDSC).
29
O.C.G.A. § 17-12-9 (2005).

136

4.
5.

6.

7.
8.
9.
10.
11.
12.

Standards for the performance of assistance public defenders and
appointed counsel representing indigent persons;
Standards and procedures for the appointment of independent, competent,
and efficient counsel for representation in both the trial and appellate
courts of indigent persons whose cases present a conflict of interest;
Standards for providing and compensating experts, investigators, and other
persons who provide services necessary for the effective representation of
indigent persons;
Standards for qualifications and performance of counsel representing
indigent persons in capital cases;
Standards for determining indigence and for assessing and collecting the
costs of legal representation and related services;
Standards for compensation of attorneys appointed to represent indigent
persons;
Standards for removing a circuit public defender for cause pursuant to
section 17-12-20 of the O.C.G.A.;
Standards for a uniform definition of a “case” for purposes of determining
caseload statistics; and
Standards for accepting contractual indigent defense representation.30

All standards promulgated by the GPDSC must be publicly available for review,31 posted
on the GPDSC’s website,32 and reviewed by the General Oversight Committee for the
GPDSC,33 which is composed of eight members of the General Assembly. 34 All
standards determined by the General Oversight Committee to have a “fiscal impact” will
become effective only when ratified by joint resolution of the General Assembly and
upon approval of the resolution by the Governor or upon its becoming law without
his/her approval.35 All standards must identify the date upon which the standard took
effect and, if the standard is subject to ratification by the General Assembly, the status of
the standard with respect to ratification.36
2. Circuit Public Defenders

30

See O.C.G.A. § 17-12-8(b)(1)-(12) (2005).
See O.C.G.A. § 17-12-8(d) (2005); see also GPDSC B YLAWS, supra note 28, at art. 2, § 2.3(a)
(discussing in detail the notice and comment period for GPDSC standards).
32
See O.C.G.A. § 17-12-8(d) (2005).
33
O.C.G.A. § 17-12-8(c) (2005).
34
O.C.G.A § 17-12-10.1(a) (2005). The General Oversight Committee for the GPDSC is composed of
three members of the House of Representatives appointed by the Speaker of the House of Representatives,
three members of the Senate appointed by the Senate Committee on Assignments or such person or entity
as established by Senate rule, and one member of the House of Representatives and one member of the
Senate appointed by Governor. Id. The Committee is charged with making annual reports of “its activities
and findings” to the General Assembly and the Governor. See O.C.G.A. § 17-12-10.1(f) (2005).
35
O.C.G.A. § 17-12-8(c) (2005).
36
O.C.G.A. § 17-12-8(d) (2005).
31

137

The State of Georgia is divided into forty-nine judicial circuits.37 Within each judicial
circuit, there exists a “Circuit Public Defender Selection Panel”38 responsible for
appointing the circuit’s public defender.39 To date, the selection panels in forty-four of
the forty-nine judicial circuits have appointed circuit public defenders.40 Four of the
forty-nine judicial circuits,41 however, have obtained approval by the GPDSC to “optout” of the state indigent legal representation system, meaning that these counties
continue to provide an alternative delivery system to the state system.42
In all judicial circuits, apart from those that have opted out of the statewide system, the
circuit public defender is charged with overseeing the circuit public defender office
within his/her circuit. Each circuit public defender office is charged with providing
representation to indigent persons in the following actions and proceedings:
1.

2.
3.
4.

Any case prosecuted in a superior court under the laws of the State of
Georgia in which there is a possibility that a sentence of imprisonment or
probation or a suspended sentence of imprisonment may be adjudged;
A hearing on a revocation of probation in a superior court;
Any juvenile court case where the juvenile may face a disposition of
confinement, commitment, or probation; and
Any direct appeal of any of the proceedings enumerated in 1 through 3.43

Neither the circuit public defenders offices nor the alternative delivery systems may
provide representation to indigent persons charged with a capital felony for which the
death penalty is being sought.44 These cases are handled by the Office of the Georgia
Capital Defender.

37

Judicial
Branch
of
Georgia,
Administrative
Office
of
the
Courts,
at
http://www.georgiacourts.org/courts/ (last visited on Oct. 26, 2005).
38
Each Circuit Public Defender Selection Panel is composed of five members. See O.C.G.A. § 17-1220(a) (2005). The Governor, Lieutenant Governor, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court of Georgia, and the Chief Judge of the superior court of the circuit are each
responsible for appointing one member to each Circuit Public Defender Selection Panel. Id. Appointed
members must be individuals with significant experience in the criminal justice system and must reside in
the judicial circuit in which they serve. Id.
39
O.C.G.A. § 17-12-20(b) (2005). To be eligible to be a circuit public defender, a person must: (1) Have
attained the age of 25; (2) Have been duly admitted and licensed to practice law in the superior courts for at
least three years; (3) Be a member in good standing of the State Bar of Georgia; and (4) If previously
disbarred, have been reinstated as provided by law. See O.C.G.A. § 17-12-21 (2005).
40
Georgia Public Defender Standards Council, Office Locations, at http://www.gidc.com/cpdsystemoffice_locations.htm (last visited on Oct. 26, 2005).
41
The four judicial circuits are: Cobb, Douglas, Gwinnett, and Houston. See id.
42
See id.
43
O.C.G.A. § 17-12-23(a) (2005); see also O.C.G.A. § 17-12-23(b) (2005) (stating that entitlement to the
services of counsel “begins as soon as is feasible and no more than 72 hours after the indigent person is
taken into custody or service is made upon him or her of the charge, petition, notice, or other initiating
process”).
44
See O.C.G.A. § 17-12-121 (2005) (noting that “[t]he office shall serve all counties of this state”).

138

3. The Office of the Georgia Capital Defender
The Office of the Georgia Capital Defender (GCD), established in January 1, 2005,45 is
responsible for “undertak[ing] the defense of all indigent persons charged with a capital
felony for which the death penalty is being sought in any court in this state,” except in
cases of a conflict of interest.46
The GCD is overseen by the Capital Defender, who is appointed by and “shall serve at
the pleasure” of the GPDSC.47 The GPDSC is also responsible for the overall
management of the office including but not limited to: (1) establishing the salaries of the
capital defender and the office staff; (2) approving the level of staffing of the office; (3)
establishing the office policies; and (4) preparing the office’s annual budget,
administering the funds made available to the office, and overseeing the expenditure of
the funds.48 The Capital Defender is, however, responsible for hiring, with the advice
and consent of the GPDSC, as many assistant attorneys, clerks, investigators,
paraprofessionals, administrative assistants, and other personnel as may be necessary. 49
a. Georgia Capital Defender Budget for GCD and Conflict Attorneys
Based on a projection of forty death penalty cases per year, the GCD budget includes
salaries for ten attorneys to handle these cases.50 The budget also includes funds to handle
an additional nine conflict cases for a total of forty-nine cases per year. 51 For the conflict
cases, the GCD has set aside in the GCD budget approximately $360,000 per case--

45

Prior to the establishment of the GCD, the Multi-County Public Defender Office (MCPD) provided
assistance in death penalty cases. See Interview with Chris Adams, Georgia Capital Defender (May 20,
2005). At that time, the presiding judge in a capital case had the option to contact the MCPD to inquire
into whether it would provide representation, and the MCPD could accept or decline representation. Id. “In
2002, the Multi-County Public Defender’s Office opened files in 23 new death penalty cases. It also
provided consulting services in 87 cases in 35 different counties. Additionally, a total of 20 death penalty
cases were resolved by either negotiated pleas or jury trials.” See GA. INDIGENT D EFENSE COUNCIL, 2002
ANNUAL R EPORT 6 (2002), available at http://www.gpdsc.com/cpdsystem-reports-annual_report_2002.pdf
(last visited on Oct. 26, 2005). Similarly, in 2001, the MCPD provided direct representation or consultative
services in eighty-four cases in thirty-eight different counties. See SPANGENBERG REPORT, supra note 3, at
19. At that time, the MCPD was staffed by five attorneys, including the MCPD, four mitigation
specialists/investigators, one mental health specialist, one clerk, one tracking/statistics specialist, and one
administrative assistant. Id. Through its work, the MCPD became known for raising the level of capital
defense in the State of Georgia. Id. at 59.
46
O.C.G.A. § 17-12-121 (2005).
47
O.C.G.A. § 17-12-125 (2005) (stating that the capital defender must have been licensed to practice law
in the State of Georgia for at least five years and must be competent to counsel and defend a person
charged with a capital felony).
48
O.C.G.A. § 17-12-123 (2005).
49
O.C.G.A. § 17-12-126(a) (2005).
50
Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author).
51
Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author); Georgia
Public Defender Standards Council, Meeting Minutes (Aug. 22, 2003), at http://www.gpdsc.com/aboutuscouncil-minutes-minutes_08-22-03%20.pdf (last visited on Oct. 26, 2005).

139

$240,000 for attorneys fees and $120,000 for experts and investigation.52 However, as of
early December 2005, forty-seven capital prosecutions—thirty-five handled by GCD and
twelve handled by a conflict defender—had commenced.53 In addition to these new cases
beginning in 2005, there were also twelve capital cases already in the trial stage in which
the GCD represents the defendant.54 These projections leave the GCD potentially
understaffed in its first year of operation.55
b. Compensation of Georgia Capital Defender Attorneys and Conflict
Attorneys56
The GCD consulted the State Merit System of Personnel Administration for an analysis
of workload in order to determine the compensation for GCD employees.57 The
approximate salary range for GCD attorneys is between $68,000 and $89,000 annually.58
In cases in which the GCD is unable to represent an indigent accused of a capital felony
for which the death penalty is being sought, the appointed counsel must be “paid with
state funds appropriated to the [GPDSC] for use by the [GCD].”59 To obtain payment,
appointed counsel must submit a certified copy of the court’s order of appointment, the
Death Notice, and a “Death Penalty Conflict Case Appointment Request and Application

52

Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author).
Id.; see also Georgia Public Defender Standards Council Legislative Oversight Committee, Meeting
Minutes (July 11, 2005), at http://www.gpdsc.com/aboutus-council-loc-0705.pdf (last visited Oct. 31,
2005) (noting that there could be as many as 65 death noticed cases).
54
Interview with Chris Adams, Georgia Capital Defender (May 20, 2005).
55
Id.; see also Georgia Public Defender Standards Council Legislative Oversight Committee, Meeting
Minutes (July 11, 2005), at http://www.gpdsc.com/aboutus-council-loc-0705.pdf (last visited Oct. 31,
2005).
56
Prior to the adoption of the Indigent Defense Act, a set rate for attorneys handling capital cases did not
exist. Rather, “[u]nder the Indigent Defense Guidelines and the Revised Unified Appeal, compensation for
panel attorneys appointed to capital cases [had to] be set at a higher rate than the rate in non-death penalty
cases,” but the rate varied from county to county. See S PANGENBERG REPORT , supra note 3, at 58. In
Dougherty County, attorneys handling death penalty cases [were] paid $65 an hour for out-of-court work
and $90 an hour for in-court work. In Cobb County, the county’s fee schedule call[ed] for appointed
counsel to be paid $75/hour in-court and $65/hour out-of-court with no maximum.” Id. In Baldwin
County, attorneys in death penalty cases “[were] not paid hourly rates but [were] instead paid a flat fee at
the end of a case determined by the judges based on the work performed.” Id. at 36. “In many counties
[the Spangenberg Group] heard repeated complaints by panel attorneys that their vouchers are routinely
reduced by the tripartite committee or the judges, often without explanation. Most counties offer some sort
of mechanism to appeal a reduction in voucher payment.” Id.; see also “I F YOU CANNOT AFFORD A LAWYER
. . .”, supra note 3, at 50 (stating “In Dekalb County, an experienced and highly regarded lawyer was
appointed to represent an indigent defendant in a death penalty case that lasted more than two years. She
conducted an intensive investigation, spent days arguing motions, took the case to trial, and put on more
than 50 defense witnesses. Seven months after the conclusion of the trial and without explanation, the
judge cut the lawyer’s fee request by approximately one-third.”).
57
Interview with Chris Adams, Georgia Capital Defender (May 20, 2005).
58
Id.
59
O.C.G.A. § 17-12-127(b) (2005).
53

140

for Vendor Number”60 to the GPDSC.61 Once these documents are processed, the
GPDSC will be able to process requests for payment.62 At the end of each month,
attorneys are required to submit a “Fee Claim Form”63 summarizing the time spent on the
case and an “Itemized Statement” detailing the time and activities billed in the tenths of
an hour.64 The attorneys are reimbursed at a rate of $125.00 per hour for work both in
and out of court.65
B. Appointment, Qualifications, Training and Resources Available to Attorneys
Handling Death Penalty Cases Covered by Georgia’s Indigent Legal
Representation System
1. Georgia Public Defender Standards Council’s Death Penalty Defense
Standards
Under the Georgia Public Defender Standards Council’s (GPDSC) authority to approve
and implement standards pertaining to indigent representation, the GPDSC adopted on
April 6, 2005, the ABA Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases (Guidelines) as the “GPDSC Death Penalty Defense
Standards.”66 The GPDSC adopted the Guidelines “in full except in the rare occasion
where the Guidelines specifically contradict the law of Georgia. In this event, the

60

Georgia Public Defender Standards Council, Death Penalty Conflict Case Appointment Request and
Application for Vendor Number, at http://www.gidc.com/cpdsystem-forms-conflict-dp_vendor_app.doc
(last visited on Oct. 27, 2005).
61
Georgia Public Defender Standards Council, Protocol for Payment of Attorneys Fees to Counsel
Appointed to Represent Clients in Death Penalty Cases After January 1, 2005, at
http://www.gidc.com/cpdsystem-forms-conflict-dp_protocol_atty_fees.pdf (last visited on Oct. 27, 2005).
62
Id.
63
The “Fee Claim Form” is available at Georgia Public Defender Standards Council, Death Penalty
Conflict Defender Fee Claim Form, at http://www.gidc.com/cpdsystem-forms-conflict-dp-fee_claim.doc
(last visited on Oct. 27, 2005).
64
Georgia Public Defender Standards Council, Protocol for Payment of Attorneys Fees to Counsel
Appointed to Represent Clients in Death Penalty Cases After January 1, 2005, at
http://www.gidc.com/cpdsystem-forms-conflict-dp_protocol_atty_fees.pdf (last visited on Oct. 27, 2005).
65
Georgia Public Defender Standards Council, Death Penalty Conflict Defender Fee Claim Form, at
http://www.gidc.com/cpdsystem-forms-conflict-dp-fee_claim.doc (last visited on Oct. 27, 2005).
66
See GA. PUB . DEFENDER STANDARDS C OUNCIL, F INAL PAGE OF D EATH PENALTY DEFENSE
STANDARDS , at http://www.gidc.com/cpdsystem-standards-death_penalty_case_final_page.pdf (last visited
on Oct. 27, 2005); GA. P UB. DEFENDER S TANDARDS COUNCIL , DEATH P ENALTY DEFENSE STANDARDS , at
http://www.gidc.com/cpdsystem-standards-death_penalty_case.pdf (last visited on Oct. 27, 2005); see also
Georgia Public Defender Standards Council, Meeting Minutes (April 6, 2005), at
http://www.gpdsc.com/aboutus-council-minutes-minutes_04-06-05.pdf (last visited on Oct. 7, 2005)
(noting that the GPDSC Death Penalty Standards “were already fully debated and posted for 30 days was
made, seconded and approved unanimously with 7 affirmative votes”); see also Georgia Public Defender
Standards Council, Performance Standards for Appellate Counsel, at http://www.gpdsc.com/cpdsystemstandards-main.htm (last visited on Nov. 21, 2005) (publishing the Performance Standards for Appellate
Counsel for comment; the period for comments ends on Dec. 8, 2005, one day before the GPDSC considers
the standards for adoption on Dec. 9, 2005).

141

Guideline[s] shall be inapplicable to Georgia.”67 The GPDSC provided the following
example to illustrate an instance in which the Guidelines contradict Georgia law:
Guideline 2.1(c) and the Commentary for Guideline 3.1 specifically require that
all death penalty defense lawyers should be appointed by an independent agency
free from political influence rather than by the judiciary. O.C.G.A. § 17-12127(b) requires the presiding judge to appoint counsel in all instances where the
office of the Georgia Capital Defender has a conflict of interest.68
Apart from this example, the GPDSC has not provided a list of the Guidelines that
contradict Georgia law. Therefore, it is unclear how many other Guidelines contradict
Georgia law, making them inapplicable to the state’s laws and practices.
Additionally, it does not appear that the GPDSC Death Penalty Defense Standards are
currently effective and enforceable as adopted by the GPDSC. We note that the Office of
the Georgia Capital Defender (GCD) treats the GPDSC Death Penalty Defense Standards
as binding on the GCD. However, the GPDSC Death Penalty Defense Standards do not
include an effective date or indicate the status of the standards with respect to General
Assembly ratification,69 which is required if the General Oversight Committee
determines that the standards have a “fiscal impact.”70 On March 23, 2005, the General
Oversight Committee “determined that all of the standards adopted so far by the
[GPDSC] have a fiscal impact,” 71 but this determination was made prior to the GPDSC’s
adoption of the GPDSC Death Penalty Defense Standards. Since that time, however, we
have been told that the Legislature has deemed the GPDSC Death Penalty Defense
Standards to have a “fiscal impact,” thus requiring ratification in order to become
effective.72
Given that the GPDSC Death Penalty Defense Standards are not yet effective or
enforceable and the extent to which the Guidelines contradict Georgia law is unclear, the
Parts below will focus on established Georgia laws, rules, standards, and procedures
pertaining to the appointment, qualifications, and training of counsel who are assigned or
appointed to handle cases covered by Georgia’s indigent legal representation system.
The extent to which Georgia has implemented the Guidelines, however, will be discussed
at length in the analysis section.

67

DEATH P ENALTY DEFENSE S TANDARDS, supra note 66.
Id.
69
O.C.G.A. 17-12-8(d) (2005).
70
See supra notes 34-35 and accompanying text.
71
See Georgia Public Defender Standards Council, 2005 Legislative Session Report #8, at
http://www.gpdsc.com/resources-legislation-update_04-05-05.htm (last visited on Oct. 27, 2005).
72
See Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author). See
also Georgia Public Defender Standards Council, Meeting Minutes (Sept. 16, 2005), at
http://www.gpdsc.com/aboutus-council-minutes-minutes_09-16-05.pdf (last visited on Nov. 10, 2005)
(noting that “[t]he Oversight Committee is still determining which of the standards adopted by the Council
have a fiscal impact).
68

142

2. Appointment of Counsel
Under Georgia’s indigent legal representation system, an accused charged with a capital
felony for which the death penalty is being sought is eligible for appointed counsel at trial
and on direct appeal if s/he can establish that s/he is indigent.73 In cases in which the
accused is found to be indigent, the court in which the charges are pending must notify
the GCD of the situation.74 The GCD is required to assume the defense of the accused as
long as there is not a conflict of interest.75 If for any reason the GCD is unable to defend
the accused, including in cases of conflict of interest, the presiding judge of the superior
court in which the case is pending must appoint counsel to represent the accused.76
The accused must be appointed two attorneys77 “as soon as is feasible and no more than
72 hours after the indigent person is taken into custody or service is made upon him or
her of the charge, petition, notice, or other initiating process.”78 The GCD or the
appointed counsel must represent the accused through all trial court proceedings and any
appeals in the Georgia Supreme Court, which includes direct appeal. 79 The Unified
Appeal Rule recommends that two attorneys handle matters on direct appeal,80 but it does
not mention whether these attorneys should be the same two attorneys appointed for trial.
Following the direct review by the Georgia Supreme Court, death-sentenced inmates do
not have a right to appointed counsel in any other state court proceedings, including state

73

O.C.G.A. § 17-12-127 (2005). The “Standards for Determining Indigence,” adopted by the Georgia
Public Defender Standards Council on November 21, 2003, and ratified on August 27, 2004, define an
indigent as “a person who has been arrested or charged with a crime punishable by imprisonment who lacks
sufficient income or other resources to employ a qualified lawyer to defend him or her without undue
hardship on the individual or his or her dependants.” See G A. P UB. D EFENDER S TANDARDS C OUNCIL,
STANDARDS
FOR
D ETERMINING
I NDIGENCE,
at
http://www.gidc.com/cpdsystem-standardsdetermining_indigence.pdf (last visited on Oct. 27, 2005). If the accused earns less than 200% of the
Federal Poverty Guidelines and does not possess any other resources that could be used to employ an
attorney without undue hardship, indigence is presumed and the individual is entitled to appointed counsel.
Id. An individual who earns more than 200% but less than 300% of the Federal Poverty Guidelines is
presumed to be ineligible for appointed counsel unless s/he can prove, “to the satisfaction of the Circuit
Public Defender’s Office” that either (1) s/he is unable to obtain qualified counsel due to the “extraordinary
cost of the case, as compared to [his/her] disposable income or other reasonably available resources,” or (2)
“there are other reasons that make it impossible for the person to obtain qualified legal representation
without undue hardship on the person or [his/her] dependants.” Id. An individual denied appointed
counsel may appeal the decision to the judge, or if no judge is assigned, to the court in which his/her case is
pending. Id.
74
O.C.G.A. § 17-12-127(a) (2005).
75
Id.
76
O.C.G.A. § 17-12-127(b) (2005).
77
GA. UNIFIED A PPEAL R. II(A)(1).
78
O.C.G.A.§ 17-12-23(b) (2005); see also GA. UNIF. SUPER . CT. R. 33.2(A) (requiring counsel be
appointed before the defendant pleads to the charges, which generally occurs at the arraignment).
79
O.C.G.A. § 17-12-127(c) (2005).
80
GA. UNIFIED A PPEAL R. II(A)(2).

143

habeas corpus and clemency proceedings,81 and GCD attorneys and conflict attorneys are
explicitly prohibited from providing assistance with “any petition for a writ of habeas
corpus in a federal court.”82
3. Qualifications of GCD and Conflict Attorneys
a. GCD and Conflict Attorneys for Trial
Georgia law requires any attorney who is assigned the “primary responsibility” for
representing an indigent person accused of a capital offense for which the death penalty is
being sought to be “authorized to practice law in [the State of Georgia] and [be]
otherwise competent to counsel and defend a person charged with a capital felony.”83
The Unified Appeal Procedure also specifies that each of these attorneys:
1.

2.

3.
4.

5.
6.

must be a member in good standing of the State Bar or admitted to
practice pro hac vice, and must have at least five years criminal litigation
experience as a defense attorney or a prosecuting attorney;
must have been lead counsel on at least one death-penalty murder trial to
verdict or three capital (non-death penalty) trials to verdict, one of which
must have been a murder case, or have been co-counsel on two death
penalty cases;
must be familiar with the unified appeal procedures;
must be familiar with and experienced in the utilization of expert
witnesses and evidence, including but not limited to psychiatric and
forensic evidence;
must have obtained the requisite training (discussed below); and
must have demonstrated the necessary proficiency and commitment which
exemplify the quality of representation appropriate to capital cases.84

Similarly, co-counsel:
1.

2.
3.

must be a member in good standing of the State Bar with combined three
years criminal trial experience either as a criminal defense attorney or
prosecuting attorney;
must have been lead or co-counsel in at least one (non-death penalty)
murder trial to verdict, or in at least two felony jury trials; and
must have obtained the requisite training (discussed below).85

81

See O.C.G.A. § 17-12-127(c) (2005); Gibson v. Turpin, 513 S.E.2d 186 (Ga. 1999) (finding no right to
appointed counsel in a state habeas corpus proceeding); see also Jennifer N. Ide, The Case of Exzavious Lee
Gibson: A Georgia Court’s (Constitutional?) Denial of a Federal Right, 47 EMORY L.J. 1079, 1113-16
(1998); Jill Wasserman, Has Habeas Corpus Been Suspended in Georgia?: Representing Indigent
Prisoners on Gerogia’s Death Row, 17 GA. S T. U. L. R EV. 605, 611 (2000).
82
O.C.G.A. § 17-12-127(c) (2005).
83
O.C.G.A. § 17-12-126(b) (2005).
84
GA. UNIFIED A PPEAL R. II(A)(1)(a).

144

The trial courts are required to enforce these qualification standards.86 If the trial court
finds that an attorney is otherwise competent but does not meet these qualification
standards, the court may petition the Georgia Supreme Court for authorization to appoint
the attorney by specifying the attorney’s qualifications and the reasons the trial court has
determined that the attorney is competent to serve as either lead or co-counsel.87
b. GCD and Conflict Attorneys on Direct Appeal
On direct appeal, the Unified Appeal Procedure specifies that any lead counsel handling a
direct appeal for an individual sentenced to death:
1.

2.

3.

must be a member in good standing of the State Bar or admitted to
practice pro hac vice and must have at least five years criminal litigation
experience as a defense attorney or a prosecuting attorney; and
must have been co-counsel, or have actively assisted in the direct appeal
of at least one death penalty case and have been counsel of record in at
least three felony appeals; and
must have obtained the requisite training (discussed below).88

Similarly, co-counsel on direct appeal:
1.

2.
3.

must be a member in good standing of the State Bar with combined three
years criminal trial experience either as a criminal defense attorney or
prosecuting attorney; and
must have experience as counsel of record in three felony appeals either as
a defense attorney or prosecuting attorney; and
must have obtained the requisite training (discussed below).89

The Georgia Supreme Court is required to enforce these qualification standards.90
4. Training Requirements for GCD and Conflict Attorneys and Training
Sponsors
a. Training Requirements
Rule II(A) of the Unified Appeal Procedure requires that all trial counsel and appellate
counsel “attend[] within twelve months previous to appointment at least ten hours of

85
86
87
88
89
90

GA. UNIFIED A PPEAL R. II(A)(1)(b).
GA. UNIFIED A PPEAL R. II(A)(3).
Id.
GA. UNIFIED A PPEAL R. II(A)(2)(a).
GA. UNIFIED A PPEAL R. II(A)(2)(b).
GA. UNIFIED A PPEAL R. II(A)(3).

145

specialized training or educational programs . . . or, upon appointment agree to take ten
hours of such training or educational programs and maintain annually during the
pendency of the case ten hours of such training or educational programs.”91 Attorneys
who are lead or co-counsel in any death penalty trial must meet this requirement by
participating in training or educational programming in “death penalty defense.”92
Similarly, attorneys who are lead or co-counsel on direct appeal must meet this
requirement by participating in training or educational programming relating to “postconviction appeals and appellate procedures relating to post-conviction appeals.”93
b. Training Sponsors
The GCD sponsors two major capital defense training seminars each year.94 In February,
an advanced capital defender seminar is offered in St. Simons Island, Georgia, and during
the summer, a basic capital defender-training course is offered in Atlanta, Georgia.95
Both seminars are by invitation only with preference given to attorneys with active
Georgia death penalty cases.96
5. Resources Available to GCD and Conflict Attorneys
The Capital Defender is authorized to hire “as many . . . investigators, . . . and other
persons as may be necessary” to carry out his/her responsibilities as the Capital
Defender.97 As of early December 2005, the GCD had on staff ten investigators and one
forensic social worker.98 The GCD also has a budget to hire any necessary experts
without approaching the court for approval.99

91

GA. UNIFIED A PPEAL R. II(A)(1)(a)-(b).
Id.
93
GA. UNIFIED A PPEAL R. II(A)(2)(a)-(b).
94
Georgia Capital Defender, Training, at http://www.gacapdef.org/main.htm (last visited on Oct. 27,
2005). Prior to the adoption of the Indigent Defense Act, the Multi-County Public Defender Office held
seminars to train attorneys to properly handle death penalty cases. See 2002 ANNUAL R EPORT, supra note
45, at 6; MULTI-C OUNTY P UBLIC DEFENDER O FFICE, 2002 YEARLY R EPORT (2002) (on file with the author)
(describing the office’s four death penalty defense seminars presented in 2002).
95
Georgia Capital Defender, Training, at http://www.gacapdef.org/main.htm (last visited on Oct. 27,
2005).
96
Id.
97
O.C.G.A. § 17-12-126(a) (2005).
98
Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author).
99
Prior to the adoption of the Indigent Defense Act, a defendant in need of experts or other specialists
was required to file a motion requesting expert assistance at public expense to assist him/her in preparing
his/her defense and/or evidence in mitigation for the penalty phase. See Ake v. Oklahoma. 470 U.S. 68, 83
(1985). The hearing on the defendant’s motion was required to be held ex parte. See Brooks v. State, 385
S.E.2d 81, 84 (Ga. 1989) (stating that the state may be present when the defendant is examined as to his/her
indigency). The judge hearing the case had absolute discretion to decide whether to provide certain funds
subject to the constitutional restraints articulated in Ake v. Oklahoma. See Thomason v. State, 486 S.E.2d
861, 871-72 (Ga. 1997); Ake, 470 U.S. at 83 (requiring expert mental health experts if certain
circumstances are met). The Spangenberg Report found “major problems . . . surrounding requests for
investigators or expert witnesses.” See SPANGENBERG R EPORT, supra note 3, at iii. For example, in
92

146

Similarly, in cases in which the GCD is unable to represent the defendant due to a
conflict of interest, the appointed conflict attorney does not have to apply to the court for
experts or investigators.100 Rather, the conflict attorney must submit a form entitled
“Request for Pre-Approval for an Expert Witness” 101 to the Deputy Director for Conflict
Case Management at the Georgia Public Defender Standards Council. 102 The form must
include the total amount that the expert or investigator is requesting to perform the
service(s); it should not include an hourly fee to be computed at a later date, or a variable
fee based upon some future event.103 If the total cost is unknown, the form should
include an amount that will cover the expert’s anticipated initial service(s), as the
attorney may submit supplemental requests for additional services.104 Requests for fees
associated with the expert testimony should be handled in a supplemental request once
the need for the testimony arises.105 The pre-approval procedure must be followed in
order for the experts and investigators to obtain payment for their services.106
C. Appointment, Qualifications, Training, and Resources Available to Attorneys
Handling Cases Not Covered by Georgia’s Indigent Legal Representation
System: State Habeas Corpus and Clemency
The Georgia Supreme Court, in Gibson v. Turpin,107 found that death-sentenced inmates
do not have a right to appointed counsel in any state court proceedings after direct review
by the Georgia Supreme Court.108 Although there is no right to appointed counsel during
state habeas proceedings, the State of Georgia does provide limited state funding

Clayton County attorneys reported that, even in death penalty cases, to get approval for investigators was
akin to pulling teeth. Id. at 67; see also “I F YOU CANNOT AFFORD A LAWYER . . .”, supra note 3, at 45
(stating “[i]n Forsyth County, where all local lawyers are conscripted to defend poor people accused of
crimes, a lawyer was asked what he would do if he needed an investigator. He replied ‘Too bad.’ And if
he needed experts? ‘Too bad.’ Could he approach the judge for funds? He again replied, ‘Too bad.’ A
contract lawyer in Floyd County, who handles 200 cases, said virtually the same thing. He receives funds
only for exceptional—i.e., capital—cases.”).
100
Protocol for the Appointment of Expert Witnesses and Investigators in Death Penalty Cases assigned
to Private Counsel after January 1, 2005, at http://www.gidc.com/cpdsystem-forms-conflictdp_protocol_experts.pdf (last visited on Oct. 27, 2005).
101
The Protocol for the Appointment of Expert Witnesses and Investigators in Death Penalty Cases
assigned to Private Counsel after January 1, 2005 refers to the “Request for Pre-Approval for an Expert
Witness,” but we were unable to locate a form by that name. However, the GPDSC website contains a
similar form entitled “Requisition for Employment of Expert Witness,” which appears as if it can be used
in death penalty cases.
102
Protocol for the Appointment of Expert Witnesses and Investigators in Death Penalty Cases assigned
to Private Counsel after January 1, 2005, at http://www.gidc.com/cpdsystem-forms-conflictdp_protocol_experts.pdf (last visited on Oct. 27, 2005).
103
Id.
104
Id.
105
Id.
106
Id.
107
513 S.E.2d 186 (1999).
108
Id. at 188-91.

147

(approximately $800,000 per year) to the Georgia Appellate Practice and Educational
Resource Center (Resource Center), which monitors capital litigation, represents inmates
petitioning for state and federal habeas corpus, and seeks pro bono counsel to handle state
and federal habeas cases.109 The Resource Center has four attorneys on staff, including
the director, and two full time and two part time investigators.110 As of May 2005, these
four attorneys were serving as co-counsel or providing substantial assistance in
approximately sixty pending state habeas death penalty cases.111 A comparable
organization, however, does not exist for death-sentenced inmates seeking clemency.
Apart from the Georgia Rules of Professional Conduct requiring competence, 112 there are
no additional qualification standards for attorneys who handle state habeas corpus
proceedings.113 Similarly, the O.C.G.A. and the Rules of the Georgia State Board of
Pardons and Paroles (the Rules) contain just one qualification requirement for attorneys
handling clemency petitions and it only pertains to attorneys who are being paid to appear
or practice in any matter before the Board.114 The O.C.G.A. and the Rules require these
attorneys to be licensed and active members in good standing of the State Bar of
Georgia.115 Neither the O.C.G.A. nor the Rules require paid attorneys to possess any
other qualifications or mention any requisite qualifications for non-paid attorneys.
Similarly, there are no training requirements for attorneys who take on state habeas or
clemency cases.
D. Appointment, Qualifications, Training, and Resources Available to Attorneys
Handling Federal Habeas Corpus Petitions
Pursuant to section 848(q)(4) of Title 28 of the United States Code, a death-sentenced
inmate petitioning for federal habeas corpus in one of Georgia’s three federal judicial
districts— Northern, Middle, and Southern—is entitled to appointed counsel and other
resources if s/he “is or becomes financially unable to obtain adequate representation or
investigative, expert, or other reasonably necessary services.”116 In the Northern District

109

Interview with a Staff Member from the Resource Center (May 2005).
Id.
111
Id.
112
GA.
RULES
P ROF’ L.
CONDUCT
R.
1.1,
available
at
http://www.gabar.org/handbook/part_iv_after_january_1_2001__georgia_rules_of_professional_conduct/rule_11_competence/ (last visited on Oct. 27, 2005) (stating that
“competence requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation”).
113
E-mail Interview with Stephanie Kearns, Executive Director, Federal Defender Program, Inc., for the
Northern District of Georgia, and Susan Casey, Esq. (May 2005).
114
O.C.G.A. § 42-9-16(a) (2004); G A. C OMP. R. & REGS . 475-3-.02(3) (2004); see also Board of Pardons
and Paroles, Other Forms of Clemency, at www.pap.state.ga.us/other_forms_clemency.htm (last visited on
Oct. 27, 2005).
115
O.C.G.A. § 42-9-16(a) (2004); G A. C OMP. R. & REGS. 475-3-.02(3) (2004); see also Board of Pardons
and Paroles, Other Forms of Clemency, at www.pap.state.ga.us/other_forms_clemency.htm (last visited on
Oct. 27, 2005).
116
21 U.S.C. § 848(q)(4)(B) (2004); McFarland v. Scott, 512 U.S. 849, 856-57 (1994).
110

148

of Georgia, staff attorneys from the Capital Habeas Unit (CHU) of the Federal Defender
Program, Inc., a federally funded, non-profit organization, are appointed to handle these
cases unless there is a conflict of interest.117 A comparable organization does not exist in
either the Middle or Southern District of Georgia. Rather, death-sentenced inmates in
these districts are represented by attorneys appointed by the court, who often are
attorneys from the Resource Center.118
According to section 848(q)(4) of Title 28 of the United States Code, inmates entitled to
an appointed attorney must be appointed at least one qualified attorney119 prior to the
filing of a formal, legally sufficient federal habeas petition.120 To be qualified for
appointment, the attorney must “have been admitted to practice in the [United States
Court of Appeals for the Eleventh Circuit Court] for not less than five years, and must
have had not less than three years experience in the handling of appeals in that court in
felony cases.”121 For “good cause,” the court may appoint another attorney “whose
background, knowledge, or experience would otherwise enable him or her to properly
represent the defendant, with due consideration to the seriousness of the possible penalty
and to the unique and complex nature of the litigation.”122 These attorneys must be
compensated at a rate of not more than $140 per hour for in and out of court work.123
In addition to counsel, the court may also authorize the attorneys to obtain investigative,
expert, or other services as are reasonably necessary for representation.124 The fees and
expenses paid for these services may not exceed $7,500 in any case.125

117

E-mail Interview with Stephanie Kearns, Executive Director, Federal Defender Program, Inc., for the
Northern District of Georgia, and Susan Casey, Esq. (May 2005); see also Plan of the United States District
Court for the Northern District of Georgia Pursuant to The Criminal Justice Act of 1964, As Amended,
Appendix D, at http://www.gand.uscourts.gov/documents/NDGARulesAppD.pdf (last visited on Oct. 31,
2005).
118
Interview with Brian Kammer, Georgia Appellate Practice and Educational Resource Center (Oct.
2005).
119
In the Northern District of Georgia, however, the practice is to require two attorneys. See E-mail
Interview with Stephanie Kearns, Executive Director, Federal Defender Program, Inc., for the Northern
District of Georgia (Oct. 2005); see also Plan of the United States District Court for the Northern District of
Georgia Pursuant to The Criminal Justice Act of 1964, As Amended, Appendix D, at
http://www.gand.uscourts.gov/documents/NDGARulesAppD.pdf (last visited on Oct. 31, 2005) (stating
that “[d]ue to the complex, demanding, and protracted nature of death penalty proceedings, judicial officers
should consider appointing at least two counsel who may both be staff attorneys of the [CHU], who are
experience in handling death penalty cases”).
120
21 U.S.C. § 848(q)(4)(B) (2004); McFarland, 512 U.S. at 856-57.
121
21 U.S.C. § 848(q)(6) (2004).
122
21 U.S.C. § 848(q)(7) (2004).
123
E-mail Interview with Stephanie Kearns, Executive Director, Federal Defender Program, Inc., for the
Northern District of Georgia, and Susan Casey, Esq. (May 2005).
124
21 U.S.C. § 848(q)(9) (2004).
125
21 U.S.C. § 848(q)(10)(B) (2004).

149

1. The Federal Defender Program, Inc.
In the Northern District of Georgia, the Capital Habeas Unit of the Federal Defender
Program, Inc., handles all federal habeas cases except in cases of a conflict of interest.126
The number of lawyers employed in the CHU is based on the number of federal postconviction cases the office is assigned to handle.127 As of May 2005, there were four full
time attorneys and one part-time attorney representing clients in fourteen habeas cases,
and an additional thirty-four cases were being monitored as they proceed through the
state habeas process.128
All CHU attorneys are required to comply with the qualification requirements contained
in section 848(q)(6) of Title 28 of the United States Code129 and are encouraged, but not
required, to attend training programs, conferences and seminars.130 Complaints about any
CHU attorney’s performance may be made directly to the judge or to the Executive
Director of the Federal Defender Program, Inc.131

126

See supra note 117.
E-mail Interview with Stephanie Kearns, Executive Director, Federal Defender Program, Inc., for the
Northern District of Georgia, and Susan Casey, Esq. (May 2005).
128
Id.
129
See Plan of the United States District Court for the Northern District of Georgia Pursuant to The
Criminal
Justice
Act
of
1964,
As
Amended,
Appendix
D,
at
http://www.gand.uscourts.gov/documents/NDGARulesAppD.pdf (last visited on Oct. 31, 2005).
130
E-mail Interview with Stephanie Kearns, Executive Director, Federal Defender Program, Inc., for the
Northern District of Georgia, and Susan Casey, Esq. (May 2005).
131
Id.
127

150

II. ANALYSIS
A. Recommendation # 1
In order to ensure high quality legal representation for all individuals facing
the death penalty, each death penalty jurisdiction should guarantee qualified
and properly compensated counsel at every stage of the legal proceedings –
pretrial (including arraignment and plea bargaining), trial, direct appeal, all
certiorari petitions, state post-conviction and federal habeas corpus, and
clemency proceedings. Counsel should be appointed as quickly as possible
prior to any proceedings. At minimum, satisfying this standard requires the
following (as articulated in Guideline 4.1 of the ABA Guidelines on the
Appointment and Performance of Defense Counsel in Death Penalty Cases):

The State of Georgia does not guarantee counsel at every stage of the legal proceedings.
Rather, the Georgia Supreme Court, in Gibson v. Turpin,132 found that death-sentenced
inmates do not have a right to appointed counsel after direct review by the Georgia
Supreme Court.133 Federal law, however, guarantees indigent death-sentenced inmates
the right to appointed counsel for federal habeas corpus proceedings. 134 Based on Gibson
and prevailing state and federal law, indigent individuals charged with or convicted of a
capital offense in the State of Georgia have a right to appointed counsel only during pretrial proceedings, trial and direct appeal, and federal habeas corpus proceedings. Deathsentenced inmates petitioning for state habeas corpus and clemency are not entitled to
appointed counsel.
Indigent individuals entitled to appointed counsel at pre-trial proceedings and during trial
and direct appeal must be appointed counsel from the Office of the Georgia Capital
Defender (GCD), or in cases of conflict of interest, a conflict attorney, “as soon as is
feasible and no more than 72 hours after the indigent person is taken into custody or
service is made upon him or her of the charge, petition, notice, or other initiating
process.”135 Similarly, death-sentenced inmates entitled to appointed counsel for federal
habeas corpus must be appointed counsel prior to the filing of a formal, legally sufficient
habeas petition.136
Despite the fact that Georgia law does not provide representation to death-sentenced
inmates petitioning for state habeas relief, some organizations and individual attorneys in
Georgia provide pro bono representation to these inmates.137 However, due to limited
resources and personnel, these organizations and attorneys are incapable of representing

132

513 S.E.2d 186 (1999)
Id.
134
See 21 U.S.C. § 848(q)(4)(B) (2004); McFarland v. Scott, 512 U.S. 849, 856-57 (1994)
135
See O.C.G.A.§ 17-12-23(b) (2005); see also GA. UNIF. SUPER . CT. R. 33.2(A) (requiring counsel be
appointed before the defendant pleads to the charges, which generally occurs at the arraignment).
136
See 21 U.S.C. § 848(q)(4)(B) (2004); McFarland, 512 U.S. at 856-57.
137
See SPANGENBERG R EPORT, supra note 3, at 59.
133

151

all death-sentenced inmates petitioning for state habeas relief. For example, the Georgia
Appellate Practice and Resource Center (Resource Center) 138 has only four attorneys on
staff, including the director,139 who, as of May 2005, were serving as co-counsel or
providing substantial assistance in approximately sixty pending state habeas death
penalty cases.140 Indigent death-sentenced inmates not represented by the Resource
Center, other organizations, or individual attorneys are, therefore, left to represent
themselves. In fact, as of January 18, 2005, “seven of Georgia’s death-row inmates in
their final rounds of appeals ha[d] no lawyer to represent them, the highest number in
more than a decade.”141
a. At least two attorneys at every stage of the proceedings qualified in
accordance with ABA Guidelines for the Appointment and Performance
of Defense Counsel in Death Penalty Cases, Guideline 5.1 (reproduced
below as Recommendation #2), an investigator, and a mitigation
specialist.

Given that death-sentenced inmates are not entitled to appointed counsel for state habeas
corpus or clemency proceedings, Georgia law only contains regulations on the number of
attorneys that should be appointed at trial and on direct appeal. The Unified Appeal
Procedure specifically requires that all indigent individuals charged with or convicted of
a capital offense be appointed two attorneys at trial and recommends that two attorneys
be appointed on direct appeal.142 Georgia law also provides these attorneys with access
to investigators and experts.143
Similarly, under federal law, indigent death-sentenced inmates seeking federal habeas
corpus relief must be appointed “one or more attorneys”144 and these attorneys have
access to investigators, experts, or other services as are reasonably necessary for
representation.145
The qualification requirements for attorneys appointed for trial, direct appeal, and federal
habeas corpus proceedings will be discussed below under Recommendation #2.
b. At least one member of the defense should be qualified by training and
experience to screen individuals for the presence of mental or

138

E-mail Interview with Stephanie Kearns, Executive Director, Federal Defender Program, Inc., for the
Northern District of Georgia, and Susan Casey, Esq. (May 2005) (noting that the “Resource Center staff
make decisions about cases in the Southern and Middle Districts in Georgia” and that “once the case moves
into federal court, the volunteer lawyers from the state proceedings seek appointment in federal court, and
the Federal Defender Program, Inc., usually also seeks appointment”).
139
Id.
140
Id.
141
Bill Rankin, Prisoners on Death Row Face Appeals Alone, A TLANTA J. C ONST., Jan. 18, 2005.
142
See supra note 77 and accompanying text.
143
See supra notes 97-106 and accompanying text.
144
See supra note 120 and accompanying text.
145
See supra note 124 and accompanying text.

152

psychological disorders or impairments. Investigators and experts
should not be chosen on the basis of cost of services, prior work for the
prosecution, or professional status with the state.

Georgia law does not require at least one member of the defense team to be qualified by
training and experience to screen individuals for the presence of mental or psychological
disorders or impairments. However, the Unified Appeal Procedure requires all trial and
appellate attorneys handling death penalty cases to receive at least ten hours of
specialized training.146 Trial attorneys must fulfill this requirement by taking training
related to “death penalty defense,” which could include, but is not required to include,
training on screening individuals for the presence of mental or psychological disorders or
impairments.147
Additionally, even though the State of Georgia does not explicitly require attorneys to
take training on mental or psychological disorders or impairments, training on these
issues is available to GCD attorneys and conflict attorneys who handle death penalty
cases. In fact, all GCD attorneys receive training on mental retardation, and the GCD
also offers two major death penalty seminars each year which emphasize issues
surrounding mental retardation and mental health.148 Attendance at the seminars is by
invitation only and priority is given to attorneys with active death penalty cases in
Georgia.149
The Office of Mental Health Advocate (OMHA) also offers to interested defense
attorneys programs on recognizing mental disorders.150 The last OMHA seminar, offered
in May 2005, was entitled “Defense Strategies for Evaluating, Placing, and Treating the
Mentally Ill Client,” and a portion of the seminar focused on distinguishing mental illness
from mental retardation.151 All of the OMHA seminars are elective and the frequency of
seminars focusing on screening for the presence of mental or psychological disorders or
impairments is unknown.
To the best of our knowledge, there are no equivalent programs available to other
members of the defense team, such as investigators and mitigation specialists. The
process for selecting investigators and experts will be discussed below under Subpart c.

146

GA. U NIFIED APPEAL R. II(A)(1)-(2).
Id.
148
th
See, e.g., Georgia Capital Defender, 13 Annual Capital Defense Training Seminar, “The Nitty-Gritty
of Capital Defense,” Agenda (Feb. 4-6, 2005) (on file with author); Annual Capital Defense Training
Seminar, “We Who Believe In Justice Cannot Rest,” Agenda (July 8-9, 2005) (on file with author).
149
Georgia Capital Defenders, Training, at http://www.gacapdef.org/main.htm (last visited on Oct. 27,
2005).
150
See Georgia Public Defender Standards Council, Mental Health Advocate, OHMA Mental Health
Seminar, at http://www.gpdsc.com/omha-resources-seminars.htm (last visited Oct. 27, 2005).
151
See Georgia Public Defender Standards Council, Mental Health Advocate, “Defense Strategies for
Evaluating, Placing and Treating the Mentally Ill Client,” Agenda, at http://www.gpdsc.com/omharesources-seminars-agenda_051905.htm (last visited Oct. 27, 2005).
147

153

c. A plan for defense counsel to receive the assistance of all expert,
investigative, and other ancillary professional services reasonably
necessary or appropriate to provide high quality legal representation at
every stage of the proceedings. The plan should specifically ensure
provision of such services to private attorneys whose clients are
financially unable to afford them.
i. Counsel should have the right to seek such services through ex parte
proceedings, thereby protecting confidential client information.
ii. Counsel should have the right to have such services provided by persons
independent of the government.
iii. Counsel should have the right to protect the confidentiality of
communications with the persons providing such services to the same extent
as would counsel paying such persons from private funds.

Given that death-sentenced inmates are not entitled to appointed counsel or resources for
investigators or experts during state habeas corpus and clemency proceedings, the State
of Georgia only provides resources for investigators and experts to GCD and conflict
attorneys handling death penalty cases at trial and direct appeal.
GCD and conflict attorneys are not required to seek funds from the court to hire any
necessary experts or investigators. Rather, the GCD has on its staff ten investigators and
one forensic social scientist, and it has a budget to hire any experts without requesting
approval from the court.152 Similarly, in cases in which the GCD is unable to represent
the defendant due to a conflict of interest, the appointed conflict attorney does not have to
apply to the court for experts or investigators.153 The conflict attorney, however, is
required to obtain pre-approval for the expenses associated with hiring an expert or
investigator by submitting a form entitled “Request for Pre-Approval for an Expert
Witness”154 to the Deputy Director for Conflict Case Management at the Georgia Public
Defender Standards Council.155 Neither this form nor any of the other GPDSC forms
appear to restrict the types of experts or investigators that the GCD or conflict attorneys
are authorized to hire. Therefore, it appears that GCD and conflict attorneys may hire
experts of their choosing, including those independent of the government, without having
to approach the court for approval.
All of the costs associated with hiring investigators and experts for GCD and conflict
attorneys come from the state funds appropriated to the GPDSC for use by the GCD, and
the GCD has planned for and set aside money for experts for each expected case

152

See supra notes 97-99 and accompanying text.
Protocol for the Appointment of Expert Witnesses and Investigators in Death Penalty Cases assigned
to Private Counsel after January 1, 2005, at http://www.gidc.com/cpdsystem-forms-conflictdp_protocol_experts.pdf (last visited on Oct. 27, 2005).
154
See supra note 101.
155
Protocol for the Appointment of Expert Witnesses and Investigators in Death Penalty Cases assigned
to Private Counsel after January 1, 2005, at http://www.gidc.com/cpdsystem-forms-conflictdp_protocol_experts.pdf (last visited on Oct. 27, 2005).
153

154

requiring conflict attorneys.156 The budget for the GCD, however, was based on a
projected forty death penalty cases and an additional nine conflict death penalty cases per
year.157 As of early December 2005, forty-seven capital prosecutions—thirty-five
handled by GCD and twelve handled by conflict defender—had commenced.158 Thus, it
remains to be seen whether there will be enough money in the GCD budget to allow GCD
attorneys and conflict attorneys to hire all necessary experts.
Under federal law, indigent death-sentenced inmates petitioning for federal habeas corpus
relief may request and the court may authorize inmates’ attorneys to obtain investigative,
expert, or other necessary services on behalf of the inmate.159
In conclusion, the State of Georgia does not require that indigent individuals charged
with or convicted of a capital felony be appointed counsel and provided with resources
for experts and investigators at every stage of the proceedings. It does require the
appointment of two attorneys at trial and recommends two attorneys during direct appeal
and provides these attorneys with resources for investigators and experts of their
choosing, but it does not provide counsel or resources for investigators and experts to
indigent death-sentenced inmates petitioning for state habeas corpus or clemency.
Additionally, the State of Georgia does not require any member of the defense team to be
qualified by experience or training to screen for mental or psychological disorders or
defects. Based on this information, the State of Georgia is only in partial compliance
with Recommendation #1
B. Recommendation # 2
Qualified Counsel (Guideline 5.1 of the ABA Guidelines on the Appointment and
Performance of Defense Counsel in Death Penalty Cases)
a. The jurisdiction should develop and publish qualification standards for defense
counsel in capital cases. These standards should be construed and applied in
such a way as to further the overriding goal of providing each client with high
quality legal representation.
b. In formulating qualification standards, the jurisdiction should insure:
i. That every attorney representing a capital defendant has:
(a) obtained a license or permission to practice in the jurisdiction;
(b) demonstrated a commitment to providing zealous advocacy and high
quality legal representation in the defense of capital cases; and

(c) satisfied the training requirements set forth in Guideline 8.1.
ii. That the pool of defense attorneys as a whole is such that each capital
defendant within the jurisdiction receives high quality legal representation.

156

See Interview with Chris Adams, Georgia Capital Defender (May 20, 2005).
See Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author); Georgia
Public Defender Standards Council, Meeting Minutes (Aug. 22, 2003), at http://www.gpdsc.com/aboutuscouncil-minutes-minutes_08-22-03%20.pdf (last visited on Oct. 27, 2005).
158
See Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author).
159
See supra note 124 and accompanying text.
157

155

Accordingly, the qualification standards should insure that the pool includes
sufficient numbers of attorneys who have demonstrated:
(a) substantial knowledge and understanding of the relevant state, federal
and international law, both procedural and substantive, governing capital
cases;
(b) skill in the management and conduct of complex negotiations and
litigation;
(c) skill in legal research, analysis, and the drafting of litigation documents;
(d) skill in oral advocacy;
(e) skill in the use of expert witnesses and familiarity with common areas of
forensic investigation, including fingerprints, ballistics, forensic
pathology, and DNA evidence;
(f) skill in the investigation, preparation, and presentation of evidence
bearing upon mental status;
(g) skill in the investigation, preparation, and presentation of mitigating
evidence; and
(h) skill in the elements of trial advocacy, such as jury selection, crossexamination of witnesses, and opening and closing statements.

The Georgia Public Defender Standards Council has adopted the ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases, apart from
where they contradict Georgia law, as the “GPDSC Death Penalty Defense Standards.”160
The ABA Guidelines are posted on the GPDSC’s website,161 but the GPDSC has not
identified or published a list of the Guidelines that contradict Georgia law. Assuming
Guideline 5.1 (reproduced above as Recommendation #2) does not contradict Georgia
law, all of the requirements contained therein would have been included as part of the
GPDSC Death Penalty Standards adopted by the GPDSC. However, the GPDSC Death
Penalty Defense Standards are not yet effective, as we have been told that they have been
determined to have a “fiscal impact” thus requiring ratification by the General Assembly
to become effective.
Regardless of the status of the GPDSC Death Penalty Defense Standards, the GCD treats
the GPDSC Death Penalty Defense Standards as binding on the GCD. Therefore, if
Guideline 5.1 does not contradict Georgia law, it would appear that all GCD attorneys
would be required to possess the qualification requirements contained therein. But, it
remains unclear whether all defense attorneys handling death penalty cases, including
conflict attorneys, would be required to comply with Guideline 5.1.
Aside from Guideline 5.1, the O.C.G.A. and the Unified Appeal Procedure contain
minimum qualification requirements for attorneys handling death penalty cases at trial
and on direct appeal.162 The qualification requirements vary for trial attorneys and
appellate attorneys and for lead counsel and co-counsel, but apply to all attorneys
handling death penalty cases at trial and on direct appeal, including GCD and conflict
160
161
162

See supra note 66 and accompanying text.
DEATH P ENALTY DEFENSE S TANDARDS, supra note 66.
See supra notes 83-90 and accompanying text.

156

attorneys.163 In fact, the form that conflict attorneys in death penalty cases are required to
complete, the “Death Penalty Conflict Case Appointment Request and Application for
Vendor Number,”164 requires the attorneys to acknowledge that they are “in compliance
with the provisions of the Supreme Court of Georgia’s—Unified Appeal proceedings.” 165
The Unified Appeal Procedure’s qualification requirements for lead trial attorneys are
more expansive than the requirements for co-counsel at trial and lead and co-counsel on
appeal, but still only include some of the requirements contained in Guideline 5.1. As
required by Guideline 5.1, the Unified Appeal Procedure relies not only on quantitative
measures of experience to determine whether an attorney is qualified to serve as a lead
trial attorney, but also requires lead trial attorneys to have “demonstrated the necessary
proficiency and commitment which exemplify the quality of representation necessary in
capital cases.”166 Additionally, it requires lead trial attorneys to be members in good
standing of the State Bar of Georgia, to be familiar and have experience with the
utilization of expert witnesses and evidence, and to have specialized training.167
However, the Unified Appeal Procedure does not require lead trial attorneys to have
demonstrated skills in all of the areas contained in Guideline 5.1, such as legal research,
analysis and writing, and the training required by the Unified Appeal Procedure falls
short of the requirements of Guideline 5.1 (which will be discussed in detail under
Recommendation #5).
In conclusion, we commend the GPDSC on adopting the ABA Guidelines on the
Appointment and Performance of Defense Attorneys in Death Penalty Cases as the
GPDSC Death Penalty Defense Standards, but we are unable to conclude that the State of
Georgia has effective and enforceable qualification standards that comply with Guideline
5.1, as it is unclear whether Guideline 5.1 was adopted as part of the GPDSC Death
Penalty Defense Standards and the standards are not yet effective. Even assuming that
Guideline 5.1 was adopted as part of the GPDSC Death Penalty Defense Standards, it is
unclear which defense attorneys, apart from GCD attorneys, would be required to comply
with the qualification requirements. Aside from Guideline 5.1, however, the State of
Georgia, pursuant to the Unified Appeal Procedure, does require all attorneys handling
death penalty cases at trial and on direct appeal to possess some, but not all, of the
qualification requirements contained in Guideline 5.1. The State of Georgia, therefore, is
in partial compliance with Recommendation #2.

163

Id.
Death Penalty Conflict Case Appointment Request and Application for Vendor Number, at
http://www.gidc.com/cpdsystem-forms-conflict-dp_vendor_app.doc (last visited on Oct. 27, 2005).
165
Id.
166
GA. UNIFIED A PPEAL R. II(A)(1)(a).
167
Id.
164

157

C. Recommendation # 3
The selection and evaluation process should include:
a. A statewide independent appointing authority, not comprised of judges or
elected officials, consistent with the types of statewide appointing authority
proposed by the ABA (see, American Bar Association Policy Recommendations
on Death Penalty Habeas Corpus, paragraphs 2 and 3, and Appendix B thereto,
proposed section 2254(h)(1), (2)(I), reprinted in 40 Am. U. L. Rev. 1, 9, 12, 254
(1990), or ABA Death Penalty Guidelines, Guideline 3.1 Designation of a
Responsible Agency), such as:

i. A defender organization that is either:
(a) a jurisdiction-wide capital trial office, relying on staff attorneys,
members of the private bar, or both to provide representation in death
penalty cases; or
(b) a jurisdiction-wide capital appellate and/or post-conviction defender
office, relying on staff attorneys, members of the private bar, or both to
provide representation in death penalty cases; or
ii. An “Independent Authority,” that is, an entity run by defense attorneys with
demonstrated knowledge and expertise in capital representation.

The State of Georgia does not vest in one statewide independent appointing authority the
responsibility for training, selecting, and monitoring attorneys who represent indigent
individuals charged with or convicted of a capital felony. Rather, this responsibility is
divided among three entities: the Georgia Public Defender Standards Council (GPDSC),
the Office of the Georgia Capital Defender (GCD), and the judiciary (in cases of conflict
of interest).
Of these three entities, the GCD is the only entity wholly independent of the judiciary.
The GCD is directed by a defense attorney (the Capital Defender), and it relies on its staff
attorneys to represent at trial and on direct appeal all indigent individuals charged with or
convicted of a capital felony, except in cases of a conflict of interest.168 On the other
hand, the Georgia Public Defender’s Standards Council is composed of attorneys and
judges,169 who, with the assistance of the Director of the GPDSC, manage the GCD,
establish standards relevant to capital defense, and monitor the performance of GCD
attorneys.170 Even though the composition of the GPDSC includes judges, all members
are required to have “significant experience working in the criminal justice system or []
have demonstrated a strong commitment to the provision of adequate and effective
representation of indigent defendants”171 and the overall goal of the GPDSC is to
“assur[e] that adequate and effective legal representation is provided, independently of

168

See supra notes 46-49 and accompanying text.
Georgia Public Defender Standards Council, Council Members, at http://www.gpdsc.com/aboutuscouncil-members.htm (last visited Oct. 27, 2005).
170
See supra notes 27-29, 48 and accompanying text.
171
See supra note 25 and accompanying text.
169

158

political considerations or private interests, to indigent persons who are entitled to
representation.” 172
The responsibilities of these entities with regard to the training, selection, and monitoring
of counsel will be discussed in detail in Subparts b and c. But, we note that these
responsibilities relate only to the training, selection, and monitoring of counsel at trial
and on direct appeal, given that the State of Georgia does not provide appointed counsel
to indigent death-sentenced inmates petitioning for state habeas corpus or clemency
proceedings.
b. Development and maintenance, by the statewide independent appointing
authority, of a roster of eligible lawyers for each phase of representation.

To the best of our knowledge, no entity within the State of Georgia has developed and/or
maintains a roster of eligible lawyers for each phase of representation, including trial and
direct appeal.
We note, however, that attorneys requesting appointment as a conflict attorney to a death
penalty trial or direct appeal are required to submit to the GPDSC a form entitled “Death
Penalty Conflict Case Appointment Request and Application for Vendor Number” in
order to be appointed and to obtain a vendor number, which is used by the attorney when
submitting his/her fee claim.173 It is, therefore, conceivable that the GPDSC maintains a
list of the attorneys that have submitted “Death Penalty Conflict Case Appointment
Request and Application for Vendor Number” forms and/or a list of the attorneys that
have been granted vendor numbers. If the granting of a vendor number means that the
attorney is “eligible” to handle a death penalty trial or direct appeal and the GPDSC
maintains a list of attorneys that have been granted vendor numbers, then a list of
“eligible” attorneys may exist in Georgia. But, we do not have knowledge of any list and
it does not appear that judges use any kind of list to appoint attorneys in cases of a
conflict of interest.
c. The statewide independent appointing authority should perform the following
duties:

As indicated above, the State of Georgia does not vest in one statewide independent
appointing authority the responsibility for training, selecting, and monitoring attorneys
who represent indigent individuals charged with or convicted of a capital felony. Rather,
this responsibility is divided among the GPDSC, the GCD, and the judiciary (in cases of
conflict of interest).
i.

172
173

recruit and certify attorneys as qualified to be appointed to represent
defendants in death penalty cases;

See supra note 19 and accompanying text.
See supra note 64 and accompanying text.

159

The Capital Defender is charged with recruiting and hiring, with the advice and consent
of the GPDSC, attorneys to represent indigent individuals charged with or convicted of a
capital felony except in cases of conflict of interest.174 The Capital Defender, however, is
not required to certify these attorneys as qualified to handle death penalty cases.
Additionally, unless the process of granting a vendor number to a conflict attorney
certifies the attorney as qualified for appointment, it does not appear that the GPDSC
certifies conflict attorneys as qualified to handle death penalty cases. Similarly, even
though the judiciary is responsible for ensuring that all attorneys handling death penalty
cases, including GCD attorneys and conflict attorneys, possess the qualifications
requirements contained in the Unified Appeal Procedure,175 judges are not required to
certify these attorneys as qualified.
ii. draft and periodically publish rosters of certified attorneys;

As indicated above, it does not appear that any entity has drafted and/or periodically
publishes a roster of certified attorneys in Georgia.
iii. draft and periodically publish certification standards and procedures by
which attorneys are certified and assigned to particular cases;

It does not appear that any entity within the State of Georgia has drafted and/or
periodically publishes certification standards and procedures by which attorneys are
certified and assigned to particular cases.
iv. assign the attorneys who will represent the defendant at each stage of every
case, except to the extent that the defendant has private attorneys;

The responsibility for assigning attorneys to represent indigent defendants in death
penalty cases is divided between the GCD and the judiciary. The GCD is charged with
representing at trial and on direct appeal indigent individuals charged with or convicted
of a capital felony unless there is a conflict of interest.176 In cases of a conflict of interest,
the judiciary is responsible for appointing counsel.177 These requirements, however,
extend only to death penalty trials and direct appeals, as indigent death-sentenced inmates
do not have the right to appointed counsel for state habeas corpus and clemency
proceedings.
v. monitor the performance of all attorneys providing representation in capital
proceedings;

174
175
176
177

See supra note 49 and accompanying text.
See supra note 86 and accompanying text.
See supra notes 75-76 and accompanying text.
Id.

160

When adopting the GPDSC Death Penalty Defense Standards, the GPDSC accepted
responsibility for monitoring the GCD, but in cases of conflict of interest, the GPDSC
relies on the judiciary to monitor and remove attorneys who fail to provide high quality
legal representation.178 However, if the GPDSC is made aware of an attorney’s deficient
performance, the GPDSC “may attempt to investigate the problems and document them
for the judge.”179
vi. periodically review the roster of qualified attorneys and withdraw
certification from any attorney who fails to provide high quality legal
representation consistent with these Guidelines;

Given that there does not appear to be a roster of qualified attorneys, there is no
mechanism for removing attorneys who fail to provide high quality legal representation.
vii. conduct, sponsor, or approve specialized training programs for attorneys
representing defendants in death penalty cases; and

The GPDSC is authorized to conduct and approve training programs, but it appears that
these programs are for circuit public defenders, rather than for attorneys handling death
penalty cases.180 The GCD, however, conducts and sponsors two specialized training
programs each year that focus on representing defendants in death penalty cases.181
viii. investigate and maintain records concerning complaints about the
performance of attorneys providing representation in death penalty cases
and take appropriate corrective action without delay.

Given that the GDPSC and the judiciary have divided the responsibility for monitoring
attorneys who handle death penalty cases, it would appear that the duty to investigate and
maintain records concerning complaints about the performance of these attorneys would
be shouldered by these two entities respectively. But it is unclear whether either entity is
currently investigating and maintaining records concerning complaints about the
performance of attorneys providing representation in death penalty cases and taking
appropriate corrective action without delay.
In conclusion, the State of Georgia has failed to remove the judiciary from the attorney
training, selection, and monitoring process. Not only is the GPDSC—the body
responsible for “assuring [] adequate and effective legal representation . . . independently
of political considerations or private interests”—composed partially of judges, but the
State of Georgia requires judges to appoint attorneys and to monitor the performance of
these attorneys in cases of a conflict of interest. Additionally, the State of Georgia has
not vested with one or more independent entities all of the responsibilities contained in

178
179
180
181

DEATH P ENALTY DEFENSE S TANDARDS, supra note 66.
Id.
O.C.G.A. § 17-12-9 (2005).
See supra notes 94-96 and accompanying text.

161

Recommendation #3. For example, no independent entity within the State of Georgia is
responsible for drafting or publishing a roster of certified attorneys or for monitoring,
investigating, and maintaining records concerning the performance of all attorneys
handling death penalty cases. Based on this information, the State of Georgia is not in
compliance with Recommendation #3.
D. Recommendation # 4
Compensation for Defense Team (Guideline 9.1 of the ABA Guidelines on the
Appointment and Performance of Defense Counsel in Death Penalty Cases):
a. The jurisdiction should ensure funding for the full cost of high quality legal
representation, as defined by the ABA Guideline 9.1, by the defense team and
outside experts selected by counsel.182

The State of Georgia provides funding to the GCD for its staff, including GCD attorneys,
clerks, investigators, paraprofessionals, administrative assistants, and for conflict
attorneys and any necessary investigators and experts. The budget for the GCD was based
on a projected forty death penalty cases and an additional nine conflict death penalty
cases per year.183 For these conflict cases, the GCD set aside in the GCD budget
approximately $360,000 per case—$240,000 for attorneys fees and $120,000 for experts
and investigation.184 However, as of early December 2005, forty-seven capital
prosecutions had commenced.185 Thus, it remains to be seen whether there will be
enough money in the GCD budget to cover the costs associated with all of these cases.
Although the State of Georgia does not provide counsel or resources to indigent deathsentenced inmates petitioning for state habeas corpus or clemency relief, it does provide
limited funding—approximately $800,000 per year—to the Georgia Appellate Practice
and Resource Center, which provides assistance to death-sentenced inmates seeking state
habeas corpus relief and/or federal habeas corpus relief.
b. Counsel in death penalty cases should be fully compensated at a rate that is
commensurate with the provision of high quality legal representation and
reflects the extraordinary responsibilities inherent in death penalty
representation.

182

In order for a state to ensure funding for the “full cost of high quality legal representation,” it must be
responsible for “paying not just the direct compensation of members of the defense team, but also the costs
involved with the requirements of the[] Guidelines for high quality representation (e.g. Guideline 4.1
[Recommendation #1], Guideline 8.1 [Recommendation #5]).” See American Bar Association, ABA
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 HOFSTRA
L. R EV. 913, 984-85 (2003).
183
Georgia Public Defender Standards Council, Meeting Minutes (Aug. 22, 2003), at
http://www.gpdsc.com/aboutus-council-minutes-minutes_08-22-03%20.pdf (last visited on Oct. 28, 2005).
184
Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author).
185
Id.

162

i.

Flat fees, caps on compensation, and lump-sum contracts are improper in
death penalty cases.
ii. Attorneys employed by defender organizations should be compensated
according to a salary scale that is commensurate with the salary scale of the
prosecutor’s office in the jurisdiction.
iii. Appointed counsel should be fully compensated for actual time and service
performed at an hourly rate commensurate with the prevailing rates for
similar services performed by retained counsel in the jurisdiction, with no
distinction between rates for services performed in or out of court. Periodic
billing and payment should be available.

The compensation for representing an indigent individual charged with a capital felony
depends on whether the attorney is a GCD attorney or a conflict attorney appointed by
the court. All GCD attorneys are salaried employees earning between $68,000 and
$89,000.186 The GCD determined this salary by consulting the State Merit System of
Personnel Administration (State Merit System) for an analysis of workload.187 The
salaries of assistant district attorneys are also based on the State Merit System, but the
salaries for assistant district attorneys range from $38,892 to $89,034.188 This salary
range, however, is not limited to assistant district attorneys who routinely handle death
penalty cases, but includes all assistant district attorneys. Therefore, although it appears
that the ranges for GCD attorneys and assistant district attorneys are nearly
commensurate, we cannot state this with any certainty, as the specific salary range for
assistant district attorneys who routinely handle death penalty cases is unknown.
In contrast, conflict attorneys handling death penalty trials and direct appeals are “paid
with state funds appropriated to the [GPDSC] for use by the [GCD]”189 at an hourly rate
of $125.00. 190 This rate applies to both in and out of court work and there does not
appear to be a cap on the amount of compensation an attorney can receive for his/her
work. Additionally, the GPDSC provides for periodic billing and payment to conflict
attorneys.191
c. Non-attorney members of the defense team should be fully compensated at a
rate that is commensurate with the provision of high quality legal representation
and reflects the specialized skills needed by those who assist counsel with the
litigation of death penalty cases.
i. Investigators employed by defender organizations should be compensated
according to a salary scale that is commensurate with the salary scale of the
prosecutor’s office in the jurisdiction.

186

See supra note 58 and accompanying text.
See supra note 57 and accompanying text.
188
State
of
Georgia
Merit
System,
Alphabetic
List
of
Job
Titles,
at
http://www.gms.state.ga.us/jobdescriptions/downloads/alphabetic.pdf (last visited on Oct. 28, 2005).
189
See supra note 59 and accompanying text.
190
See supra note 65 and accompanying text.
191
Georgia Public Defender Standards Council, Death Penalty Conflict Defender Fee Claim Form, at
http://www.gidc.com/cpdsystem-forms-conflict-dp-fee_claim.doc (last visited on Oct. 28, 2005).
187

163

ii. Mitigation specialists and experts employed by defender organizations
should be compensated according to a salary scale that is commensurate
with the salary scale for comparable expert services in the private sector.
iii. Members of the defense team assisting private counsel should be fully
compensated for actual time and service performed at an hourly rate
commensurate with prevailing rates paid by retained counsel in the
jurisdiction for similar services, with no distinction between rates for
services performed in or out of court. Periodic billing and payment should
be available.

The GCD currently employs ten investigators and one forensic social worker.192
Investigators appointed to assist a circuit public defender with the preparation of cases for
trial are compensated based on a salary range that is not less than $30,828.00 but no more
than 70 percent of the compensation of the circuit public defender from state funds,193 but
this salary range appears to apply only to investigators with the circuit public defender
offices and not to those with the GCD. Given that the salary range for GCD investigators
and experts is unknown, we cannot assess whether the salaries for these employees are
commensurate with the salary scale of the prosecutor’s office. Similarly, the rate and
manner by which experts and investigators hired by GCD or conflict attorneys are paid is
also unclear.
d. Additional compensation should be provided in unusually protracted or
extraordinary cases.

In unusually protracted or extraordinary cases in which a GCD attorney is providing
representation, the issue of additional compensation is technically not a concern as these
attorneys are salaried employees.194 Similarly, in cases in which an appointed attorney is
providing representation, it appears that these attorneys would be compensated for their
time in protracted or extraordinary cases given that these attorneys are paid at an hourly
rate.195
e. Counsel and members of the defense team should be fully reimbursed for
reasonable incidental expenses.

Based on the text of the GPDSC “Death Penalty Conflict Defender Claim Form,” it
appears that conflict attorneys may be reimbursed for “other expenses,” including
mileage, which is reimbursed at .485 per mile.196

192

Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author).
O.C.G.A. § 17-12-28(d) (2005).
194
See supra note 58.
195
See supra note 65.
196
Georgia Public Defender Standards Council, Death Penalty Conflict Defender Fee Claim Form, at
http://www.gidc.com/cpdsystem-forms-conflict-dp-fee_claim.doc (last visited on Oct. 27, 2005); see also
Georgia
Public
Defender
Standards
Counsel,
Announcements
and
Forms,
at
http://www.gpdsc.com/cpdsystem-cpdinfo-main.htm (last visited Oct. 28, 2005) (stating that effective Sept.
10, 2005, the state mileage reimbursement rate increased from .28 to .485 per mile).
193

164

In conclusion, we did not obtain sufficient information about the GCD budget to
appropriately assess whether the State of Georgia has ensured funding for the full cost of
high quality legal representation. We note, however, that if the number of death penalty
cases has surpassed the number of cases for which the GCD budget was based upon, the
sufficiency of funds provided to the GCD may be in question. Additionally, we cannot
assess parity between GCD attorneys and assistant district attorneys and between GCD
investigators or experts and assistant district attorneys with respect to salaries, as the
salaries paid to assistant district attorneys who routinely handle death penalty cases is
unknown and the salaries paid to GCD investigators and experts is unknown. Therefore,
we are unable to assess whether the State of Georgia is in compliance with
Recommendation #4.
E. Recommendation #5
Training (Guideline 8.1 of the ABA Guidelines on the Appointment and
Performance of Defense Counsel in Death Penalty Cases)
a. The jurisdiction should provide funds for the effective training, professional
development, and continuing education of all members of the defense team.

The State of Georgia provides funding for the training, professional development, and
continuing education for some, but not all, members of the defense team. The GPDSC is
authorized to conduct and approve training programs, but it appears that these programs
are for circuit public defenders, rather than for attorneys handling death penalty cases.197
The GCD, however, conducts and sponsors two specialized training programs each year
that focus on representing defendants in death penalty cases.198 In addition to training
programs for attorneys, the GPDSC also provides training for investigators and forensic
scientists.199
Additionally, the State Bar of Georgia requires attorneys to participate in a minimum of
twelve hours of continuing legal education each year.200 For trial attorneys, the twelve

197

O.C.G.A. § 17-12-9 (2005).
Georgia Capital Defender, Training, at http://www.gacapdef.org/main.htm (last visited on Oct. 28,
2005); see, e.g., Georgia Capital Defender, 13th Annual Capital Defense Training Seminar, “The NittyGritty of Capital Defense,” Agenda (Feb. 4-6, 2005) (on file with author); Agenda, “We Who Believe In
Justice Cannot Rest,” Annual Capital Defense Training Seminar (July 8-9, 2005) (on file with author).
199
Georgia
Public
Defender
Standards
Council,
2005
Training
Schedule,
at
http://www.gpdsc.com/resources-training-main.htm (last visited on Oct. 28, 2005).
200
STATE B AR OF GA., 2005-2006 H ANDBOOK R. 8-104, at H-143 (rule on Education Requirements and
Exemptions),
at
http://www.gabar.org/handbook/part_viii_continuing_lawyer_competency/rule_8104_education_requirements_and_exemptions/ (last visited on Oct. 28, 2005); see also State Bar of
Georgia,
Mandatory
Continuing
Legal
Education
FAQ,
at
http://www.gabar.org/programs/continuing_legal_education/mandatory_continuing_legal_education_faq/
(last visited on Oct. 28, 2005).
198

165

hours must include at least three hours of trial practice.201 Accredited CLE sponsors
within the State of Georgia include the GPDSC, the Georgia Association of Criminal
Defense Lawyers, and Georgia Defense Lawyers Association.202
b. Attorneys seeking to qualify to receive appointments should be required to
satisfactorily complete a comprehensive training program, approved by the
independent appointing authority, in the defense of capital cases. Such a
program should include, but not be limited to, presentations and training in the
following areas:
i. relevant state, federal, and international law;
ii. pleading and motion practice;
iii. pretrial investigation, preparation, and theory development regarding
guilt/innocence and penalty;
iv. jury selection;
v. trial preparation and presentation, including the use of experts;
vi. ethical considerations particular to capital defense representation;
vii. preservation of the record and of issues for post-conviction review;
viii. counsel’s relationship with the client and his family;
ix. post-conviction litigation in state and federal courts;
x. the presentation and rebuttal of scientific evidence, and developments in
mental health fields and other relevant areas of forensic and biological
science;
xi. the unique issues relating to the defense of those charged with committing
capital offenses when under the age of 18.

When adopting the ABA Guidelines as the GPDSC Death Penalty Defense Standards, the
GPDSC noted that, “Guideline 8.1 requires training and professional development by
members of the defense team and invites GPDSC to adopt a minimum training standard
for Georgia.”203 As a result, the GPDSC adopted and endorsed the preexisting training
requirements contained in the Unified Appeal Procedure.204 Unified Appeal Rule II(A)
specifically requires all trial attorneys and appellate attorneys handling death penalty
cases to receive at least ten hours of specialized training within twelve months prior to
appointment or agree to take the ten hours during the pendency of the trial.205
The Unified Appeal Procedure does not require the specialized training to include
presentations and training on all of the issues listed above. Rather, it only requires that
the trial attorneys’ training to be on “death penalty defense” while the appellate
attorneys’ training must relate to “post-conviction appeals and appellate procedures
201

State
Bar
of
Georgia,
Mandatory
Continuing
Legal
Education
FAQ,
at
http://www.gabar.org/programs/continuing_legal_education/mandatory_continuing_legal_education_faq/
(last visited on Oct. 28, 2005).
202
State
Bar
of
Georgia,
Accredited
CLE
Sponsors,
at
http://www.gabar.org/programs/continuing_legal_education/accredited_cle_sponsors/ (last visited on Oct.
28, 2005).
203
DEATH P ENALTY DEFENSE S TANDARDS, supra note 66.
204
Id.
205
GA. U NIFIED APPEAL R. II(A).

166

relating to post-conviction appeals.”206 Training on “death penalty defense” certainly
could include presentations and training on all of the issues listed above, but attorneys are
not required to take training that covers all of these issues.
c. Attorneys seeking to remain on the roster or appointment roster should be
required to attend and successfully complete, at least once every two years, a
specialized training program approved by the independent appointing authority
that focuses on the defense of death penalty cases.

As discussed under Recommendation #3, it does not appear that any entity within the
State of Georgia has developed and/or maintains a roster of eligible attorneys.
Regardless, the Unified Appeal Procedure does require attorneys handling death penalty
trials or direct appeals to complete ten hours of specialized training before being
appointed or during the pendency of a death penalty trial.207
d. The jurisdiction should insure that all non-attorneys wishing to be eligible to
participate on defense teams receive continuing professional education
appropriate to their areas of expertise.

As indicated above, the GPDSC offers training to investigators and forensic scientists,208
but these individuals and other non-attorneys in the defense team are not required to take
such training.
In conclusion, the State of Georgia provides funding for training, professional
development, and continuing legal education for some, but not all, members of the
defense team. Therefore, the State of Georgia is only in partial compliance with
Recommendation #5.

206
207
208

Id.
Id.
See supra note 199 and accompanying text.

167

168

CHAPTER SEVEN
THE DIRECT APPEAL PROCESS
INTRODUCTION TO THE ISSUE
Every death-row inmate must be afforded at least one level of judicial review.1 This
process of judicial review is called the direct appeal. As the U.S. Supreme Court stated in
Barefoot v. Estelle, “[d]irect appeal is the primary avenue for review of a conviction of
sentence, and death penalty cases are no exception.”2 The direct appeal process in
capital cases is designed to correct any errors in the trial court’s findings of fact and law
and to determine whether the trial court’s actions during the guilt/innocence and
sentencing phases of the trial were unlawful, excessively severe, or an abuse of
discretion.
One of the best ways to ensure that the direct appeals process works as it is intended is
through meaningful comparative proportionality review. Comparative proportionality
review is the process through which a sentence of death is compared with sentences
imposed on similarly situated defendants to ensure that the sentence is not
disproportionate. Meaningful comparative proportionality review helps to (1) ensure that
the death penalty is being administered in a rational, non-arbitrary manner, (2) provide a
check on broad prosecutorial discretion, and (3) prevent discrimination from playing a
role in the capital decision-making process.
Comparative proportionality review is the most effective method of protecting against
arbitrariness in capital sentencing. In most capital cases, juries determine the sentence,
yet they are not equipped and do not have the information necessary to evaluate the
propriety of that sentence in light of the sentences in similar cases. In the relatively small
number of cases in which the trial judge determines the sentence, proportionality review
still is important, as the judge may be unaware of statewide sentencing practices or be
affected by public or political pressure. Regardless of who determines the sentence,
dissimilar results are virtually ensured without the equalizing force of proportionality
review.
Simply stating that a particular death sentence is proportional is not enough, however.
Proportionality review should not only cite previous decisions, but should analyze their
similarities and differences and the appropriateness of the death sentence. In addition,
proportionality review should include cases in which a death sentence was imposed,
cases in which the death penalty was sought but not imposed, and cases in which the
death penalty could have been sought, but was not.

1
2

Gregg v. Georgia, 428 U.S. 153 (1976).
Barefoot v. Estelle, 463 U.S. 880, 887 (1983).

169

Because of the role that meaningful comparative proportionality review can play in
eliminating arbitrary and excessive death sentences, states that do not engage in the
review, or that do so only superficially, substantially increase the risk that their capital
punishment systems will function in an arbitrary and discriminatory manner.

170

I. FACTUAL DISCUSSION
The defendant may challenge his/her conviction and death sentence by filing a notice of
direct appeal with the Georgia Supreme Court3 within 30 days of the entry of his/her
judgment and sentence, except in cases in which the defendant filed a motion for a new
trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the
verdict.4 In these cases, the notice must be filed within thirty days after the entry of the
order on the motion.5 One filing extension, not to exceed thirty days, may be granted at
the discretion of the Court. 6
However, the defendant need not file an appeal.7 If the defendant does not initiate any
sort of review and does not file a motion for new trial,8 the case will automatically be
appealed to the Georgia Supreme Court within ten days of the filing of the trial transcript
by the court reporter of the superior court.9 This automatic review of the defendant’s
death sentence will occur even if the defendant does not wish to appeal his/her conviction
or sentence.10
A. Review of the Defendant’s Death Sentence
Regardless of whether the defendant files a direct appeal enumerating assertions of trial
court error, the Georgia Supreme Court must review all death sentences.11 If a direct
appeal is filed, it must be consolidated with the Georgia Supreme Court’s review of the
defendant’s death sentence.12 In cases in which the defendant does not file a notice of
appeal, the state and defense counsel may submit briefs and present oral arguments on the
issue of the death sentence.13
In reviewing the death sentence, the Court must determine the following:
1.

Whether the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor;

3

O.C.G.A. §§ 5-6-34(a)(1), -37 (2005). For a review of rules relating to time requirements for filing a
notice of appeal and appellate briefs, and parameters of oral arguments, see supra ch. 1, pt. III.D.2.
4
O.C.G.A. § 5-6-38(a) (2005).
5
Id.
6
O.C.G.A. § 5-6-39(a)(1), (c) (2005).
7
GA. UNIFIED A PPEAL R. IV(A)(3)(a); O.C.G.A. § 17-10-35 (2005).
8
Georgia provides an outlet for review before one files a direct appeal. The “sole function” of this
motion for new trial is to “bring to the attention of the superior court after imposition of sentence such
grounds as defense counsel may wish the trial court to decide.” GA. U NIFIED APPEAL R. IV(A)(2).
9
GA. UNIFIED A PPEAL R. IV(A)(3)(a)(1); O.C.G.A. § 17-10-35 (2005).
10
GA. UNIFIED A PPEAL R. IV(A)(1)(a).
11
GA. UNIFIED A PPEAL R. IV(A)(1)(a), (A)(3)(a)(2).
12
O.C.G.A. § 17-10-35(f) (2005).
13
O.C.G.A. § 17-10-35(d) (2005).

171

2.

3.

Whether, in cases other than treason or aircraft hijacking, the evidence
supports the jury’s or judge’s finding of a statutory aggravating
circumstance; and
Whether the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the
defendant.14

1. Imposing a Death Sentence Under the Influence of Passion, Prejudice, or Any
Other Arbitrary Factor.
The Georgia Supreme Court has defined “passion” as not encompassing all emotion, “but
only that engendered by prejudice, particularly racial prejudice . . . or [prejudice towards]
religious preference.”15 The term “arbitrary factor” also refers to those factors used in the
decision to impose the death penalty, such as race or religion,16 or the victim’s class or
wealth.17
In considering whether the sentence was imposed under the influence of passion,
prejudice, or any other arbitrary factor, the Court must consider whether “any allegedlyimproper arguments that were not objected to at trial in reasonable probability” changed
the jury’s “exercise of discretion to elect between life imprisonment and death.”18
Some legitimate victim impact evidence could “inflame or unduly prejudice a jury if
admitted in excess.”19 Additionally, a closing argument, considered in its entirety, may
be “so prejudicial or offensive, or involve[] such egregious misconduct on the part of the
prosecutor as to require reversal” on the basis that the death sentence was “impermissibly
influenced by passion, prejudice, or another arbitrary factor.20
2. Sufficiency of the Evidence Found to Support the Jury’s or Judge’s Finding of
a Statutory Aggravating Circumstance
In assessing the sufficiency of the evidence supporting a defendant’s death sentence, the
Georgia Supreme Court will first identify the statutory aggravating circumstance(s)21 that

14

O.C.G.A. § 17-10-35(c) (2005).
Livingston v. State, 444 S.E.2d 748, 751 (Ga. 1994) (quoting Connor v. State, 303 S.E.2d 266, 275
(Ga. 1983)).
16
Lawler v. State, 576 S.E.2d 841, 846 (Ga. 2003).
17
Livingston, 444 S.E.2d at 751.
18
Gissendaner v. State, 532 S.E.2d 677, 688 (Ga. 2000) (concluding that there was not a reasonable
probability that the comment in the prosecutor’s closing argument that the defendant was “evil” changed
the jury’s exercise of discretion in choosing between life imprisonment and death).
19
Livingston, 444 S.E.2d at 751.
20
Spivey v. State, 319 S.E.2d 420, 427 (Ga. 1984); see also Ingram v. State, 323 S.E.2d 801, 814 (Ga.
1984).
21
O.C.G.A. § 17-10-30 (2005).
15

172

the jury or the judge relied on for its imposition of a death sentence.22 The Court will
then review the relevant evidence presented at both the guilt/innocence and sentencing
phases to determine whether the evidence presented was sufficient to support the claimed
aggravating circumstance(s) beyond a reasonable doubt.23
3. Imposing a Death Sentence That Is Excessive or Disproportionate to the
Penalty Imposed in Similar Cases, Considering Both the Crime and the
Defendant
Section 17-10-35(c)(3) of the O.C.G.A. requires that, in reviewing the proportionality of
a defendant’s death sentence, the Court must determine “[w]hether the sentence of death
is excessive or disproportionate to the penalty imposed in similar cases, considering both
the crime and the defendant.”24 The Georgia Supreme Court, noting that the facts
surrounding two capital felony cases will rarely be “exactly alike,” is not required to find
identical cases for comparison when performing the proportionality review.25
Additionally, in cases where multiple defendants have received different sentences (e.g.,
one life imprisonment without the possibility of parole and the other death), the Court
will take into account the “difference in age and the extent of admitted culpability” of
each defendant in determining whether a particular death sentence is disproportionate to
that of the co-conspirator.26
Both state and federal case law have prohibited the imposition of the death penalty for the
offenses of armed robbery, rape, and kidnapping for ransom or with bodily injury where
the victim is not killed, because the death penalty is excessive and disproportionate either
to the crimes themselves or to the sentences imposed in similar cases.27 Regardless of
whether the Georgia Supreme Court finds that the death sentence is or is not

22

See, e.g., Presnell v. State, 551 S.E.2d 723, 727-28 (Ga. 2001) (noting that the jury found beyond a
reasonable doubt the defendant committed the murder while engaged in the commission of kidnapping with
bodily injury and that the murder was outrageously or wantonly vile, horrible, or inhuman in that it
involved torture and depravity of mind).
23
See, e.g., Riley v. State, 604 S.E.2d 488, 493-94 (Ga. 2004) (considering facts about the crime and the
defendant adduced at trial); Presnell, 551 S.E.2d at 728 (considering facts adduced at the re-sentencing
phase).
24
O.C.G.A. § 17-10-35(c)(3) (2005).
25
Wilson v. Zant, 290 S.E.2d 442, 454 (Ga. 1982), overruled on other grounds by Morgan v. State, 476
S.E.2d 747, 749-50 (Ga. 1996).
26
Allen v. State, 321 S.E.2d 710, 716 (Ga. 1984).
27
See Coker v. Georgia, 433 U.S. 584, 591 (1977); Eberheart v. Georgia, 433 U.S. 917 (1977), rev’g 206
S.E.2d 12 (Ga. 1974); Collins v. State, 236 S.E.2d 759, 760-61 (Ga. 1977), superseded by constitutional
amendment, Ga. Const. art. VI, § VI, paras. II, III, as recognized in Collins v. American Tel. & Tel. Co.,
456 S.E.2d 50 (Ga. 1995); Jarrell v. State, 216 S.E.2d 258, 270 (Ga. 1975); Floyd v. State, 210 S.E.2d 810,
814 (Ga. 1974); Gregg v. State, 210 S.E.2d 659, 667 (Ga. 1974); see also Sears v. State, 514 S.E.2d 426,
434 (Ga. 1999) (recognizing a sentence of death for the offense of kidnapping with bodily injury may be
imposed where the victim was killed); Moore v. State, 243 S.E.2d 1, 11 (Ga. 1978) (upholding a sentence
of death for the offense of rape where the victim was raped and then killed); Stanley v. State, 241 S.E.2d
173, 180 (Ga. 1977) (upholding a sentence of death for the offense of kidnapping with bodily injury where
the victim was killed).

173

disproportionate or excessive in light of the acts committed by the defendant, it must
provide an appendix to the opinion identifying the list of similar cases it considered in
performing its proportionality review.28
B. Types of Reviewable Trial Errors
The Georgia Supreme Court will consider the following types of trial error on direct
appeal from a capital conviction and sentence of death:
1. Trial Errors Properly Preserved in the Superior Court and Timely Raised
and/or Argued in the Georgia Supreme Court
Generally, the Georgia Supreme Court will not consider grounds that were not first
properly raised before the trial court.29 “In order to [properly] preserve an objection upon
a specific ground for appeal, the objection must be made at trial upon that specific
ground,”30 and the defendant’s objection itself must be specific and not merely a
statement that s/he objects.31 Thus, a failure to make a specific and timely objection to
error at trial may be treated as a waiver on appeal. In addition to requiring the defendant
to properly preserve trial court error, s/he must also timely “raise[] and/or argue[]” these
errors in the Georgia Supreme Court, except in cases of plain error, to avoid a waiver of
those grounds on appeal.32
Although the Georgia Supreme Court must review errors timely preserved in the superior
court, regardless of whether an assertion of error was subsequently presented to the
superior court by motion for a new trial,33 where the defendant receives new counsel for
his motion for new trial and fails to raise claims of ineffective assistance of trial counsel,
those claims are waived if raised for the first time on appeal.34 However, claims of
ineffective assistance of trial counsel may be raised for the first time on appeal if the
direct appeal marks the first appearance of new counsel.35

28

See O.C.G.A. § 17-10-35(e) (2005); see, e.g., Lewis v. State, 592 S.E.2d 405, 409 (Ga. 2004).
Scott v. State, 507 S.E.2d 728, 729 (Ga. 1998) (quoting Barnes v. State, 496 S.E.2d 674, 687 (Ga.
1998)).
30
Villegas v. State, 558 S.E.2d 808, 809 (Ga. Ct. App. 2002).
31
Lancaster v. State, 558 S.E.2d 772, 773 (Ga. Ct. App. 2002).
32
Lynd v. State, 414 S.E.2d 5, 8 (Ga. 1992); GA. U NIFIED APPEAL R. IV(B)(2).
33
GA. UNIFIED A PPEAL R. IV(B)(2).
34
Thompson v. State, 359 S.E.2d 664, 665 (Ga. 1987) (holding that where trial counsel files motion for
new trial but new counsel files amended motion without raising claim of ineffectiveness of trial counsel,
that claim will be waived if raised for the first time on appeal).
35
See Owens v. State, 428 S.E.2d 793, 796 (Ga. 1993); Johnson v. State, 383 S.E.2d 115, 117 (Ga. 1989)
(remanding to the trial court for an evidentiary hearing on the issue of ineffective assistance of trial
counsel). It is unclear whether not raising a claim of ineffective assistance of trial counsel at first
opportunity on direct appeal would bar this claim in a subsequent habeas corpus proceeding. However, in a
non-death penalty case, the Georgia Supreme Court has suggested that a defendant “has a right to raise
th[e] issue [of ineffective assistance of counsel] once and have the issue determined on the merits only
once, either by direct appeal or in a habeas proceeding.” State Bd. of Corr. v. Smith, 233 S.E.2d 797, 79829

174

2. Plain Error
When the defendant does not properly preserve trial court error for appeal or fails to
timely raise that error on appeal, s/he waives that ground on appeal, unless the trial court
error rises to the level of “plain error.”36 “Plain error” exists when the trial court’s error
“seriously affected the fairness, integrity, and public reputation of [the] judicial
proceedings.”37 Although the Georgia Supreme Court allows for an exception to the
procedural bar in the case of plain error, the Georgia Supreme Court has never found
plain error in a case in which a death sentence was imposed.
C. Disposition of Appeal in Georgia Supreme Court
Following the review of the death sentence and any enumerations of error, the Georgia
Supreme Court may affirm the death sentence, or set aside the death sentence and remand
the case for resentencing, as well as sua sponte correct any errors found in the superior
court proceedings38 and vacate the conviction and remand to the superior court for further
proceedings.
D. Discretionary Review by the United States Supreme Court
If the Georgia Supreme Court affirms the death sentence, the defendant may petition for a
writ of certiorari with the United States Supreme Court.39 The petition must be filed
within ninety days of the judgment affirming the defendant’s death sentence.40 The
United States Supreme Court may decline or accept the defendant’s case for review.41 If
the United States Supreme Court reviews the case, the Court may affirm the conviction
and the sentence, affirm the conviction and overturn the sentence, or overturn both the
conviction and sentence.42

99 (Ga. 1977). It is unclear whether the Court’s decision applies to death cases, other than those where the
defendant does not seek appeal and only has mandatory review of his sentence by the Supreme Court.
36
Lynd, 414 S.E.2d at 8.
37
Paul v. State, 537 S.E.2d 58, 61 (Ga. 2000) (quoting Almond v. State, 349 S.E.2d 482, 486 (Ga. Ct.
App. 1986)); see also Owens, 428 S.E.2d at 795 (applying the plain error rule in a non-death penalty case).
38
O.C.G.A. §§ 17-10-35(e)(1), (2) (2005).
39
28 U.S.C. § 1257(a) (2005).
40
SUP. CT. R. 13(1).
41
SUP. CT. R. 16(2), (3).
42
28 U.S.C. § 2106 (2005).

175

II. ANALYSIS
A. Recommendation #1
In order to (1) ensure that the death penalty is being administered in a rational,
non-arbitrary manner, (2) provide a check on broad prosecutorial discretion, and
(3) prevent discrimination from playing a role in the capital decision making
process, direct appeals courts should engage in meaningful proportionality review
that includes cases in which a death sentence was imposed, cases in which the death
penalty was sought but not imposed, and cases in which the death penalty could
have been sought but was not.

Section 17-10-35(c)(3) of the O.C.G.A. requires that, in performing the proportionality
review of a defendant’s death sentence on direct appeal, the Georgia Supreme Court must
determine “[w]hether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant.”43
In performing its proportionality review by comparing sentences imposed in “similar
cases,” the Georgia Supreme Court could conceivably review cases in which (1) the death
penalty was imposed, (2) death penalty was sought but not imposed, and (3) the death
penalty could have been sought but was not. However, a thorough review of opinions in
which the Georgia Supreme Court has upheld a death sentence as proportional in light of
the acts committed by the defendant demonstrates that the Court does not conduct the
expansive review required by this Recommendation. Rather, in cases in which a death
sentence has been imposed on a defendant, the Court generally limits its review to and
includes in its appendix44 cases in which the death penalty was actually imposed upon
similar circumstances.45 In fact, in fifty-five death sentence cases between 1994 and
2004, the Georgia Supreme Court’s proportionality review consisted of reviewing only
cases in which a death sentence had been imposed.46 It appears, however, that in cases in
which a death sentence has been imposed on a defendant who committed the crime with a
co-conspirator, the Court not only reviews cases where the death penalty has been

43

O.C.G.A. § 17-10-35(c)(3) (2005)..
See O.C.G.A. § 17-10-35(e) (2005).
45
See, e.g., Lewis v. State, 592 S.E.2d 405, 409 (Ga. 2004); Riley v. State, 604 S.E.2d 488, 500 (Ga.
2004); Brannan v. State, 561 S.E.2d 414, 429 (Ga. 2002); McPherson v. State, 553 S.E.2d 569, 578 (Ga.
2001).
46
Note, Clark Calhoun, Reviewing the Supreme Court’s Efforts at Proportionality Review, 39 GA. L.
REV. 631, 657-58 (2005). In 1982, the Georgia Supreme Court noted that, in addition to cases in which the
death penalty had been imposed, it considered cases in which the death penalty could have been imposed
but was not. Id. (citing Horton v. State, 295 S.E.2d281, 289 n.9 (Ga. 1982)). As early as 1984, however,
the Georgia Supreme Court had already rejected a claim that only using death sentence cases in its
proportionality review was error. See id. (citing Felker v. State, 314 S.E.2d 621, 649 (Ga. 1984)). Since
1994, it appears that the Georgia Supreme Court no longer considers in its proportionality review cases
where the death penalty was sought but not imposed. Id.
44

176

imposed, but also the case of and sentence imposed on the co-conspirator who received a
sentence other than death.47
In its opinion, the Georgia Supreme Court will generally identify the nature of the offense
committed and then state the outcome of its proportionality review.48 A review of death
penalty cases in Georgia reveals that the Georgia Supreme Court includes only a short
explanation of the outcome of its proportionality review. This explanation generally
consists of one or two sentences at the end of the opinion repeating the language of
section 17-10-35(c)(3) by stating, “[T]he death sentence is not disproportionate to the
penalty imposed in similar cases, considering both the crimes and the defendant. The
similar cases listed in the Appendix support the imposition of the death penalty in this
case.”49
Given that the Georgia Supreme Court, in performing its proportionality review,
generally only reviews cases in which a death sentence has been imposed, only expands
that review to cases where the death penalty was not imposed upon a claim by the
defendant that his/her sentence is disproportionate to that of his/her co-conspirator, and
explains its proportionality review in a cursory manner, the State of Georgia only
partially meets the requirements of Recommendation #1.

47

See, e.g., Gissendaner v. State, 532 S.E.2d 677, 691-92 (Ga. 2000); Waldrip v. State, 482 S.E. 2d 299,
313-14 (Ga. 1997) (noting that the fact that different juries hearing different evidence in separate cases of
co-conspirators might arrive at different punishment does not establish a claim of disproportionality); Allen
v. State, 321 S.E.2d 710, 716 (Ga. 1984).
48
See, e.g., Lewis, 592 S.E.2d at 409.
49
Calhoun, supra note 46, at 657 (citing Pye v. State, 505 S.E.2d 4, 14 (Ga. 1998)).

177

178

CHAPTER EIGHT
STATE POST-CONVICTION PROCEEDINGS
INTRODUCTION TO THE ISSUE
The availability of state post-conviction and federal habeas corpus relief through
collateral review of state court judgments long has been an integral part of the capital
punishment process. Very significant percentages of capital convictions and death
sentences have been set aside in such proceedings as a result of ineffective assistance of
counsel claims; claims made possible by the discovery of crucial new evidence; claims
based upon prosecutorial misconduct; unconstitutional racial discrimination in jury
selection; and other meritorious constitutional claims.
The importance of such collateral review to the fair administration of justice in capital
cases cannot be overstated. Because many capital defendants receive inadequate counsel
at trial and on direct appeal, and it is often not possible until after direct appeal to uncover
prosecutorial misconduct or other crucial evidence, state post-conviction proceedings
often provide the first real opportunity to establish meritorious constitutional claims. Due
to doctrines of exhaustion and procedural default, such claims, no matter how valid, must
almost always be presented first to the state courts before they may be considered in
federal habeas corpus proceedings.
Securing relief on meritorious federal constitutional claims in state post-conviction
proceedings or federal habeas corpus proceedings has become increasingly difficult in
recent years because of more restrictive state procedural rules and practices and more
stringent federal standards and time limits for review of state court judgments. Among
the latter are: a one-year statute of limitations on bringing federal habeas proceedings;
tight restrictions on evidentiary hearings with respect to facts not presented in state court
(no matter how great the justification for the omission) unless there is a convincing claim
of innocence; and a requirement in some circumstances that federal courts defer to state
court rulings that the Constitution has not been violated, even if the federal courts
conclude that the rulings are erroneous.
In addition, U.S. Supreme Court decisions and the Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA) have greatly limited the ability of a death-row inmate to
return to federal court a second time. Another factor limiting grants of federal habeas
corpus relief is the more frequent invocation of the harmless error doctrine; under recent
decisions, prosecutors no longer are required to show in federal habeas that the error was
harmless beyond a reasonable doubt in order to defeat meritorious constitutional claims.
Changes permitting or requiring courts to decline consideration of valid constitutional
claims, as well as the federal government's de-funding of resource centers for federal
habeas proceedings in capital cases, have been justified as necessary to discourage
179

frivolous claims in federal courts. In fact, however, a principal effect of these changes
has been to prevent death-row inmates from having valid claims heard or reviewed at all.
State courts and legislatures could alleviate some of the unfairness these developments
have created by making it easier to get state court rulings on the merits of valid claims of
harmful constitutional error. The numerous rounds of judicial proceedings does not mean
that any court, state or federal, ever rules on the merits of the inmate's claims--even when
compelling new evidence of innocence comes to light shortly before an execution. Under
current collateral review procedures, a “full and fair judicial review” often does not
include reviewing the merits of the inmate's constitutional claims.

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I. FACTUAL DISCUSSION
A. Overview of State Post-Conviction Proceedings
1. The Filing of Petitions for Writ of Habeas Corpus
Any person whose liberty is being restrained by virtue of a sentence imposed against
him/her by a state court of record may file a petition for writ of habeas corpus to
challenge the denial of his/her rights under the United States Constitution or the Georgia
Constitution.1 Generally, the petition must be filed with the superior court in the county
in which the petitioner is detained.2 The petitioner may amend his/her petition up to 120
days after filing the original petition.3 Unlike habeas petitions challenging other felony
convictions, there is no specified time limit for filing a petition for writ of habeas corpus
to challenge a conviction or sentence in cases where the death penalty has been imposed.4
The petition must set forth the following:
1.
2.
3.
4.
5.
6.

The proceedings in which the petitioner was convicted;
The date of the final judgment;
How the petitioner’s rights were violated;
All possible grounds of relief;
The claims raised at trial and direct appeal, if taken, providing appropriate
citations to the trial and appellate record; and
Any previous proceedings taken to secure relief from his/her conviction,
including state habeas corpus petitions, and in regard to state habeas
corpus petitions, all claims that were raised in the petition.5

The petitioner must verify the petition with his/her oath or the oath of someone acting on
his/her behalf.6 The petitioner must also attach to the petition any affidavits,7 records, or
other evidence supporting his/her allegations or explain why s/he was unable to attach the
necessary documents.8

1

O.C.G.A. §§ 9-14-41, -42(a) (2005).
O.C.G.A. § 9-14-43 (2005) (noting “if the petitioner is not in the custody or is being detained under the
authority of the United States, any of the several states other than Georgia, or any foreign state, the petition
must be filed in the superior court of the county in which the conviction and sentence which is being
challenged was imposed”).
3
GA. UNIF. SUPER . C T. R. 44.7.
4
O.C.G.A. § 9-14-42(c) (2005) (“Any action brought pursuant to this article shall be filed . . . within
four years in the case of a felony, other than one challenging a conviction for which a death sentence has
been imposed or challenging a sentence of death.”).
5
O.C.G.A. §§ 9-14-44, -51 (2005).
6
O.C.G.A. §§ 9-14-44 (2005).
7
All affidavits must include the address and telephone number of the affiant; must be accompanied by a
notice of the party’s intention to introduce it into evidence; and must be served upon the opposing party at
least ten days in advance of the date set for the hearing in the case. See O.C.G.A. § 9-14-48(c) (2005).
8
O.C.G.A. § 9-14-44 (2005).
2

181

After the petition is filed, the state9 will have 20 days to either file an answer to the
petition or move to dismiss the petition.10 An extension for the filing of the answer or the
motion to dismiss may be granted for good cause shown.11
A petitioner seeking a stay of execution during the pendency of the habeas proceeding is
not required to demonstrate a substantial likelihood of success on the merits to obtain a
stay of execution.12 Rather, the grant or denial of a stay of execution is within the sound
discretion of the habeas court, taking into account the circumstances of each case.13 The
habeas court should balance conveniences and considerations of whether greater harm
may be done by refusing than by granting the stay of execution.14 A stay may be granted,
but is not required to be granted, where a matter critical to the defendant’s claims is
pending in another case before the court.15
2. Post-Conviction Motions and Hearing on Petitions for Writ of Habeas Corpus
In all cases in which the petitioner is challenging, for the first time, state court
proceedings resulting in the death penalty, the superior court clerk of the county where
the petition was filed must, within ten days of the filing of the petition, serve a copy of
the petition upon the Executive Director of the Council of Superior Court Judges of
Georgia (the Council) thereby requesting assistance with the assignment of a judge to
hear the petition.16 Within thirty days of receipt of the copy of the petition, the President
of the Council must assign the case to a judge who is not within the circuit in which the
conviction or sentence was imposed.17
Once a judge has been assigned, s/he may schedule a preliminary conference with the
state and petitioner’s counsel.18 The judge may also enter a scheduling order.19 If the
petitioner desires to file pretrial motions, s/he must do so within sixty days after the filing
of the petition. 20 Similarly, the state’s motions must be filed within ninety days after the
filing of the petition.21 Additionally, if discovery is authorized it must be completed

9

This Section will refer to the respondent in a state habeas corpus proceeding, the prison warden, as the
“state.”
10
GA. UNIF. SUPER . C T. R. 44.3.
11
Id.
12
Zant v. Dick, 294 S.E.2d 508, 509 (Ga. 1982).
13
Id.
14
Id.
15
Williams v. Head, 533 S.E.2d 714, 714 (Ga. 2000) (granting a stay of execution where the issue of
whether electrocution is a constitutional form of punishment is pending in another case before the Georgia
Supreme Court).
16
O.C.G.A. §§ 9-14-47.1(b), 15-1-9.1(b)(3) (2005); GA. UNIF. SUPER . C T. R. 44.2.
17
O.C.G.A. § 9-14-47.1(b) (2005); GA. UNIF. S UPER. CT. R. 44.4(A).
18
GA. UNIF. SUPER . C T. R. 44.5.
19
Id.
20
O.C.G.A. § 9-14-47.1(c)(3) (2005); G A. UNIF. S UPER. CT. R. 44.6.
21
O.C.G.A. § 9-14-47.1(c)(3) (2005); G A. UNIF. S UPER. CT. R. 44.6.

182

within 120 days after the filing of the petition.22 The evidentiary hearing must be
conducted within 180 days of the filing of the petition.23
Within sixty days after the evidentiary hearing, the petitioner may file a brief in support
of his/her petition,24 and if directed by the court, s/he “shall file proposed findings of fact
and conclusions of law and a proposed order.”25 Within ninety days after the evidentiary
hearing, the state may file a brief in response, and, if directed by the court, the state “shall
file proposed findings of fact and conclusions of law and a proposed order.”26 Within
100 days after the evidentiary hearing, the petitioner may file a reply brief.27 The
assigned judge has the discretion to shorten the time periods for various actions in a
habeas corpus proceeding or lengthen these periods for “good cause.”28
3. Decisions on Petitions for Writ of Habeas Corpus
The judge must issue a ruling on the petition and written findings of fact and conclusions
of law within ninety days of the filing of the state’s brief, or the petitioner’s reply brief, if
filed.29 If the judge finds in favor of the petitioner, s/he must “enter an appropriate order
with respect to the judgment or sentence challenged in the proceedings and such
supplementary orders as to re-arraignment, retrial, custody, or discharges as may be
necessary and proper.”30
4. Appealing Decisions on Petitions for Writ of Habeas Corpus
In cases in which the petition is denied, the petitioner may appeal the decision by filing
with the clerk of the Georgia Supreme Court a written application for “a certificate of
probable cause to appeal” and a notice of appeal with the clerk of the relevant superior
court within thirty days from entry of the order denying relief. 31 “A certificate of
probable cause to appeal a final judgment in a habeas corpus case involving a criminal
conviction will be issued where there is arguable merit.”32 In considering whether
probable cause exists to appeal, the Georgia Supreme Court may consider the record and

22

GA. UNIF. SUPER . C T. R. 44.7.
O.C.G.A. § 9-14-47.1(c)(4) (2005); GA. UNIF. SUPER . C T. R. 44.9. A court reporter must transcribe the
evidentiary hearing and make available copies of the transcript to the parties and the court within thirty
days after the evidentiary hearing. GA. UNIF. SUPER . CT. R. 44.10.
24
O.C.G.A. § 9-14-44 (2005); UNIF. S UPER . C T. R. 44.11.
25
GA. UNIF. SUPER . C T. R. 44.11.
26
Id.
27
Id.
28
GA. UNIF. SUPER . C T. R. 44.5.
29
GA. UNIF. SUPER . C T. R. 44.12.
30
O.C.G.A. § 9-14-48(d) (2005).
31
O.C.G.A. § 9-14-52(b) (2005). It should be noted that in cases in which the petitioner is granted relief,
the state may appeal without obtaining a certificate of probable cause. See O.C.G.A. § 9-14-52(c) (2005).
32
GA. SUP . C T. R. 36.
23

183

transcript.33 If the Court finds that probable cause to appeal does exist, the proper
standard of review on appeal “requires that [the reviewing court] accept the habeas
court’s factual findings and credibility determinations unless clearly erroneous, but [the
reviewing court will] independently apply the legal principles to the facts.”34 If the Court
finds that probable cause does not exist to appeal, the application will be denied.
The petitioner may seek review of this denial by petitioning for a writ of certiorari with
the United States Supreme Court.35
B. Procedural Restrictions on Petitions for Writ of Habeas Corpus
1. Claims Already Raised and Disposed of on Direct Appeal
Issues raised on appeal and reviewed by an appellate court will not generally be reviewed
in a habeas corpus proceeding.36 However, a barred claim would likely be allowed in a
habeas corpus proceeding if a change in the law might render a challenge based on that
claim successful.37
2. Claims That Could Have Been Timely Objected to at Trial or Raised on
Direct Appeal
A failure to make a timely objection to any alleged error or deficiency at trial, or failure
to pursue the same on appeal, generally will preclude review in a subsequent habeas
corpus proceeding.38 Thus, claims that could have been raised at trial or on direct appeal
are procedurally defaulted for the purpose of collateral review. However, a habeas
corpus court may still review “alleged constitutional errors or deficiencies if there shall
be a showing of adequate cause for failure to object or to pursue on appeal and a showing
of actual prejudice to the accused.”39 If the petitioner cannot demonstrate sufficient cause

33

O.C.G.A. § 9-14-52(b) (2005) (noting that the superior court transmits to the Georgia Supreme Court
the record and the transcript).
34
West v. Waters, 533 S.E.2d 88, 90 (Ga. 2000) (citing Zant v. Means, 522 S.E.2d 449 (1999)).
35
28 U.S.C. § 1257(a) (2005).
36
See Brown v. Ricketts, 213 S.E.2d 672, 673 (Ga. 1975) (holding that “[i]t is not the function of state
habeas corpus courts to review issues already decided by an appellate court and it is not the function of [the
appellate court] to review, on denial of the writ of habeas corpus, issues previously decided on appeal”);
see also Turpin v. Christenson, 497 S.E.2d 216, 219-20 (Ga. 1998) (holding that numerous claims alleged
by habeas petitioner were res judicata because “[a]fter an appellate review the same issue[s] will not be
reviewed on habeas corpus); Hammock v. Zant, 253 S.E.2d 727, 728 (Ga. 1979) (citing White v. Hornsby,
12 S.E.2d 875, 876 (Ga. 1941)).
37
See Hammock, 253 S.E.2d at 728 n.1 (citing Bunn v. Burden, 228 S.E.2d 830 (Ga. 1976)); see also
Bruce v. Smith, 553 S.E.2d 808, 810 (Ga. 2001) (noting that “[w]ithout a change in the facts or the law, a
habeas court will not review an issue decided on direct appeal”).
38
See O.C.G.A. § 9-14-48(d) (2005); Black v. Hardin, 336 S.E.2d 754, 755 (Ga. 1985).
39
See Black, 336 S.E.2d at 755; see also O.C.G.A.§ 9-14-48(d) (2005).

184

and prejudice, s/he may still obtain relief in order to avoid a “miscarriage of justice” if
the habeas court finds that there has been a “substantial denial of constitutional rights.”40
a. Cause and Prejudice Exception
The “cause and prejudice” exception to an otherwise valid procedural default applies only
when the habeas petitioner can demonstrate that a force external to the defense impeded
his/her counsel’s efforts to raise a defaulted claim at trial or on direct appeal.41 Objective
external factors that may constitute “cause” sufficient to satisfy the test “include
interference by government officials that makes compliance with the procedural rules
impossible or a showing that a factual or legal claim was not available to counsel.”42
Additionally, the Georgia Supreme Court has found sufficient cause for the petitioner’s
failure to raise the claim of jury-bailiff misconduct on appeal, where the bailiff concealed
from the trial court a question posed by the jury during sentencing deliberations.43
A valid claim of ineffective assistance of counsel for waiving an issue at trial or on direct
appeal under Strickland v. Washington44 may also constitute “cause.”45 Attorney error
that falls short of the Strickland standard for constitutional ineffectiveness does not rise to
the level of “cause.”46 Furthermore, the “mere fact that counsel failed to recognize the
factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does
not constitute “cause” for a procedural default.”47
To show sufficient prejudice, the petitioner must demonstrate “actual prejudice that
‘worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.’”48 Certain trial errors, such as juror-bailiff misconduct, have a
presumption of prejudice if properly objected to at trial and raised on appeal, but a
petitioner is not entitled to that presumption of prejudice to meet the “cause and prejudice
test” after a claim has already been procedurally defaulted.49 A petitioner claiming
40

Black, 336 S.E.2d at 755.
Head v. Ferrell, 554 S.E.2d 155, 160 (Ga. 2001) (citing Turpin v. Mobley, 502 S.E.2d 458, 462 (Ga.
1998)).
42
Turpin v. Christenson, 497 S.E.2d 216, 221 (Ga. 1998).
43
Turpin v. Todd, 493 S.E.2d 900, 907 (Ga. 1997).
44
466 U.S. 668 (1984).
45
See Ferrell, 554 S.E.2d at 160; Todd, 493 S.E.2d at 906.
46
Christenson, 497 S.E.2d at 221. The Strickland test requires the petitioner to allege deficient
performance by his counsel by demonstrating that his/her counsel’s performance “fell below an objective
standard of reasonableness” to such a degree that, by making such serious errors, counsel was “not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v.
Washington, 466 U.S. 668, 687-88 (1984).
47
Christenson, 497 S.E.2d at 221 (citing Murray v. Carrier, 477 U.S. 478, 486 (1986)).
48
Turpin v. Mobley, 502 S.E.2d 458, 462 (Ga. 1998) (quoting Todd, 493 S.E.2d at 907); Christianson,
497 S.E.2d at 221(quoting Todd, 493 S.E.2d at 907); see also Head v. Hill, 587 S.E.2d 613, 623-24 (Ga.
2003).
49
See Todd, 493 S.E.2d at 907-08 (holding that if the law presumes prejudice where juror-bailiff
misconduct existed when such error is timely raised, a petitioner who is attempting to overcome a
procedural bar does not have the benefit of that presumption of prejudice).
41

185

ineffective assistance of counsel in waiving a claim at trial or omitting a claim on appeal
who has shown sufficient prejudice under Strickland 50 has also shown sufficient
prejudice under the “cause and prejudice” test applied to procedurally defaulted claims.51
b. Miscarriage of Justice Exception
The “cause and prejudice” test is not applied to procedurally defaulted claims in habeas
corpus proceedings are when granting habeas corpus relief is necessary to avoid a
“miscarriage of justice”52 or when the claims regard sentencing phase jury instructions in
death penalty trials.53
A miscarriage of justice “is by no means to be deemed synonymous with procedural
irregularity, or even with reversible error.”54 “[I]t demands a much greater substance,
approaching perhaps the imprisonment of one who, not only is not guilty of the specific
offense for which he is convicted, but, further, is not even culpable in the circumstances
under inquiry.”55
Habeas corpus courts are authorized under the “miscarriage of justice” exception to
consider for the first time claims of mental retardation because of Georgia’s
constitutional prohibition against executing mentally retarded persons.56 A petitioner
who brings a proper mental retardation claim under this exception in order to avoid a
death sentence must prove his/her mental retardation beyond a reasonable doubt.57
c. Sentencing Phase Jury Instruction in a Death Penalty Case Exception
Because the sentencing charge in a death case is so crucial to the outcome of the trial, the
Supreme Court of Georgia has reserved the power to review those charges in habeas
proceedings, whether an objection was made in the trial court or not.58 Thus, “[c]laims
regarding sentencing phase jury [instructions] in a death penalty case are never barred by
procedural default.” 59

50

To meet the Strickland test for prejudice, a petitioner “must show that there is a reasonably probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 699.
51
See Head v. Ferrell, 554 S.E.2d 155,160 (Ga. 2001) (quoting Todd, 493 S.E.2d at 907-08).
52
Id.
53
See infra notes 58-59 and accompanying text.
54
Turpin v. Hill, 498 S.E.2d 52, 53 (Ga. 1998) (quoting Gavin v. Vasquez, 407 S.E.2d 756, 757 (Ga.
1991)).
55
Valenzuela v. Newsome, 325 S.E.2d 370, 374 (Ga. 1985) (noting that the “miscarriage of justice”
exception would apply in the case of mistaken identity); Vasquez, 407 S.E.2d at 757.
56
See Hill, 498 S.E.2d at 53 n.2 (noting such claims shall be considered only within the context of the
sentencing phase).
57
Head v. Hill, 587 S.E.2d 613, 621 (Ga. 2003).
58
See Stephens v. Hopper, 247 S.E.2d 92, 96 (Ga. 1978).
59
Head v. Ferrell, 554 S.E.2d 155, 160 (Ga. 2001).

186

d. Ineffective Assistance of Counsel Exception
Claims of ineffective assistance of counsel must be raised at the first possible postconviction opportunity.60 A habeas corpus petitioner’s claim of ineffective assistance of
trial counsel is not subject to procedural default when it is raised for the first time in a
habeas proceeding where the petitioner was represented by the same trial counsel
throughout the direct appeal proceedings.61 Similarly, claims of ineffective assistance of
appellate counsel, which cannot be raised on direct appeal, are not defaulted in
subsequent habeas corpus proceedings.62 Where, however, the defendant receives new
counsel for his/her motion for new trial, amended motion for new trial, or his/her direct
appeal and fails to raise the claim of ineffective assistance of trial counsel in those
proceedings, such claims are procedurally defaulted for purposes of habeas review.63
3. Successive Petitions
a. Claims Already Raised in the Initial Petition
Petitioners may not relitigate claims on a second petition which have already been
decided against them in an initial petition.64
b. New Claims Not Raised in the Initial Petition
Petitioners are not entitled to relief on claims that could have been raised in their first
petition.65 Specifically, any grounds of relief not raised by the petitioner in his/her

60

Turpin v. Christenson, 497 S.E.2d 216, 222 (Ga. 1998).
See Turpin v. Mobley, 502 S.E.2d 458, 462 (Ga. 1998); Turpin v. Todd, 493 S.E.2d 900, 910 (Ga.
1997) (noting that an attorney can not raise a claim of ineffectiveness against himself).
62
Miliken v. Steward, 583 S.E.2d 30, 31 (Ga. 2003).
63
Cf. Thompson v. State, 359 S.E.2d 664, 665 (Ga. 1987) (holding that where trial counsel files motion
for new trial but new counsel files amended motion without raising claim of ineffectiveness of trial counsel,
that claim will be waived if raised for the first time on appeal).
64
Smith v. Zant, 301 S.E.2d 32, 34-35 (Ga. 1983) (holding that because the petitioner raised in a
previous habeas petition, and the courts rejected, the claim that the Georgia death penalty statute was being
“applied arbitrarily and discriminatorily,” it is not cognizable in a successive habeas petition); Samuels v.
Hopper, 215 S.E.2d 250, 251 (Ga. 1975) (holding that questions raised and decided against the petitioner in
a previous habeas proceeding will not be decided again in a subsequent habeas proceeding); Williams v.
Lawrence, 18 S.E.2d 463, 463 (Ga. 1942) (holding that the petitioner is precluded from maintaining
another petition for habeas corpus on a same ground raised and rejected in a previous petition); see also
Stevens v. Kemp, 327 S.E.2d 185, 187 (Ga. 1985) (holding that the argument that the petitioner was denied
a full and fair hearing on a particular claim in the initial habeas proceeding, does not allow him to relitigate
that initial claim in a successive petition, where he could have raised this complaint in his application for
certificate of probable cause to appeal the denial of his first petition).
65
See, e.g., Tucker v. Kemp, 351 S.E.2d 196, 198-99 (Ga. 1987) (rejecting contention that United States
Supreme Court opinion decided after first habeas petition was tantamount to a change in the law to allow a
new claim based on that case which was not raised in the first petition; additionally holding that petitioner
could have raised this claim in his first petition); Smith, 301 S.E.2d at 33-34 (upholding refusal to hear
61

187

original or amended petition are considered waived unless (1) otherwise allowed by the
United States Constitution or the Georgia Constitution or (2) the judge presiding over a
subsequent petition finds that the grounds asserted “could not reasonably have been
raised in the original or amended petition.”66
If the petitioner cannot demonstrate that his/her new claims are constitutionally nonwaivable,67 s/he must show that these claims “could not reasonably have been raised in
the earlier petition.”68 For example, where the petitioner’s first habeas attorney would
not raise several constitutional issues in the first habeas corpus petition, despite the
petitioner’s request to do so and assurances to the contrary, the petitioner was allowed to
proceed on the merits of those claims in his second petition.69
Additionally, a second habeas petition may be heard where the claims therein are based
on a change in the law subsequent to the petitioner’s first petition because the habeas
petitioner could not reasonably have raised such claims in his/her first petition.70
Furthermore, because a petitioner could not reasonably have raised claims in his/her first
habeas petition that were raised and decided against him/her on direct appeal, changes in
the law subsequent to a petitioner’s first petition will relieve the petitioner from that
procedural bar and allow these claims to be raised in a second habeas petition.71
4. Substantive Claims Not Cognizable in a Habeas Proceeding
A number of substantive claims are not cognizable in a habeas corpus proceeding.72 A
petitioner may not challenge the sufficiency of the evidence used to convict him/her at

claim challenging gender makeup of jury panel, where claim was not raised either before trial or in first
habeas petition, and petitioner made no claim in either petition that his trial or habeas counsel was
ineffective); Dix v. Zant, 294 S.E.2d 527, 528 (Ga. 1982) (holding that second petition with claims of
ineffective assistance of trial counsel was barred because the claims therein could have been raised in the
first petition and the petitioner had the same counsel on both the first and second petitions); Jarrell v. Zant,
284 S.E.2d 17, 17 (Ga. 1981) (noting that many of the errors raised in the second habeas petition were
barred because the could have been raised in his first habeas petition).
66
O.C.G.A. § 9-14-51 (2005).
67
An exhaustive review of Georgia case law did not reveal any cases providing examples of
“constitutionally non-waivable” claims.
68
Smith, 301 S.E.2d at 34; see also Fuller v. Ricketts, 214 S.E.2d 541, 542 (Ga. 1975).
69
See Smith v. Garner, 222 S.E.2d 351, 354 (Ga. 1976).
70
See Bruce v. Smith, 553 S.E.2d 808, 810-11 (Ga. 2001); see also Jarrell, 284 S.E.2d at 17 n.1 (noting
that because the cases relied upon by the petitioner as the basis for his new claims in his successive petition
were decided after the hearing for his first habeas petition, the new claims are not barred because he could
not have reasonably raised these claims in his first petition).
71
See Bruce, 553 S.E.2d at 810; see also Stevens v. Kemp, 327 S.E.2d 185, 187 (holding that “the rule of
res judicata in habeas corpus proceedings is rendered inapplicable where the grounds for relief are based on
a change in the law occurring subsequent to the prior habeas proceeding”).
72
See, e.g., Johnson v. Griffin, 540 S.E.2d 189, 190 (Ga. 2001) (holding that challenges to a
determination of a parole board that a petitioner is no longer eligible for parole do not involve a petitioner’s
sentence or incarceration and, thus, are not cognizable in a habeas corpus proceeding).

188

trial,73 as these claims must be raised on direct appeal.74 Claims of newly discovered
evidence are not appropriate in a habeas proceeding,75 as these claims must be raised in
an extraordinary motion for new trial.76
C. Review of Error
For errors involving a petitioner’s constitutional rights, the petitioner is entitled to a new
trial unless the habeas court finds that “the error is harmless beyond a reasonable
doubt.”77 The determination of whether an error is harmless must be made “on a case by
case basis, taking into consideration the facts, the trial context of the error, and the
prejudice created thereby as juxtaposed against the strength of the evidence of thre
defendant’s guilt.”78 In petitions where the asserted error is proper for review in a habeas
corpus proceeding, non-constitutional error will be harmless if it is “highly probable that
the error did not contribute to the judgment.”79
D. Retroactivity of Rules
A new rule of criminal procedure “applies only to those cases on direct review or not yet
final, and would not apply to cases on collateral review,” such as a habeas corpus
petition.80 However, “watershed rules concerning procedures that are implicit in the
concept of ordered liberty and that implicate the fundamental fairness and accuracy of the
criminal proceeding” are applied retroactively on collateral review.81 Furthermore, “a
new rule of substantive criminal law must be applied retroactively to cases on collateral
review.”82 For example, appellate decisions that interpret an element of a criminal
offense in a manner that renders certain conduct outside of the prohibitive scope of the
statute are rulings of substantive law and, thus, may be retroactively applied to those who
were previously convicted of that same conduct under the statute.83

73

Stephens v. Balkcom, 265 S.E.2d 596, 597 (Ga. 1980).
Id.
75
Bush v. Chappell, 171 S.E.2d 128, 130 (Ga. 1969) (citing Evans v. Perkins, 165 S.E.2d 652 (Ga.
1969)).
76
Id.
77
See Brewer v. Hall, 603 S.E.2d 244, 247 (Ga. 2004).
78
Id. (quoting Hill v. State, 295 S.E.2d 518 (1982)).
79
See Johnson v. State, 230 S.E.2d 869, 870 (Ga. 1976).
80
Luke v. Battle, 565 S.E.2d 816, 817 (Ga. 2002); see also Harris v. State, 543 S.E.2d 716, 717-18 (Ga.
2001) (holding that error in charging jury in malice murder trial that it could infer intent to kill from use of
deadly weapon was only retroactive to cases on direct appeal or not yet final).
81
Head v. Hill, 587 S.E.2d 613, 619 (Ga. 2003).
82
Luke, 565 S.E.2d at 819.
83
Id. at 819-20 (discussing how the term “force” in the aggravated sodomy statute no longer allows for
the conviction of those who commit acts of sodomy against an underage victim, without more, thus, placing
non-forceful acts of sodomy outside the reach of the statute); see also Scott v. Hernandez-Cuevas, 396
S.E.2d 900, 900 (Ga. 1990) (holding a prior court decision that evidence of constructive possession is
insufficient to convict defendant of trafficking in cocaine was retroactive).
74

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II. ANALYSIS
A. Recommendation #1
All post-conviction proceedings at the trial court level should be conducted in a
manner designed to permit adequate development and judicial consideration of all
claims. Trial courts should not expedite post-conviction proceedings unfairly; if
necessary, courts should stay executions to permit full and deliberate consideration
of claims. Courts should exercise independent judgment in deciding cases, making
findings of fact and conclusions of law only after fully and carefully considering the
evidence and the applicable law.

The Georgia Uniform Superior Court Rules contain certain rules that seem to permit the
adequate development and judicial consideration of claims.84 Specifically, because the
capital petitioner has no deadline for filing his/her habeas corpus petition and has an
additional 120 days after filing to amend his/her petition,85 it appears that the petitioner
receives adequate time to formulate and properly raise all known claims. Furthermore, a
judge who is not within the circuit in which the conviction and sentence were imposed
must be assigned to the case,86 which aims to alleviate any potential bias in the habeas
proceedings stemming from the habeas judge presiding over a challenge to a conviction
and/or sentence over which s/he originally presided.
Once a judge has been assigned, s/he may schedule a preliminary conference with the
state and defense counsel and enter a scheduling order.87 This conference is intended to
facilitate the efficient administration of the proceeding and provides the framework for
the development of the asserted claims through discovery and motions. Furthermore, if
the petition is not summarily dismissed as procedurally barred, the court must hold an
evidentiary hearing within 180 days of the filing of the petition.88
However, certain aspects of Georgia law may preclude the adequate development and
judicial consideration of all claims. For example, Georgia law (1) does not require an
automatic stay of execution upon filing of a habeas corpus petition, (2) allows the habeas
judge, after requesting that either party file proposed findings of fact and conclusions of
law, to copy verbatim a party’s proposed findings and conclusions in the final order of
the court, and (3) allows the habeas judge to shorten any of the time periods for various
actions in a habeas corpus proceeding.

84

GA. UNIF. SUPER . C T. R. 44.1-.12.
GA. UNIF. SUPER . CT. R. 44.7; O.C.G.A. § 9-14-42(c) (2005) (“Any action brought pursuant to this
article shall be filed . . . within four years in the case of a felony, other than once challenging a conviction
for which a death sentence has been imposed or challenging a sentence of death.”).
86
O.C.G.A. § 9-14-47.1(b) (2005); GA. UNIF. S UPER. CT. R. 44.4(A).
87
GA. UNIF. SUPER . C T. R. 44.5.
88
O.C.G.A. § 9-14-47.1(c)(4) (2005); G A. UNIF. S UPER. CT. R. 44.9.
85

190

The grant or denial of a stay of execution is within the sound discretion of the habeas
court, taking into consideration the circumstances of each case.89 A stay of execution is
not required to be granted even where a matter critical to the defendant’s claims is
pending in another case before the court.90 It appears, however, that Georgia habeas
courts generally grant a stay of execution upon the filing of a habeas petition and a
contemporaneous motion for stay of execution (which is then usually dissolved upon an
affirmance of the denial of the habeas petition).91 In sum, although the habeas courts
generally grant stays of execution, habeas courts are not required to do so.
Furthermore, the Georgia Supreme Court has allowed the habeas court’s verbatim
adoption of the state’s proposed findings of fact and conclusions of law in its final
order.92 Specifically, the Georgia Supreme Court noted that although such practice is not
preferable, “even when the [habeas] judge adopts the proposed findings verbatim, the
findings are those of the court and may be reversed only if clearly erroneous.”93 While
habeas judges rightly have the discretion94 to request proposed findings of fact and
conclusions of law from either party, the wholesale adoption or copying of the state’s
findings of fact and conclusions of law in the habeas court’s order undermines a habeas
judge’s necessary duty to exercise independent judgment in deciding cases and to
carefully consider the evidence and applicable law before rendering findings of fact and
conclusions of law in the written order. The problem with copying the state’s proposed
findings and conclusions is even more acute in a habeas proceeding where the inmate is
not entitled to appointed counsel.95
Additionally, the assigned judge has the discretion to shorten the time periods for various
actions in a habeas corpus proceeding,96 which allows the habeas court to curtail the time
for filing motions, pursuing discovery, and filing briefs. This potentially inhibits the full
development of a record upon which the habeas court may make its decision on the
merits of the petitioner’s claims.
Although the State of Georgia provides a framework for the development and
administration of a petitioner’s claims and mandates an evidentiary hearing on those
claims, habeas courts retain the discretion to determine scope of development and judicial
consideration given to any claim. We were unable to ascertain with certainty whether
Georgia habeas courts exercise this discretion to (1) expedite post-conviction proceedings

89

Zant v. Dick, 294 S.E.2d 508, 509 (Ga. 1982).
See Williams v. Head, 533 S.E.2d 714, 714 (Ga. 2000) (granting a stay of execution where the issue of
whether electrocution is a constitutional form of punishment is pending in another case before the Georgia
Supreme Court).
91
See, e.g., Corn v. Hopper, 257 S.E.2d 533, 535 (Ga. 1979) (affirming the trial court’s denial of the
habeas petition and dissolving the previously granted stay of execution).
92
See Jefferson v. Zant, 431 S.E.2d 110, 111-12 (Ga. 1993).
93
Id. at 112 (citing Anderson v. Bessemer City, 470 U.S. 564, 572 (1985)).
94
See GA. U NIF. SUPER . CT. R. 44.11.
95
See infra notes 112-117 and accompanying text.
96
GA. UNIF. SUPER . C T. R. 44.5.
90

191

unfairly, (2) if necessary, stay executions to permit full and deliberate consideration of
claims, and (3) use independent judgment in deciding cases when making findings of fact
and conclusions of law, even though habeas courts may make verbatim adoptions of a
party’s proposed findings and conclusions.
Thus, we are unable to conclude whether the State of Georgia complies with the
requirements of Recommendation #1.
B. Recommendation #2
The State should provide meaningful discovery in post-conviction proceedings.
Where courts have discretion to permit such discovery, the discretion should be
exercised to ensure full discovery.

Recommendation #3
Judges should provide sufficient time for discovery and should not curtail discovery
as a means of expediting the proceedings.

Georgia law provides that the court “may receive proof by depositions, oral testimony,
sworn affidavits, or other evidence,” but that “[n]o other forms of discovery shall be
allowed except upon leave of court and a showing of exceptional circumstances.”97 If the
habeas court allows any discovery by the parties, it must be completed within 120 days of
the filing of the habeas petition,98 or within a shorter or longer time period as designated
by the habeas judge.99 A habeas court’s decision on discovery matters will not be
reversed by a reviewing court in the absence of a clear abuse of discretion.100
These rules leave to the discretion of the habeas judge the decision to allow discovery
and to determine the scope of and time limit for such discovery if it is allowed. Thus, a
habeas judge can not only exercise his/her discretion to prevent “full discovery” of all
evidence necessary for the petitioner to argue his/her claims, s/he can prevent any and all
discovery. Only if the habeas court first exercises its discretion to allow the petitioner to
receive the benefit of discovery is the petitioner provided with the time for discovery, 120
days. This time period, however, can be shortened by the habeas judge.
Given that these provisions grant the trial court considerable discretion in determining the
scope and length of discovery, we were unable to ascertain with any certainty whether all
Georgia habeas courts exercise this discretion to both provide sufficient time for
discovery and scope of discovery in a manner that ensures full discovery.

97

O.C.G.A. § 9-14-48(a) (2005) (emphasis added).
GA. UNIF. SUPER . C T. R. 44.7.
99
GA. UNIF. SUPER . C T. R. 44.5.
100
Turpin v. Bennett, 513 S.E.2d 478, 483 (Ga. 1999) (holding that the habeas court did not abuse its
discretion in refusing to permit discovery of a doctor’s medical records).
98

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Thus, we are unable to conclude whether the State of Georgia complies with the
requirements of Recommendations #2 and 3.
C. Recommendation #4
When deciding post-conviction claims on appeal, state appellate courts should
address explicitly the issues of fact and law raised by the claims and should issue
opinions that fully explain the bases for dispositions of claims.

The Georgia Supreme Court maintains exclusive jurisdiction over appeals from
judgments in habeas corpus proceedings.101 There is no appeal of right of a denial of a
habeas corpus petition, and a petitioner must first file a certificate of probable cause to
appeal with the Georgia Supreme Court.102 Thus, in order for the Georgia Supreme Court
to fully address the issues of fact and law raised by the petitioner on appeal and to issue
an opinion that fully explains the bases for disposition of those claims, the petitioner must
first file a certificate of probable cause to appeal and it must be accepted by the Georgia
Supreme Court.
Even if the certificate of probable cause to appeal is accepted, the Georgia Supreme
Court is not required to issue a written opinion. 103 The Georgia Supreme Court may issue
an affirmance without opinion in any civil case when it “determines one or more of the
following circumstances exist and is dispositive of the appeal”:
(1)
(2)
(3)

The evidence supports the judgment;
No harmful error of law, properly raised and requiring reversal appears; or
The judgment of the court below adequately explains the decision and an
opinion would have no precedential value.104

Because “a habeas corpus proceeding is a collateral, civil action,” 105 the Georgia
Supreme Court may issue affirmances that do not apprise the parties of the basis for the
disposition where the evidence supports the judgment, no harmful error exists, or the
judgment of the court below adequately explains the decision. In fact, the Georgia
Supreme Court has issued such affirmances without opinion in habeas corpus appeals,
albeit in non-death cases. 106
Thus, the State of Georgia fails to meet the requirements of Recommendation #4 because
the Georgia Supreme Court is not required in habeas cases where a death sentence has

101

GA. C ONST. art. VI, § 6, para. 3.
O.C.G.A. § 9-14-52(b) (2005).
103
See GA. S UP. CT. R. 59.
104
Id.
105
Fortson v. State, 532 S.E.2d 102, 104 (Ga. 2000).
106
See, e.g., State v. Colack, 541 S.E.2d 374 (Ga. 2001); Dennis v. State, 312 S.E.2d 118 (Ga. 1984);
Ramsey v. Dodd, 277 S.E.2d 913 (Ga. 1981).
102

193

been imposed to issue opinions that fully explain the bases for the disposition of the
asserted claims.
D. Recommendation #5
On the initial state post-conviction application, state post-conviction courts should
apply a “knowing, understanding and voluntary” standard for waivers of claims of
constitutional error not preserved properly at trial or on appeal.

Recommendation #6
When deciding post-conviction claims on appeal, state appellate courts should apply
a “knowing, understanding and voluntary" standard for waivers of claims of
constitutional error not raised properly at trial or on appeal and should liberally
apply a plain error rule with respect to errors of state law in capital cases.

The Georgia Supreme Court uses the “cause and prejudice” standard for waiver of
claims. The “cause and prejudice” standard for overcoming procedural default applies to
both constitutional and state law errors,107 and will overcome an otherwise valid
procedural default only when the habeas petitioner can demonstrate that (1) “some factor
external to the defense impeded [his/her] counsel’s efforts to raise the claim at trial or on
direct appeal,”108 and (2) “actual prejudice that ‘worked to his[/her] actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.’”109
Applying the “cause and prejudice” standard for overcoming an otherwise valid
procedural default allows for the waiver of potentially viable claims of constitutional or
state law error without the defendant’s “knowing, understanding, and voluntary” waiver
of those claims. For example, under the “knowing, understanding, and voluntary”
standard, where counsel, without the defendant’s knowledge or voluntary consent, fails to
object to an error at trial or to raise the claim on appeal, the claim would not be defaulted
for the purposes of habeas review. However under the “cause and prejudice” standard
used in Georgia, attorney error that falls short of the Strickland standard for constitutional
ineffectiveness does not rise to the level of “cause.”110

107

Head v. Ferrell, 554 S.E.2d 155, 160 (Ga. 2001); Valenzuela v. Newsome, 325 S.E.2d 370, 373 (Ga.
1985).
108
Ferrell, 554 S.E.2d at 160.
109
Turpin v. Mobley, 502 S.E.2d 458, 462 (Ga. 1998) (quoting Turpin v. Todd, 493 S.E.2d 900, 907 (Ga.
1997)); Turpin v. Christianson, 497 S.E.2d 216, 221 (Ga. 1998) (quoting Todd, 493 S.E.2d at 907); see also
Head v. Hill, 587 S.E.2d 613, 623-24 (Ga. 2003).
110
Christenson, 497 S.E.2d at 221. The Strickland test requires the petitioner to allege deficient
performance by his counsel by demonstrating that his/her counsel’s performance “fell below an objective
standard of reasonableness” to such a degree that, by making such serious errors, counsel was “not
functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington,
466 U.S. 668, 687-88 (1984).

194

Furthermore, Georgia does not apply “plain error” review in habeas proceedings. Rather,
“plain error” review is only applied by the appellate courts on direct appeal.111
Because the State of Georgia does not apply the “knowing, understanding, and voluntary”
standard for constitutional error not properly preserved at trial or raised on appeal or plain
error review for errors of state law in a habeas corpus proceeding, it fails to meet the
requirements of Recommendations #5 and #6.
E. Recommendation #7
The state should establish post-conviction defense organizations, similar in nature to
the capital resources centers de-funded by Congress in 1996, to represent capital
defendants in state post-conviction, federal habeas corpus, and clemency
proceedings.

Recommendation #8
For state post-conviction proceedings, the state should appoint counsel whose
qualifications are consistent with American Bar Association Guidelines on the
Appointment and Performance of Defense Counsel in Death Penalty Cases. The
state should compensate appointed counsel adequately and, as necessary, provide
sufficient funds for investigators and experts.

The State of Georgia has not established post-conviction defense organizations to
represent capital defendants in state post-conviction, federal habeas corpus, and clemency
proceedings. In fact, the Georgia Supreme Court has found that death-sentenced inmates
do not have a right to appointed counsel or funds for investigators or experts after direct
review by the Georgia Supreme Court.112 Indigent death-sentenced inmates are,
therefore, left to represent themselves or obtain pro bono attorneys, who are not required
by the State of Georgia to possess any specific qualifications to handle state postconviction cases. Based on this information, the State of Georgia is not in compliance
with Recommendations #7 and 8.
We note that there are a number of individuals and organizations that provide pro bono
representation to death-sentenced inmates during state post-conviction proceedings. For
example, the Georgia Appellate Practice and Educational Resource Center (Resource
Center), which receives limited state funding,113 represents inmates petitioning for state
habeas and provides resource assistance in state habeas cases.114 However, the Resource
Center’s staff is composed of only four attorneys, who at any given time serve as co111

Paul v. State, 537 S.E.2d 58, 61 (Ga. 2000) (quoting Almond v. State, 349 S.E.2d 482, 486 (Ga. Ct.
App. 1986)).
112
See O.C.G.A. §§ 17-12-121, -127(c) (2005); Gibson v. Turpin, 513 S.E.2d 186, 188 (Ga. 1999); State
v. Davis, 269 S.E.2d 461, 462-63 (Ga. 1980).
113
The Resource Center receives approximately $800,000 per year. See Interview with a Staff Member
from the Resource Center (May 2005) (on file with author).
114
Id.

195

counsel or provide substantial assistance in approximately sixty pending state habeas
cases.115 Due to the limited resources of these organizations, it impossible for them to
provide representation for all indigent death-sentenced inmates, leaving some without
representation.116
F. Recommendation #9
State courts should give full retroactive effect to U.S. Supreme Court decisions in
all proceedings, including second and successive post-conviction proceedings, and
should consider in such proceedings the decisions of federal appeals and district
courts.

Habeas courts in Georgia give full retroactive effect to changes in the law announced by
the U.S. Supreme Court in limited circumstances. Specifically, habeas courts will only
give retroactive effect to new rules of substantive criminal law and new rules of
procedural law that are necessary to ensure the fundamental fairness and accuracy of a
criminal trial.117 All other new rules of procedural law, including those announced by the
U.S. Supreme Court, will be applied retroactively only to cases still within the direct
appeal pipeline.118
Because Georgia law only gives retroactive effect to changes in the law announced by the
U.S. Supreme Court in limited circumstances, the State of Georgia only partially meets
the requirements of Recommendation #9.
G. Recommendation #10
State courts should permit second and successive post-conviction proceedings in
capital cases where counsels’ omissions or intervening court decisions resulted in
possibly meritorious claims not previously being raised, factually or legally
developed, or accepted as legally valid.

Georgia law does permit successive habeas corpus petitions in the limited instances
where some deficiency by counsel119 or an intervening court decision that changed the
law subsequent to the first petition resulted in a meritorious claim not being raised and
litigated in the first petition. 120

115

Id.
See Bill Rankin, Prisoners on Death Row Face Appeals Alone, A TLANTA J. CONST., Jan. 18, 2005
(stating as of January 18, 2005, “[s]even of Georgia’s death row inmates in their final rounds of appeals
have no lawyer to represent them, the highest number in more than a decade”).
117
Head v. Hill, 587 S.E.2d 613, 619 (Ga. 2003); Luke v. Battle, 565 S.E.2d 816, 819-20 (Ga. 2002).
118
Luke, 565 S.E.2d at 817-20.
119
See Smith v. Garner, 222 S.E.2d 351, 354 (Ga. 1976).
120
See Bruce v. Smith, 553 S.E.2d 808, 810-11 (Ga. 2001); see also Jarrell v. Zant, 284 S.E.2d 17, 17 n.1
(Ga. 1981).
116

196

It would appear, however, that in cases where a change in the law subsequent to a first
habeas petition extinguishes the bar against filing a claim pursuant to that change in the
law in a second habeas petition, the retroactivity rules discussed in Recommendation #9
must be followed in considering the revived claim. Thus, even if a change in the law
allows a petitioner to overcome the statutory bar against successive habeas petitions, the
new law must be a rule of substantive criminal law or a new rule of procedural law that is
necessary to ensure the fundamental fairness and accuracy of a criminal trial in order to
be applied to the petitioner’s case on collateral review.121
Although Georgia law allows for second habeas petitions where counsels’ omissions or
intervening court decisions resulted in possibly meritorious claims not previously being
raised, claims raised in a second petition pursuant to intervening court decisions still may
be barred due to the application of stringent retroactivity rules. The State of Georgia,
therefore, only partially meets the requirements of Recommendation #10.
H. Recommendation #11
In post-conviction proceedings, state courts should apply the harmless error
standard of Chapman v. California, 386 U. S. 18 (1967), which requires the
prosecution to show that a constitutional error is harmless beyond a reasonable
doubt.

In Chapman v. California, the United States Supreme Court stated that “before a federal
constitutional error can be held harmless, the court must be able to declare a belief that it
was harmless beyond a reasonable doubt.”122 The burden to show that the error was
harmless falls on the “beneficiary of the error either to prove that there was no injury or
to suffer a reversal of his erroneously obtained judgment.”123 Georgia courts follow this
pronouncement in Chapman by requiring the same burden of proof for errors involving a
petitioner’s constitutional rights—the petitioner is entitled to a new trial unless the habeas
court finds that the error is harmless beyond a reasonable doubt.124 The State of Georgia,
therefore, meets Recommendation #11.
I. Recommendation #12
During the course of a moratorium, a “blue ribbon” commission should undertake a
review of all cases in which individuals have been either wrongfully convicted or
wrongfully sentenced to death and should recommend ways to prevent such
wrongful results in the future.

121

See, e.g., Bruce, 553 S.E.2d at 809 (allowing a claim in a successive petition based on intervening case
law, which reinterpreted an element of the defendant’s affirmative defense, without discussing the
application of the principles of retroactivity).
122
386 U.S. 18, 24 (1967).
123
Id.
124
See Brewer v. Hall, 603 S.E.2d 244, 247 (Ga. 2004); Rowe v. State, 582 S.E.2d 119, 124 (Ga. 2003).

197

Because Recommendation #12 is predicated on the implementation of a moratorium, it is
not applicable to the State of Georgia at this time.

198

CHAPTER NINE
CLEMENCY
INTRODUCTION TO THE ISSUE
Under a state’s constitution or clemency statute, the governor or entity established to
handle clemency matters is empowered to pardon an individual’s criminal offense or
commute an individual’s death sentence. In death penalty cases, the clemency process
traditionally was intended to function as a final safeguard to evaluate (1) the fairness and
judiciousness of the penalty in the context of the circumstances of the crime and the
individual; and (2) whether a person should be put to death. This process can only fulfill
this critical function when the exercise of the clemency power is governed by
fundamental principles of justice, fairness, and mercy, and not by political considerations.
The clemency process should provide a safeguard for claims that have not been
considered on the merits, including claims of innocence and claims of constitutional
deficiencies. Clemency also can be a way to review important sentencing issues that
were barred in state and federal courts. Because clemency is the final avenue of review
available to a death-row inmate, the state’s use of its clemency power is an important
measure of the fairness of the state’s justice system as a whole.
While elements of the clemency process, including criteria for filing and considering
petitions and inmates’ access to counsel, vary significantly among states, some minimal
procedural safeguards are constitutionally required. “Judicial intervention might, for
example, be warranted in the face of a scheme whereby a state official flipped a coin to
determine whether to grant clemency, or in a case where the State arbitrarily denied a
prisoner any access to its clemency process.”1
Since 1972, when the U.S. Supreme Court temporarily barred the death penalty as
unconstitutional, clemency has been granted in substantially fewer death penalty cases.
From 1976, when the Court authorized states to reinstate capital punishment, through
November 2005, clemency has been granted on humanitarian grounds 229 times in 19 of
the 38 death penalty states and the federal government.2 One hundred sixty seven of
these were granted by former Illinois Governor George Ryan in 2003 out of concern that
the justice system in Illinois could not ensure that an innocent person would not be
executed.
Due to restrictions on the judicial review of meritorious claims, the need for a meaningful
clemency power is more important than ever. As a result of these restrictions, clemency
can be the State’s only opportunity to prevent miscarriages of justice, even in cases

1

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 289 (1998) (O’Connor, J., concurring).
See
Death
Penalty
Information
Center,
Clemency,
http://www.deathpenaltyinfo.org/article.php?did=126&scid=13 (last visited on November 9, 2005).
2

199

at

involving actual innocence. A clemency decision maker may be the only person or body
that has the opportunity to evaluate all of the factors bearing on the appropriateness of the
death sentence without regard to constraints that may limit a court’s or jury’s decision
making. Yet as the capital punishment process currently functions, meaningful review
frequently is not obtained and clemency too often has not proven to be the critical final
check against injustice in the criminal justice system.

200

I. FACTUAL DISCUSSION
A. Clemency Decision Makers-Georgia’s Board of Pardons and Paroles
1. Authority of the State Board of Pardons and Paroles
Georgia’s Board of Pardons and Paroles (the Board), created by Constitutional
Amendment in 1943,3 possesses the authority to grant executive clemency, including
reprieves, pardons,4 and commutations of sentences.5 The Governor of Georgia has the
authority to determine the composition of the Board 6 and the salary of its members, 7 and
his/her Attorney General serves as the legal advisor to the Board.8 Although the
Governor controls the composition of and legal advice to the Board, s/he has no direct
authority to grant or deny pardons or to commute death sentences.9 Rather, the Board
members possess the sole authority to grant or deny pardons or commutations10 and no
branch of the government may “usurp or substitute its functions for the functions” of the
Board.11
2. Appointment to the Board and Position Restrictions
The Board is composed of five Governor-appointed members,12 including the Chair of
the Board, who is selected each year by the other members of the Board.13 All
individuals who are qualified to hold public office may be eligible for service on the
Board.14 Those selected to serve on the Board will be appointed for renewable sevenyear full-time terms that are subject to Senate confirmation.15 The Governor may make
additional appointments to the Board as vacancies arise. 16

3

GA. CONST. art. IV, § 2, para. 2; see Board of Pardons and Paroles, History of Parole in Georgia, at
http://www.pap.state.ga.us/history_of_parole.htm (last visited on Aug. 18, 2005).
4
Rule 475-3-.10(3) of the Rules of State Board of Pardons and Paroles defines “pardon” as “a
declaration that a person is relieved from the legal consequences of a particular conviction. It restores civil
and political rights and removes all legal disabilities resulting from the conviction.” See GA. COMP . R. &
REGS. 475-3-.10(3) (2004).
5
GA. C ONST. art. IV, § 2, para. 2(a).
6
O.C.G.A. § 42-9-2 (2004). The Governor’s authority to select members is only subject to Senate
approval. Id.
7
O.C.G.A. § 42-9-5 (2004).
8
O.C.G.A. § 42-9-10 (2004).
9
O.C.G.A. § 42-9-56 (2004).
10
GA. C ONST. art. IV, § 2, para. 2(a).
11
O.C.G.A. § 42-9-1 (2004).
12
O.C.G.A. § 42-9-2 (2004).
13
O.C.G.A. § 42-9-6(a) (2004).
14
McLendon v. Everett, 55 S.E.2d 119, 121 (Ga. 1949).
15
GA. C ONST. art. IV, § 2, para. 1; O.C.G.A. §§ 42-9-2, -4 (2004); G A. C OMP. R. & R EGS. 475-1-.01
(2004). The current Board consists of the following members: Board Chairman Milton E. Nix, Jr., former
Director of the Georgia Bureau of Investigation; Garfield Hammonds, former DEA Special Agent in charge
of Southeast Region; Garland R. Hunt, lawyer, consulting company owner, pastor and counselor; L. Gale
Buckner, former Executive Director of the Criminal Justice Coordinating Council in the Office of the

201

Once appointed, Board members are required to “devote their full time and energies” to
their position.17 They are prohibited from engaging in any business or profession, or
holding any public office that conflicts with their official duties on the Board.18 Board
members specifically are barred from serving as a representative of any political party,
executive committee, or other governing body, or as an executive officer or employee of
any political committee, organization, or association.19 Board members who wish to run
for public office or solicit votes on behalf of a candidate for public office must resign
from their positions before doing so.20
3. Duties of the Board
It is the duty of the Board “to study the cases of those inmates whom the Board has
power to consider so as to determine their ultimate fitness for such relief as the Board has
power to grant.”21 In order to study these cases, the Board must “obtain” as much
information as possible about the inmates.22 This information must be “obtained as soon
as possible after the imposition of the sentence” and includes the following:
1. A statement of the crime for which the inmate is sentenced, the circumstances of
the crime, and the inmate’s sentence;
2. The name of the court in which the inmate was sentenced;
3. The term of his/her sentence;
4. The name of the presiding judge, the prosecutors, the investigating officers, and
defense counsel,
5. A copy of the presentence investigation and any previous court record;
6. A fingerprint record;
7. A copy of all probation reports that may have been made; and
8. Any social, physical, mental or criminal record of the person.23
Additionally, the Board must maintain a written record of every person who contacted
any member of the Board on behalf of an inmate.24 The record must include the name

Governor; and Dr. Eugene Walker, former Commissioner of the Department of Juvenile Justice. See
Board
of
Pardons
and
Paroles,
Current
Georgia
Parole
Board
Members,
at
http://www.pap.state.ga.us/current_members.htm (last visited on Aug. 18, 2005).
16
GA. C ONST. art. IV, § 2, para. 1; see Partain v. Maddox, 182 S.E.2d 450, 456 (Ga. 1971).
17
O.C.G.A. § 42-9-5 (2004).
18
O.C.G.A. § 42-9-15(a) (2004).
19
Id.
20
Id.
21
O.C.G.A § 42-9-20 (2004).
22
O.C.G.A § 42-9-41(a) (2004).
23
O.C.G.A § 42-9-41(a)(1)-(8) (2004).
24
O.C.G.A § 42-9-18 (2004).

202

and address of each caller and his/her reason for contacting the Board member.25 A copy
of the written record must be placed in the inmate’s file.26
The Board also must submit a written report of its activities to the Governor, Attorney
General, and each chamber of the General Assembly prior to Jan. 1 of each year.27 A
copy of the report is made a permanent record of the Board.28
B. Clemency Petitions
To initiate the clemency process, an inmate sentenced to death may apply for a pardon
and/or a commutation of his/her sentence. An inmate seeking a pardon and/or a
commutation is not entitled to appointed counsel;29 however, s/he may have a privately
obtained attorney represent him/her throughout the clemency process. “Only duly
licensed attorneys who are active members in good standing of the State Bar of Georgia .
. . [are] permitted to appear or practice in any matter before the board for a fee, money, or
other remuneration.”30
1. Pardons
To apply for a pardon, the inmate must submit a request for a pardon in any written form,
such as the “Application for Restoration of Rights/Pardons.”31 The Board may grant a
pardon in two instances: (1) the inmate has completed his/her “full sentence”32 and has
thereafter “completed five years without any criminal involvement”;33 or (2) the inmate
can prove “to the Board’s satisfaction”34 that s/he was innocent of the crime for which

25

Id.
Id.
27
O.C.G.A. § 42-9-19 (2004).
28
Id.
29
GA. C OMP. R. & R EGS. 475-3-.02(2) (2004).
30
O.C.G.A § 42-9-16(a) (2004); see also GA. C OMP. R. & R EGS. 475-3-.02(3) (2004); Board of Pardons
and Paroles, Other Forms of Clemency, at http://www.pap.state.ga.us/other_forms_clemency.htm (last
visited on Aug. 18, 2005).
31
GA. C OMP. R. & R EGS. 475-3-.10(3)(a)-(b) (2004), see also Board of Pardons and Paroles, Application
for Restoration of Rights/Pardon, at http://www.pap.state.ga.us/Pardon_Application.pdf (last visited on
Aug. 18, 2005). The application requires the inmate to disclose all convictions as well as the length of the
sentence, any probation or suspension of sentence, and/or any fine or restitution. Id.
32
“Full sentence” includes serving any probationary portion of a sentence and paying any fine. See GA.
COMP . R. & R EGS. 475-3-.10(3)(b) (2004).
33
See GA. COMP . R. & R EGS. 475-3-.10(3)(b) (2004) (indicating that the “five-year” waiting period might
be waived in certain circumstances); G A. COMP . R. & REGS . 475-3-.10(3)(a) (2004). For a discussion on
the types of factors that may be considered when reviewing a petition for a pardon, also see infra note 47
and accompanying text.
34
See
Board
of
Pardons
and
Paroles,
Other
Forms
of
Clemency,
at
http://www.pap.state.ga.us/other_forms_clemency.htm (last visited on Aug. 18, 2005).
26

203

s/he was convicted or that s/he previously was determined to be innocent of the crime.35
Newly available evidence proving the inmate’s innocence may be the basis for granting a
pardon.36
The inmate also may apply for a commutation of his/her death sentence.
2. Commutations of Death Sentences
To apply for a commutation of a death sentence, the inmate must submit a written
request, in any form, identifying and explaining the grounds on which the request for
commutation is based.37 Supporting documents are neither prohibited nor required.38
After the application for a commutation has been filed, but “prior to the end of court
appeals,” the Board should obtain information, if it has not already done so, concerning
the circumstances surrounding the inmate’s offense and criminal history.39
Based on this information, the Board will assess whether it should consider the case for a
commutation.40 The Board, however, is required to consider and act only upon deathrow inmates’ initial petitions for commutation. 41 All subsequent petitions for
commutation are considered and acted upon only at the Board’s discretion.42
The Board’s decision as to whether it will consider the case for commutation must be
made after “it appears that all appeals through the courts have ceased or been exhausted
or anytime within 72 hours of the earliest time the execution could take place even if
court action is still pending.”43
C. Clemency Decision Making Process
1. Scope of Review for Petitions for Pardons and Commutations
When considering a petition for a pardon, the Board is not required to conduct any
specific type of review. If the Board, however, decides to consider a case for
commutation, it must conduct a “complete and fair review” of the case to assess whether
a commutation is warranted.44 In cases in which the Board decides to consider the case,
35

GA. COMP . R. & REGS . 475-3-.10(3)(a) (2004); see O.C.G.A § 42-9-39(d) (2004) (stating that the
Board can pardon any person convicted of a crime who is subsequently determined to be innocent of that
crime).
36
GA. C OMP. R. & R EGS. 475-3-.10(3)(a) (2004).
37
Id.; O.C.G.A § 42-9-20 (2004) (stating that the Board possess the authority to commute a death
sentence to life imprisonment).
38
GA. C OMP. R. & R EGS. 475-3-.10(2)(b) (2004).
39
Id.
40
Id.
41
McLendon v. Everett, 55 S.E.2d 119, 123 (Ga. 1949).
42
Id.
43
GA. C OMP. R. & R EGS. 475-3-.10(2)(b) (2004).
44
See GA. C OMP. R. & REGS . 475-3-.10(2)(b) (2004).

204

but there is insufficient time to conduct a “complete and fair review” of the case, the
Board may suspend the inmate’s execution for a period of time not to exceed ninety days
in order to complete the required review.45
2. Types of Information Reviewed When Considering Petitions for Pardons and
Commutations
When reviewing the inmate’s case and assessing whether a pardon or commutation is
warranted, the Board may consider the information it obtained pertaining to the inmate’s
criminal history and offense 46 and it must “cause to be brought before it” the following
information:
1. The conduct of the inmate while in prison;
2. The results of any physical or mental examinations;
3. The extent to which the person appears to have responded to the efforts made to
improve his/her social attitude;
4. The industrial record of the inmate while in prison; and
5. The educational programs in which the inmate has participated and the level of
education which the person has attained.47
Additionally, the Board may conduct a further investigation into the inmate, 48 and in
cases in which it “seriously considers” commuting the inmate’s death sentence, it may
notify the sentencing judge and invite him/her to express his/her views on the proposed
action.49
3. Clemency Hearings on the Merits of Petitions for Pardons and Commutations
The Board may hold an appointment/hearing on the inmate’s petition for a pardon and/or
a commutation, if it deems it necessary.50 Generally speaking, the Board will set an
appointment to meet with those advocating for the commutation of an inmate’s death
sentence the day before the execution is scheduled.51 A separate appointment/hearing
may be held to hear arguments from those opposing the pardon or commutation.52 A

45

O.C.G.A. § 42-9-20 (2004); GA. C OMP. R. & REGS . 475-3-.10(2)(b) (2004).
O.C.G.A. § 42-9-41(a)(1)-(8) (2004).
47
O.C.G.A. § 42-9-43(a)(1)-(5) (2004). These factors also may be considered in a case in which the
inmate petitions for a pardon. Id. These factors, however, only are relevant to a petition for a pardon not
based on innocence, as they do not relate to the inmate’s innocence, which is the only factor relevant to a
petition for a pardon based on innocence. See GA. COMP . R. & R EGS. 475-3-.10(3)(a)–(b) (2004).
48
O.C.G.A. § 42-9-43(a) (2004).
49
GA. C OMP. R. & R EGS. 475-3-.07 (2004).
50
GA. C OMP. R. & R EGS. 475-3-.10(2)(b) (2004).
51
E-mail Interview with Kim Patton-Johnson, Public Information Officer, Board of Pardons and Paroles
(Feb. 4, 2005) (on file with author).
52
See, e.g., Board of Pardons and Paroles, News Release: Board Denies Clemency Request for Eddie
Crawford, at http://www.pap.state.ga.us/News.htm (last visited on Aug. 18, 2005); Board of Pardons and
Paroles, News Release: Board Appointment Set for Richmond County D.A., at
46

205

decision on the inmate’s petition normally will be announced the same day as the
appointment.53
D. Clemency Decisions
Following the review of the petition and clemency hearing, if held, Board members will
deliberate individually and then vote on whether a pardon or a commutation is
warranted.54 All information both oral and written received by the Board during the
clemency process is classified “as confidential state secrets” unless declassified by the
Board.55
In order for the Board to grant a pardon or commute a death sentence, a majority of the
Board must vote in the affirmative.56 If a majority of the Board votes in favor of a
commutation, the Board possesses the authority to “commute a sentence of death to one
of life imprisonment.”57 All Board decision’s granting a pardon or commutation must be
put into writing and signed by at least a majority of the Board.58
In its written decision, the Board is not required to disclose the vote breakdown of its
decision or whether an individual Board member voted “yea” or “nay.”59 The Board,
however, may release additional information on the vote breakdown pursuant to a request
by the Governor or Attorney General or if it agrees to do so by unanimous consent.60 The
Chair of the Board may also disclose “sufficient information” to the public to clarify
“misleading or erroneous allegations” when s/he determines it to be in the best interest of
the public and parole system.61

http://www.pap.state.ga.us/News.htm (last visited on Aug. 18, 2005); Rhonda Cook, State Puts Off
Execution Board to Rethink Mentally Ill Killer’s Case, ATLANTA J. C ONST., Feb. 20, 2002, at A1 (noting
that the victim’s mother and the Richmond County District Attorney met with the Board to discuss the
clemency petitioner’s case); Rhonda Cook, Pardons Panel Refuses Clemency for Killer, A TLANTA J.
CONST., Nov. 14, 2001, at E1 (noting that the Cobb County District Attorney met with members of the
Board “to encourage them to deny the request for clemency”).
53
E-mail Interview with Kim Patton-Johnson, Public Information Officer, Board of Pardons and Paroles
(Feb. 4, 2005) (on file with author).
54
Id.; see also Board of Pardons and Paroles, Frequently Asked Questions, at
http://www.pap.state.ga.us/faq's.htm (last visited on Aug. 18, 2004).
55
GA. C OMP. R. & R EGS. 475-3-.09 (2004).
56
O.C.G.A. §§ 42-9-42(a), -20 (2004); 1973 Op. Att’y Gen. No. 73-137.
57
O.C.G.A. § 42-9-20 (2004). But see Mitch Stacy, Williams’ Sentence Commuted Mentally Ill Killer to
Serve Life Sentence With No Parole, MACON TELEGRAPH , Feb. 26, 2002, at A1 (discussing the
commutation of Alexander Williams’ sentence to life without parole); Beth Warren, Mental Illness Cited in
Plea with Execution Set for Tonight, Killer’s Lawyers Seek Clemency, ATLANTA J. CONST., Nov. 19, 2002,
at D4 (discussing the types of sentences given to the inmates whose sentences were commuted and noting
that one of the inmates’ sentences was commuted to life without parole).
58
O.C.G.A. § 42-9-42(b) (2004).
59
GA. C OMP. R. & R EGS. 475-3-.09 (2004).
60
Id.
61
Id.

206

If the Board grants the inmate’s petition for a pardon, the correctional officials must
inform the inmate of the terms and conditions of the pardon and release him/her
accordingly.62 On the other hand, if the Board grants the inmate’s petition for a
commutation to life imprisonment, the inmate must serve a minimum of twenty-five
years before s/he may be eligible for a pardon or parole.63
If the Board denies the inmate’s petition for a pardon or commutation, a new execution
date will be set.

62
63

O.C.G.A. § 42-9-43(c) (2004).
GA. C ONST. art. IV, § 2, para. 2(b)(1).

207

II. ANALYSIS
A. Recommendation #1
The clemency decision making process should not assume that the courts
have reached the merits on all issues bearing on the death sentence in a
given case; decisions should be based upon an independent consideration of
facts and circumstances.

The State of Georgia requires the Board to conduct a “complete and fair” review of all
petitions for commutation.64 It is unclear, however, what a “complete and fair” review
encompasses, as neither the Official Code of Georgia Annotated (O.C.G.A.) nor the
Rules of State Board of Pardons and Paroles describe the scope of a “complete and fair”
review. Similarly, neither the O.C.G.A. nor the Rules mention the appropriate process
for considering petitions for pardons.
Because it is unclear what the command to conduct a “complete and fair” review
encompasses, in terms of both substance and process, it is not possible to assess whether
the State of Georgia is in compliance with Recommendation #1.
B. Recommendation #2
The clemency decision making process should take into account all factors
that might lead the decision maker to conclude that death is not the
appropriate punishment.

Recommendation #2 requires clemency decision makers to consider “all factors” that
might lead the decision maker to conclude that death is not the appropriate punishment.
“All factors” include, but are not limited to, the following:
(1) constitutional claims that were barred in court proceedings due to
procedural default, non-retroactivity, abuse of writ, statutes of limitations,
or similar doctrines, or whose merits the federal courts did not reach
because they gave deference to possibly erroneous, but not
“unreasonable,” state court rulings;
(2) constitutional claims that were found to have merit but did not involve
errors that were deemed sufficiently prejudicial to warrant judicial relief;
(3) lingering doubts of guilt (as discussed in Recommendation #4);
(4) facts that no fact-finder ever considered during judicial proceedings,
where such facts could have affected determinations of guilt or sentence or
the validity of constitutional claims;
(5) patterns of racial or geographic disparity in carrying out the death
penalty in the jurisdiction (as discussed in Recommendation #3);

64

See supra note 44 and accompanying text.

208

(6) inmates’ mental retardation, mental illness, and/or mental competency
(as discussed in Recommendation #4); and
(7) inmates’ age at the time of the offense (as discussed in Recommendation
#4).65
As discussed under Recommendation #1, neither the O.C.G.A. nor the Rules mention the
appropriate process for considering petitions for pardons, but the Rules require the Board
to conduct a “complete and fair” review of all petitions for commutation. The O.C.G.A.
and the Rules, however, do not specify what a “complete and fair” review should
encompass.
Given that it is unclear what a “complete and fair” review encompasses, it is helpful to
review the types of information that the Board must acquire before making any clemency
decision. For all petitions for clemency, the O.C.G.A. and the Rules require the Board to
“obtain” information pertaining to an inmate’s criminal history and offense 66 and “cause
to be brought before it” information regarding the inmate’s behavior while in prison,
including the results of any physical and mental examinations.67 The information that the
Board is required to “obtain” and “cause to be brought before it” is limited to discrete
issues and only includes one of the seven factors required by Recommendation #2—the
mental condition of the inmate. We note, however, that in considering petitions for
pardons, it appears that the Board may also consider newly discovered evidence, which is
another one of the seven factors required by Recommendation #2.68 The Board also is
authorized, but not required, to conduct a further investigation into the inmate.69
Although the Board is required to conduct a “complete and fair” review and “obtain” and
“cause to be brought before it” certain information regarding the inmate, it remains
unclear what factors the Board is required to consider when assessing an inmate’s
petition for a commutation. In an effort to ascertain the types of factors considered, we
reviewed some of the reasons given by the Board for its past clemency decisions.
Since Georgia reinstated the death penalty in 1973, forty-seven inmates sentenced to
death have requested a commutation.70 Of those forty-seven inmates, the Board has
commuted the death sentences of eight inmates71 to either life imprisonment or life
without parole.72 The Board’s decision to commute these inmates’ death sentences can be

65

AMERICAN BAR ASSOCIATION, DEATH W ITHOUT JUSTICE: A G UIDE FOR E XAMINING THE
ADMINISTRATION OF THE DEATH PENALTY IN THE UNITED S TATES (2002).
66
O.C.G.A. § 42-9-41(a)(1)-(8) (2004).
67
O.C.G.A. § 42-9-43(a) (2004).
68
GA. C OMP. R. & R EGS. 475-3-.10(3)(a) (2004); O.C.G.A § 42-9-39(d) (2004).
69
O.C.G.A. § 42-9-43(a) (2004).
70
E-mail Interview with Kim Patton-Johnson, Public Information Officer, Board of Pardons and Paroles
(Feb. 4, 2005) (on file with the author).
71
Id.
72
The names of the eight individuals are as follows: Charles Harris Hill (life imprisonment), Keith
Eugene Patillo (life imprisonment), Eli Beck (life imprisonment), Harold Glenn Williams (life

209

attributed largely to three factors: (1) proportionality of the inmate’s death sentence,73 (2)
the mental condition of the inmate,74 and (3) the behavior of the inmate while in prison
combined with support for commutation.75
The Board also has posthumously pardoned a woman originally denied clemency and
executed in 1945.76 Without publicly acknowledging a reliance on any of the seven
factors required by Recommendation #2 for its posthumous pardon, a Board
spokesperson stated that the decision to deny clemency in 1945 was “a grievous error, as
this case called out for mercy.” 77
The factors considered by the Board when denying inmates’ requests for clemency are
more difficult to ascertain, as the Board is not required to explain its decisions and rarely

imprisonment), Freddie Davis (life imprisonment), William Neal Moore (life imprisonment), Alexander
Williams (life imprisonment without parole), Willie James Hall (life imprisonment without parole). See
e.g. Carlos Campos & Bill Rankin, Murderer’s Sentence Commuted, ATLANTA J. CONST., Jan. 27, 2004, at
B1; Cook, State Puts Off Execution Board to Rethink Mentally Ill Killer’s Case, supra note 52 (discussing
the Davis’ case); Jingle Davis, Ex-Marine's Death Sentence For Murder Is Commuted, A TLANTA J. C ONST.,
March 23, 1991, at B5 (discussing Harold Williams’ case); Holly Morris, Board Spares Murderer Term
Commuted to Life in Prison, A TLANTA J. C ONST., Aug. 22, 1990, at A01 (discussing Moore’s case); Stacy,
supra note 57 (discussing the Alexander Williams’ case); Warren, supra note 57.
73
Charles Harris Hill – Board found Hill’s sentence was disproportionate because an accomplice who
admitted to stabbing the murder victim was sentenced to life; Harold Glenn Williams – Board found
Williams’ sentence was disproportionate because his uncle, who was an accomplice, pleaded guilty to
manslaughter and received a sentence of ten years; Freddie Davis – Board found Davis’ sentence was
disproportionate because a co-defendant, who was determined to be mentally retarded and, thus, ineligible
for death penalty, admitted to the murder. See supra note 72.
74
Keith Eugene Patillo - Board commuted Patillo’s sentence because he was determined to be mentally
retarded; Eli Beck - Board commuted Beck’s sentence because he was determined to be mentally retarded;
and Alexander Williams – Board commuted Williams’s sentence because it determined he suffered from
mental illness. See supra note 72; see also Stacy, supra note 57 (discussing the severity of Alexander
Williams’ mental illness; noting that he thinks Sigourney Weaver is God).
75
William Neal Moore – Board noted the inmate’s successful rehabilitation and support voiced by the
victim’s family weighed heavily in its decision; Willie James Hall – Board persuaded by prisoner’s model
behavior while incarcerated, sworn statements by six jurors who said they would have voted for life
without parole if it were an option at trial, and statement of district attorney that he was comfortable with
commutation. See supra note 72.
76
See Executed Woman to Get Pardon in Georgia, N.Y. TIMES, August 16, 2005. Lena Baker, a black
maid, was sentenced to death by an all-white, all-male jury, and executed for the murder of her white
employer, E.B. Knight. Id. She testified that she “grabbed Knight's gun and shot him when he raised a
metal bar to strike her,” and that Knight “held her against her will in a grist mill and threatened to shoot her
if she tried to leave.” Id. In addition to Lean Baker, the Board of Pardons and Paroles also granted a
pardon to Henry Drake, who was originally sentenced to death, but at the time of the pardon, Drake was
serving a life sentence because his death sentence had been vacated by the federal appeals court and he had
been resentenced to life in prison. See Drake v. Kemp, 762 F2d 1449, 1449 (11th Cir. 1985); Gibson v.
Turpin, 513 S.E.2d 186, 198 n.28 (Ga. 1999). Forejustice, Wrongly Convicted Database Record: Henry
Arthur Drake, at http://forejustice.org/db/Drake__Henry_Arthur_.html (last visited on Sept. 12, 2005).
77
Id.

210

does so when denying clemency.78 After reviewing all of the “News Releases” released
by the Board since January 2, 1998, only two of the releases mention the Board’s
rationale for denying clemency and both releases pertain to the clemency petitions of one
inmate, Eddie Crawford.79 When denying Crawford’s first request for clemency, the
Board cited the following reasons: “the viciousness of the crime, the age of the victim,
and the fact that the murder was committed during an attempt to rape the young
victim.”80 Similarly, the Board denied his second request for clemency by stating that it
was convinced of his guilt given “the overwhelming evidence of [] guilt, including his
own comments about the murder following his arrest, and critical pieces of evidence that
have already been tested for DNA linking Crawford to the crime.” 81
Based on a review of the Board’s decisions, it is clear that the Board has previously
considered factors recommended by Recommendation #2. But, we were unable to obtain
sufficient information to assess whether the Board is required to consider “all factors”
recommended by the ABA. To ensure that “all factors” recommended by the ABA are
considered when reviewing petitions for clemency, we recommend that a rule be adopted
delineating the factors that the Board must consider when reviewing all petitions for
clemency.
C. Recommendation #3
Clemency decision makers should consider as factors in their deliberations
any patterns of racial or geographic disparity in carrying out the death
penalty in the jurisdiction, including the exclusion of racial minorities from
the jury panels that convicted and sentenced the death row inmate.

Recommendation #4
Clemency decision makers should consider as factors in their deliberations
the inmate's mental retardation, mental illness, or mental competency, if
applicable, the inmate’s age at the time of the offense, and any evidence
relating to a lingering doubt about the inmate's guilt.

78

See supra notes 59-61 and accompanying text; see also Carlos Campos, Murderer Denied Clemency
Parole Board Rules Despite Plea From the Victim’s Mother, A TLANTA J. C ONST., Feb. 26, 2005 (noting
that “[t]he five-member parole board does not discuss its decisions to deny clemency, said spokeswoman
Kim Patton-Johnson”).
79
See Board of Pardons and Paroles, News Release: Parole Board Denies Clemency Request for Eddie
Crawford, at http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005); Board of Pardons and
Paroles, News Release: Board Denies Clemency Request for Eddie Crawford, at
http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005).
80
See Board of Pardons and Paroles, News Release: Parole Board Denies Clemency Request for Eddie
Crawford, at http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005).
81
See Board of Pardons and Paroles, News Release: Board Denies Clemency Request for Eddie
Crawford, at http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005).

211

Recommendation #5
Clemency decision makers should consider as factors in their deliberations an
inmate's possible rehabilitation or performance of significant positive acts while on
death row.

As discussed in the analysis under Recommendation #2, it is unclear what factors the
Board must consider when assessing an inmate’s petition for clemency. The Board,
however, is required to “obtain” information pertaining to the inmate’s criminal history
and offense and “cause to be brought before it” information about the inmate’s behavior
while in prison.82
The information that the Board must “obtain” or “cause to be brought before it” is not
relevant to Recommendation #3, but some of it is relevant to Recommendations #4 and 5.
This information includes the results of any of the inmate’s mental and physical
examinations, the inmate’s conduct while in prison, the extent to which the person
appears to have responded to the efforts made to improve his/her social attitude, the
industrial record of the inmate while in prison, and the educational programs in which the
inmate has participated and the level of education which the person has attained. 83 It
appears that the Board has considered some of this information when assessing inmates’
petitions for clemency. For example, based on the eight cases in which the Board has
commuted inmates’ death sentences, the Board has considered the inmate’s mental
condition in at least three cases84 and the inmate’s behavior while in prison in at least two
cases.85
Although the Board has previously considered issues relevant to Recommendations #4-5,
we were unable to obtain sufficient information to assess whether the Board is required to
consider the factors addressed in Recommendations #3-5. To ensure that the factors
included in Recommendations #3-5 are considered when reviewing petitions for
clemency, we recommend that a rule be adopted delineating the factors that the Board
must consider when reviewing all petitions for clemency.

82

See supra notes 23 and 47 and accompanying text.
However, the Board is not required to “obtain” or “cause to be brought before it” information
regarding the inmate’s age at the time of the offense or evidence relating to lingering doubts about the
inmate’s guilt.
84
See supra notes 72-75.
85
Id.; see also Michael L. Radelet and Barbara A. Zsembik, Executive Clemency in Post-Furman Capital
Cases, 27 U. R ICH . L. R EV. 289, 302-03, 312 (1993) (noting that the case of William Neal Moore was the
only case reviewed by the authors in which rehabilitation of the offender while in prison was the primary
reason given for the commutation of the death sentence).
83

212

D. Recommendation #6
In clemency proceedings, the death row inmates should be represented by
counsel and such counsel should have qualifications consistent with the
American Bar Association Guidelines on the Appointment and Performance
of Defense Counsel in Death Penalty Cases.

The State of Georgia does not have any laws, rules, procedures, standards, or guidelines
requiring the appointment of counsel to inmates petitioning for clemency. It should be
noted though that in April 2005, the Georgia Public Defender Standards Council
(GPDSC) adopted, as the “GPDSC Death Penalty Defense Standards,” the ABA
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty
Cases (ABA Guidelines), which require counsel to be provided at all stages of a capital
trial, including clemency proceedings.86 The GPDSC, however, adopted the ABA
Guidelines “in full except where they contradict Georgia law.”87 Given that the Georgia
Supreme Court, in Gibson v. Turpin,88 has found that there is no constitutional right to
appointed counsel beyond direct appeal, it appears that the ABA Guideline requiring
counsel for clemency proceedings may potentially contradict Georgia law, meaning that
it would not be an enforceable requirement under the GPDSC Death Penalty Defense
Standards. The ABA Guidelines also require clemency attorneys to possess certain
qualifications, but it is unclear whether the qualification requirements apply to attorneys
handling clemency petitions given that clemency petitioners are not entitled to be
represented by counsel.89 Additionally, the GPDSC Death Penalty Defense Standards
have yet to become effective, as we have been told that the standards have been
determined to have a “fiscal impact” and require ratification by the General Assembly to
become effective.90

86

GA. P UB. DEFENDER STANDARDS C OUNCIL, DEATH P ENALTY DEFENSE S TANDARDS, at
http://www.gidc.com/cpdsystem-standards-death_penalty_case.pdf (last visited on Sept. 13, 2005); ABA
GUIDELINES FOR THE APPOINTMENT AND P ERFORMANCE OF DEATH P ENALTY CASES (2003) [hereinafter
ABA GUIDELINES], at http://www.gpdsc.com/cpdsystem-standards-aba_dp_guidelines.pdf (last visited on
Sept. 13, 2005); G A. P UB. DEFENDER STANDARDS COUNCIL, F INAL P AGE OF DEATH P ENALTY DEFENSE
STANDARDS , at http://www.gidc.com/cpdsystem-standards-death_penalty_case_final_page.pdf (last visited
on Sept. 13, 2005).
87
Id.
88
Gibson v. Turpin, 513 S.E.2d 186 (Ga. 1999) (finding no right to appointed counsel in a state habeas
corpus proceeding).
89
ABA GUIDELINES, supra note 86.
90
All standards adopted by the GPDSC that are determined by the General Oversight Committee to have
a “fiscal impact” are not effective until ratified by joint resolution of the General Assembly and upon
approval of the resolution by the Governor or upon its becoming law without his/her approval. See
O.C.G.A. 17-12-8(c) (2005); see also Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on
file with the author); Georgia Public Defender Standards Council, 2005 Legislative Session Report #8, at
http://www.gpdsc.com/resources-legislation-update_04-05-05.htm (last visited on Oct. 5, 2005) (noting the
General Oversight Committee “determined that all of the standards adopted [as of March 23, 2005] by the
[GPDSC] have a fiscal impact”).

213

On the issue of representation at clemency proceedings, the Board’s website clearly states
that “[r]epresentation by an attorney is not necessary for any type of clemency
consideration.”91 It further states that “[c]onsideration for parole is automatic, and
procedures for application for other types of clemency are not too formal or complex for
the average person to understand.”92 Inmates, however, may have a privately obtained
attorney represent them throughout the clemency process.93
The State of Georgia does not require attorneys representing inmates petitioning for
clemency to possess qualifications consistent with the recommendations contained in the
Defense Services Section. Rather, the O.C.G.A. and the Rules contain just one
qualification requirement and it only pertains to attorneys who are being paid to appear or
practice in any matter before the Board.94 The O.C.G.A. and the Rules require these
attorneys to be licensed and active members in good standing of the State Bar of
Georgia.95 Neither the O.C.G.A. nor the Rules require paid attorneys to possess any
other qualifications or mention any requisite qualifications for non-paid attorneys.
Based on this information, the State of Georgia fails to comply with the requirements of
Recommendation #6. Not only does it fail to provide for the appointment of counsel to
inmates petitioning for clemency, but it also does not require attorneys representing
inmates throughout the clemency process to possess qualifications consistent with the
recommendations in the Defense Services Section.
E. Recommendation #7
Prior to clemency hearings, death row inmates’ counsel should be entitled to
compensation and access to investigative and expert resources. Counsel also
should be provided sufficient time both to develop the basis for any factors
upon which clemency might be granted that previously were not developed
and to rebut any evidence that the State may present in opposing clemency.

The State of Georgia does not have any laws, rules, procedures, standards, or guidelines
entitling death-row inmates’ counsel to compensation (see analysis under
Recommendation #6) or access to investigative and expert resources.96

91

Board
of
Pardons
and
Paroles,
Other
Forms
of
Clemency,
at
www.pap.state.ga.us/other_forms_clemency.htm (last visited on Aug. 19, 2005).
92
Id.
93
GA. C OMP. R. & R EGS. 475-3-.02 (2004).
94
O.C.G.A. § 42-9-16(a) (2004); G A. C OMP. R. & REGS . 475-3-.02(3) (2004); see also Georgia Board of
Pardons and Paroles, Other Forms of Clemency, at www.pap.state.ga.us/other_forms_clemency.htm (last
visited on Aug. 19, 2005).
95
O.C.G.A. § 42-9-16(a) (2004); G A. C OMP. R. & REGS. 475-3-.02(3) (2004); see also Georgia Board of
Pardons and Paroles, Other Forms of Clemency, at www.pap.state.ga.us/other_forms_clemency.htm (last
visited on Aug. 19, 2005).
96
See generally GA. COMP . R. & R EGS. 475-3-.10(2)(b) (2004); O.C.G.A. §§ 42-9-41, -43 (2004).

214

Although death-row inmates’ counsel are not entitled to compensation or resources, it
does appear that they have sufficient time to develop the basis for any factors upon which
clemency might be granted that previously were not developed, as there are no filing
deadlines for clemency petitions. It does not appear, however, that death-row inmates’
counsel are provided with an opportunity to rebut evidence that the state presents in
opposition to clemency. For example, after an inmate files his/her petition for clemency,
the state is not required to file any documents explaining its opposition to the inmate’s
petition. Similarly, if the Board holds an appointment/hearing on an inmate’s clemency
petition, it hears separately and privately from those supporting and those opposing
clemency (see analysis under Recommendation #8). Thus, it appears that a death-row
inmate may never hear the states’ arguments opposing his/her clemency petition.
Based on this information, the State of Georgia is only in partial compliance with
Recommendation #7.
F. Recommendation #8
Clemency proceedings should be formally conducted in public and presided
over by the Governor or other officials involved in making the clemency
determination.

The State of Georgia does not have any laws, rules, procedures, standards, or guidelines
requiring the Board to hold and preside over public interviews, meetings, or hearings on
the merits of inmates’ requests for clemency.97 According to the Board’s Public
Information Officer, 98 however, the Board generally holds and presides over an
appointment/hearing on an inmate’s request for clemency on the day before the execution
is scheduled.99 The appointment/hearing is not public and is closed to the media.100 Not

97

GA. C OMP. R. & R EGS. 475-3-.10(2)(b) (2004).
See E-mail Interview with Kim Patton-Johnson, Public Information Officer, Board of Pardons and
Paroles (Feb. 4, 2005) (on file with author).
99
See id. (noting that “[a]ll Board members will be present for the appointment”); see also Board of
Pardons and Paroles, News Release: Board Appointment for Robert Hicks Is Rescheduled, at
http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005); Board of Pardons and Paroles, News
Release: Board Sets Second Appointment for Eddie Crawford, at http://www.pap.state.ga.us/News.htm
(last visited on Aug. 19, 2005); Board of Pardons and Paroles, News Release: Board Sets Appointment for
Timothy Don Carr, at http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005); Board of
Pardons and Paroles, News Release: Board Sets Appointment for Stephen Mobley, at
http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005); Board of Pardons and Paroles, News
Release: Board Sets Appointment For Larry Eugene Moon, at http://www.pap.state.ga.us/News.htm (last
visited on Aug. 19, 2005); Board of Pardons and Paroles, News Release: Board Appointment for Robert
Hicks Is Rescheduled, at http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005); Board of
Pardons and Paroles, News Release: Board Appointment Set For Wallace Fugate, at
http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005); Board of Pardons and Paroles, News
Release: Board Sets Appointment for Stephen Mobley, at http://www.pap.state.ga.us/News.htm (last
visited on Aug. 19, 2005).
100
See, e.g., Board of Pardons and Paroles, News Release: Board Sets Appointment for Timothy Don
Carr, at http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005); Sandy Hodson, Board Will
98

215

only are the appointments/hearings not open to the public, if and when they are held, all
other parts of the clemency process are private. The Board is not required to release to the
public the evidence it considered during the clemency process, its reasons for granting or
denying an inmate’s clemency petition, or its vote count on the inmate’s petition.101
Furthermore, when the Board holds and presides over appointments/hearings, it does not
appear that all five Board members are required to attend each inmate’s
appointment/hearing. For example, then-Board member Gene Walker failed to attend the
appointment/hearing on Fred Gilreath’s request for clemency and, despite his absence,
voted to deny Gilreath’s clemency request.102 When Mr. Gilreath challenged the Georgia
clemency process for failing to comply with due process, the United State District Court
for the Northern District of Georgia, in upholding the clemency process, noted that
Walker was not the first member to be absent at an inmate’s appointment/hearing and that
prior to casting his ballot, Walker “had seen a comprehensive written file on the matter
and had the oral presentations summed up for him by a clemency-board lawyer.” 103
Even if the Board generally holds appointments/hearings on inmates’ requests for
clemency, it is not required to and may not hold appointments/hearings in all cases.104
Similarly, if and when an appointment/hearing is held, the Board is not required to hold
the appointment/hearing in public and all Board members are not required to attend. The
State of Georgia, therefore, fails to meet the requirements of Recommendation #8.
G. Recommendation #9
If two or more individuals are responsible for clemency decisions or for
making recommendations to clemency decision makers, their decisions or
recommendations should be made only after in-person meetings with
clemency petitioners.

The State of Georgia does not have any laws, rules, procedures, standards, or guidelines
requiring the entire Board or any of its five members to meet with inmates petitioning for
clemency at any time during the clemency process. As discussed under Recommendation
# 8, the Board or at least some of its members generally hold an appointment/hearing on
an inmate’s request for clemency, but the purpose of the appointment/hearing is for the

Rule on Execution; Attorney of Death Row Inmate Will Request that Officials Commute Sentence to Life in
Prison, AUGUSTA C HRON., Aug. 18, 2000, C01 (noting that “the [parole] hearing is closed to the public, but
anyone may write to the parole board in support of or opposition to clemency, [spokesperson Kathy
Browning] said”).
101
See GA. C OMP. R. & REGS . 475-3-.09 (2004).
102
Cook, Pardons Panel Refuses Clemency for Killer, supra note 52.
103
Gilreath v. State Board of Pardons and Paroles, 273 F.2d 932, 934 (11th Cir. 2001).
104
See James R. Acker & Charles S. Lanier, May God—Or the Governor—Have Mercy: Executive
Clemency and Executions in Modern Death Penalty Systems, 36 CRIM . L. B ULL. 200, 224 n.122 (2000)
(noting that “the Georgia Board of Pardons and Paroles had summarily denied four of the seven
applications for clemency it had received in capital cases without a hearing, and had conducted hearings in
the other three cases”).

216

Board members to meet with “representatives for the condemned inmate,” not the inmate
himself/herself.105 It does not appear that the entire Board or any members of the Board
ever meet with the clemency petitioner during the clemency process. In fact, apart from
attending the appointment/hearing, which not all Board members are required to attend,
the Board is not required to and does not ever meet in entirety to discuss or deliberate
inmates’ petitions for clemency.106
The State of Georgia is not in compliance with Recommendation #9, as it does not
require the Board to meet with clemency petitioners at any time during the clemency
process.
H. Recommendation #10
Clemency decision makers should be fully educated, and should encourage
education of the public, concerning the broad-based nature of clemency
powers and the limitations on the judicial system's ability to grant relief
under circumstances that might warrant grants of clemency.

The State of Georgia does not have any laws, rules, procedures, standards, or guidelines
requiring the Board to be fully educated, or to encourage the education of the public,
about the nature of clemency powers or the limitations on the judicial system’s ability to
grant relief under circumstances that might warrant grants of clemency. Instead, the
Board members are trained “internally” by senior managers and directors of each division
within the parole system and have the option, but are not required, to attend periodic
training sessions. Although Board members are provided with internal training, the scope
and content of the training is unknown. Similarly, the optional periodic training sessions
are not particular to the clemency process and the regularity of sessions pertaining to
clemency is unknown. 107 Based on this information, the State of Georgia fails to meet
the requirements of Recommendation #10.

105

See, e.g., Board of Pardons and Paroles, News Release: Board Denies Fugate Petition, at
http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005); Board of Pardons and Paroles, News
Release: Parole Board Denies Clemency for Larry Eugene Moon, at http://www.pap.state.ga.us/News.htm
(last visited on Aug. 19, 2005). “Representatives for condemned inmates” seem to include attorneys, other
representatives advocating for clemency, and friends and family members of the inmate). Id. It is unclear
whether the inmate is authorized to be present at the hearing if s/he does not have any “representatives.”
106
See E-mail Interview with Kim Patton-Johnson, Public Information Officer, Board of Pardons and
Paroles (Feb. 4, 2005) (on file with author); see also Board of Pardons and Paroles, News Release: Board
Appointment for Robert Hicks Is Rescheduled, at http://www.pap.state.ga.us/News.htm (last visited on
Aug. 19, 2005).
107
See Board of Pardons and Paroles, News Release: Parole Board Schedules Open Meeting For
Training, at http://www.pap.state.ga.us/News.htm (last visited on Aug. 19, 2005) (noting that in June 2003,
the Department of Justice conducted a daylong session for Board members about overseeing sex offenders).

217

I. Recommendation #11
To the maximum extent possible, clemency determinations should be
insulated from political considerations or impacts.

In the State of Georgia, the Board possesses the authority to make clemency
determinations108 and no other branch of the government is authorized to “usurp or
substitute its functions for the functions of the Board.”109 The Board is not required to
release to the public the evidence it considered during the clemency process or to explain
any of its clemency decisions, and each Board member’s decision to grant or deny
clemency is completely confidential.110 Thus, the responsibility for and criticism
associated with any particular clemency decision is shared among the entire Board. Both
the Board’s exclusive authority to make clemency decisions and the confidentially
surrounding the decision making process serve to insulate the Board from political
considerations and impacts.
Because the materials considered by the Board are not part of public record, it is
impossible to determine the extent to which inappropriate political considerations or
impacts are introduced into the process.

108
109
110

GA. C ONST. art. IV, § 2, para. 1.
O.C.G.A. § 42-9-1 (2004).
GA. C OMP. R. & R EGS. 475-3-.09 (2004).

218

CHAPTER TEN
VOIR DIRE AND CAPITAL JURY INSTRUCTIONS
INTRODUCTION TO THE ISSUE
In virtually all jurisdictions that authorize capital punishment, jurors in capital cases have
the "awesome responsibility" of deciding whether another person will live or die.1
Jurors, prosecutors, defendants, and the general public rely upon state trial judges to
present fully and accurately, through jury instructions, the applicable law to be followed
in jurors’ decision making. Often, however, jury instructions are poorly written and
conveyed. As a result, instructions often serve only to confuse jurors, not to
communicate.
It is important that trial judges impress upon jurors the full extent of their responsibility
to decide whether the defendant will live or die or to make their advisory
recommendation on sentencing. Some trial courts, whether intentionally or not, give
instructions that may lead jurors to misunderstand their responsibility or to believe that
reviewing courts independently will determine the appropriate sentence. In some cases,
jurors conclude that their decisions are not vitally important in determining whether a
defendant will live or die.
It also is important that courts ensure that jurors do not act on the basis of serious
misimpressions, such as a belief that a sentence of “life without parole” does not
ensure that the offender will remain in prison for the rest of his or her life. Such jurors
may vote to impose a death sentence because they erroneously believe that otherwise, the
defendant may be released within a few years.
It is similarly vital that jurors understand the true meaning of mitigation and their ability
to bring mitigating factors to bear in their consideration of capital punishment.
Unfortunately, jurors often believe that mitigation is the same as aggravation, or that they
cannot consider evidence as mitigating unless it is proved beyond a reasonable doubt to
the satisfaction of every member of the jury.

1

Caldwell v. Mississippi, 472 U.S. 320, 341 (1985).

219

I.

FACTUAL DISCUSSION
A. Voir Dire

In any case in which the state announces its intention to seek the death penalty, the court
must impanel at least 42 prospective jurors from which the state and defense must select
a total of twelve jurors2 and one or more alternative jurors, if deemed necessary by the
judge.3 If after striking from the panel there are less than twelve qualified jurors, the
presiding judge must “summon such numbers of persons who are competent jurors as
may be necessary to provide a full panel.”4 The state and defense will examine the
prospective jurors to assess their qualifications and overall fitness to serve. This process
is known as voir dire.
1. Structure and Scope of Voir Dire
In a death penalty case, either the state or the defense may request a sequestered voir dire.
The granting of a sequestered voir dire, however, is within the sole discretion of the
judge.5 To support a claim that a denial of sequestered voir dire was an abuse of
discretion, the defendant must prove that s/he was prejudiced by the denial.6
The scope of voir dire is largely left to the court’s discretion 7 and the court may limit the
types of questions asked.8 The scope of voir dire, however, must be broad enough to
ascertain the “fairness and impartiality” of the prospective jurors9 and their views
regarding the death penalty.10
During voir dire, the judge must ask the prospective jurors the “usual voir dire
questions.”11 The “usual voir dire questions” are the four questions articulated in section

2

O.C.G.A. § 15-12-160 (2004).
O.C.G.A. § 15-15-168 (2004).
4
O.C.G.A. § 15-12-160 (2004).
5
See Sanborn v. State, 304 S.E.2d 377, 379 (Ga. 1983); see also Curry v. State, 336 S.E.2d 762, 766
(Ga. 1985) (finding no abuse of discretion in the court’s denial of sequestered voir dire, either individually,
or by panels, absent evidence that prospective jurors lied under oath as result of being "educated" by
listening to the voir dire of other prospective jurors); Finney v. State, 320 S.E.2d 147, 150 (Ga. 1984)
(finding denial of sequestered voir dire not an abuse of discretion, where defendant failed to show any
prejudice from the denial).
6
O.C.G.A. § 15-12-133 (2004); Sanborn, 304 S.E.2d at 379.
7
Lawler v. State, 576 S.E.2d 841, 848 (Ga. 2003); Barnes v. State, 496 S.E.2d 674, 683 (Ga. 1998).
8
O.C.G.A. § 16-5-1(c) (2004); Carter v. State, 315 S.E.2d 646, 651 (Ga. 1984); see also Cobb v. State,
260 S.E.2d 60, 66 (Ga. 1979) (finding trial judge did not abuse discretion in limiting voir dire examination
so as to exclude two questions to the effect of whether prospective jurors would have been reluctant to
return not guilty verdict or to vote against death penalty if they had, or were only jurors who had,
reasonable doubts about such matters since such questions were technical legal questions concerning
presumption of innocence).
9
Barnes, 496 S.E.2d at 674; see also Cromartie v. State, 514 S.E.2d 205, 211 (Ga. 1999).
10
Cromartie, 514 S.E.2d at 211.
11
O.C.G.A. § 15-12-133 (2004); see also Jordan v. State, 276 S.E.2d 224, 234 (Ga. 1981).
3

220

15-12-64 of the Official Code of Georgia Annotated (O.C.G.A.), which will be discussed
below.12 The judge must address all questions pertaining to opposition to the death
penalty (“Witherspoon questions”) 13 and support of the death penalty (“reverseWitherspoon questions”)14 to each prospective juror individually.15 The state and defense
also have the right to individually examine each juror.16 The judge, however, may
require that questions be addressed once only to the full array of prospective jurors as
long as the jurors are able to respond individually to the questions asked.17
The O.C.G.A. specifically provides that the state and defense have the right to ask any
prospective juror “any matter or thing which would illustrate any interest of the juror in
the case . . . any fact or circumstance indicating any inclination, leaning, or bias which
the juror might have respecting the subject matter of the action or the counsel or parties
thereto, and the religious, social, and fraternal connection of the juror.”18 The Georgia
Supreme Court, however, has limited this broad statement of allowable questions during
voir dire.19 These limitations are discussed below.
a. Required Questioning During Voir Dire
Pursuant to section 15-12-164 of the O.C.G.A., jurors must be asked the following
“usual” questions during voir dire:
(1) Have you, for any reason, formed and expressed any opinion in regard
to the guilt or innocence of the accused? If the juror answers in the
negative, the question in paragraph (2) of this subsection shall be
propounded to him[/her];

12

Jordan, 276 S.E.2d at 234.
See Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) (holding that “a sentence of death cannot be
carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause
simply because they voiced general objections to the death penalty or expressed conscientious or religious
scruples against its infliction”).
14
See Morgan v. Illinois, 504 U.S. 719, 724 (1992).
15
GA. U NIF. S UPER . CT. R. 10.1; Miller v. State, 380 S.E.2d 690, 692 (Ga. 1989) (finding that judge did
not commit error by death-qualifying each juror); Cargill v. State, 340 S.E.2d 891, 901 (Ga. 1986); Curry v.
State, 336 S.E.2d 762, 766 (Ga. 1985) (stating that trial judge has “exclusive responsibility for asking all
Witherspoon and reverse-Witherspoon questions”). It is important to note that prior to the 1985 adoption of
Uniform Superior Court Rule 10.1, courts were not required to address Witherspoon and reverseWitherspoon questions to the prospective jurors individually. See, e.g., Arnold v. State, 224 S.E.2d 386,
391 (Ga. 1976) (finding “no error in propounding the Witherspoon and reverse-Witherspoon questions to
the veniremen in a group”).
16
O.C.G.A. § 15-12-133 (2004) (formerly GA. CODE ANN. § 59-705).
17
GA. UNIF. SUPER . C T. R. 10.1.
18
O.C.G.A. § 15-12-133 (2004).
19
Henderson v. State, 306 S.E.2d 645, 646-48 (Ga. 1983).
13

221

(2) Have you any prejudice or bias resting on your mind either for or
against the accused? If the juror answers in the negative, the question in
paragraph (3) of this subsection shall be propounded to him[/her];
(3) Is your mind perfectly impartial between the state and the accused? If
the juror answers this question in the affirmative, [s/]he shall be adjudged
and held to be a competent juror in all cases where the authorized penalty
for the offense does not involve the life of the accused; but when it does
involve the life of the accused, the question in paragraph (4) of this
subsection shall also be put to him[/her];
(4) Are you conscientiously opposed to capital punishment?
(Witherspoon-question). If the juror answers this question in the negative,
[s/]he shall be held to be a competent juror. 20
Following these questions, the state and defense may introduce evidence to show that a
juror’s answers are untrue.21 It is the duty of the judge to determine the truth of the
answers.22
If a juror responds in the affirmative to question #4, meaning that s/he is conscientiously
opposed to capital punishment, the court may ask the juror one or more of the following
questions:
(1) Would your reservations about capital punishment prevent you from
making an impartial decision on the issue of punishment for the
defendant's conviction of murder according to the evidence and the
instructions of the court?
(2) Are your reservations about capital punishment such that you could
never vote to impose the death penalty regardless of the evidence and the
instructions of the court?
(3) Are your reservations about capital punishment such that you would
refuse even to consider its imposition in the case before you regardless of
the evidence and instructions of the court?
(4) Are you irrevocably committed before the trial has even begun on the
issue of punishment for the conviction of murder to vote against the

20

O.C.G.A. § 15-12-164(a)(4) (2004); see also Curry, 336 S.E.2d at 766 (finding that the question “Are
you conscientiously opposed to capital punishment?” is not so confusing as to render it unconstitutionally
vague).
21
O.C.G.A. § 15-12-164(b) (2004).
22
O.C.G.A. § 15-12-164 (2004).

222

penalty of death regardless of the evidence, facts, and circumstances that
emerge in the course of the proceedings and instructions of the court?23
Neither the O.C.G.A. nor the Uniform Superior Court Rules contain pattern “reverseWitherspoon” questions.
b. Proper Questioning During Voir Dire
The state and defense may ask the prospective jurors questions concerning their possible
biases and prejudices.24 This includes but is not limited to questions regarding racial
bias,25 as well as biases regarding parole.26 However, questions about prospective jurors’
biases regarding parole must be limited to “jurors’ willingness to consider both a life
sentence that allows for the possibility of parole and a life sentence that does not.”27 The
Georgia Supreme Court, in Zellmer v. State, approved the following voir dire questions
regarding parole:
(a) If the defendant is found guilty of murder, and it becomes your duty to
choose and impose one of the three sentencing options of death, life
without parole, and life with the possibility of parole, and you do not feel
death is the appropriate sentence, would you automatically choose and
impose life without parole, without giving any consideration to a sentence
of life with the possibility of parole? Are you conscientiously opposed to
a sentence of life with the possibility of parole for one who has been found
guilty of murder?
(b) If the defendant is found guilty of murder, and it becomes your duty to
choose and impose one of the three sentencing options of death, life
without parole, and life with the possibility of parole, and you do not feel
death is the appropriate sentence, would you automatically choose and
impose life with the possibility of parole, without giving any consideration
to a sentence of life without parole? Are you conscientiously opposed to a
sentence of life without parole for one who has been found guilty of
murder?28

23

Redd v. State, 252 S.E.2d 383, 385-86 (Ga. 1979).
Henderson, 306 S.E.2d at 647 n.1; Reid v. State, 200 S.E.2d 454, 455 (Ga. Ct. App. 1973) (citing Ham
v. South Carolina, 409 U.S. 524 (1973)).
25
Henderson, 306 S.E.2d at 647 n.1; Reid, 200 S.E.2d at 455.
26
Lance v. State, 560 S.E.2d 663, 671 (Ga. 2002); Zellmer v. State, 534 S.E.2d 802, 803-04 (Ga. 2000).
27
Lance, 560 S.E.2d at 671; Zellmer, 534 S.E.2d at 803-04.
28
Zellmer, 534 S.E.2d at 803-04.
24

223

c. Improper Questioning During Voir Dire
The trial court may preclude the state and defense from asking “repetitive, misleading,
and irrelevant questions.”29 Additionally, a prospective juror may not be asked questions
pertaining to the law and its application to the case on trial,30 questions that require
him/her to prejudge the case,31 or questions that require him/her to enumerate
hypothetical circumstances in which s/he might or might not vote to impose the death
penalty.32 Questions regarding prospective jurors’ understanding of the meaning of life
sentences are not generally permitted in capital trials, as prospective jurors’ views on the
subject are extraneous to the ability to serve.33
After the judge, state, and defense have examined the prospective jurors on voir dire, the
court will proceed to jury selection.34
2. Juror Selection
a. Challenges for Cause
A challenge for cause is “a request from a party to a judge that a certain prospective juror
not be allowed to be a member of the jury because of specified causes or reasons.”35
There are two types of challenges for cause: (1) challenges based on the prospective
juror’s qualifications to serve as a juror pursuant to section 15-12-163 of the O.C.G.A.;
and (2) challenges based upon a prospective juror’s admissions or facts or circumstances
regarding the juror that raise the appearance of actual biases for or against one of the
parties.36

29

Fults v. State, 548 S.E.2d 315, 320 (Ga. 2001) (citing Gissendaner v. State, 532 S.E.2d 677, 679 (Ga.
2000)); Barnes v. State, 496 S.E.2d 674, 683 (Ga. 1998) (excluding questions that do not deal directly with
the case at hand); Hall v. State, 383 S.E.2d 128, 130 (Ga. 1989).
30
Henderson, 306 S.E.2d at 647 n.1.
31
Lucas v. State, 555 S.E.2d 440, 447 (Ga. 2001); Rhode v. State, 552 S.E.2d 855, 859-60 (Ga. 2001)
(finding that counsel's questions may not call for prejudgment of the case or fail to set forth the entire
context in which the jury would consider the death sentence); Cobb v. State, 260 S.E.2d 60, 66 (Ga. 1979)
(excluding the following question as it was an attempt to obtain a prejudgment of the case: “whether a
prospective juror would have any bias or prejudice against a young person accused of a crime if the
evidence revealed that he was acting under the direction and control of a much older person, such as his
uncle”).
32
Hall, 383 S.E.2d at 130 (finding that it is improper to ask a prospective juror on voir dire to describe
the kind of case that, in the juror's opinion, would or would not warrant a death sentence); Gissendaner,
532 S.E.2d at 677 n.12 (finding that capital murder defendant was not entitled to question potential jurors
as to their willingness to impose death penalty under specific hypothetical circumstances); McMichen v.
State, 458 S.E.2d 833 n.40 (Ga. 1995) (finding that trial court properly refused to permit defendant to
question potential jurors concerning types of cases jurors felt would warrant death penalty).
33
Waldrip v. State, 482 S.E.2d 299, 308 (Ga. 1997).
34
GA. UNIF. SUPER . C T. R. 11.
35
BLACK’S LAW DICTIONARY 157 (6th ed. 1991).
36
Jordan v. State, 276 S.E.2d 224, 234 (Ga. 1981).

224

Section 15-12-163 of the O.C.G.A. provides that the state or defense may make any of
the following objections regarding the juror’s qualifications to serve:
1.
2.
3.
4.
5.

6.

That the juror is not a citizen, resident in the county;
That the juror is under 18 years of age;
That the juror is incompetent to serve because of mental illness or mental
retardation, or that the juror is intoxicated;
That the juror is so near of kin to the prosecutor, the accused, or the victim
as to disqualify the juror by law from serving on the jury;
That the juror has been convicted of a felony in a federal court or any
court of a state of the United States and the juror’s civil rights have not
been restored; or
That the juror is unable to communicate in the English language.37

The state and the defense also may challenge a juror based upon his/her views and
opinions on the death penalty and other views and opinions relevant to the case. The
standard for determining whether a juror should be disqualified based upon his/her views
on capital punishment is “whether the juror’s views would ‘prevent or substantially
impair the performance of his/her duties as a juror in accordance with his/her instructions
and his/her oath.’”38 Similarly, in order to disqualify a juror based upon other opinions or
views, it must be established that the juror’s opinion was “so fixed and definite” that the
juror would not be able to set aside his/her opinion and decide the case based on the
evidence and the court’s instruction.39
If, during voir dire, a prospective juror expresses conscientious opposition to capital
punishment, s/he cannot be automatically disqualified.40 Rather, the judge, state, or
defense must ask the juror additional questions to clarify the juror’s views on capital
punishment.41 If a prospective juror states unambiguously that s/he would automatically
vote against the imposition of capital punishment, notwithstanding the evidence
introduced by the parties or the law charged by the judge, s/he can be excluded from
serving on the jury.42 Likewise, if a potential juror states that if the defendant was found
guilty of the capital offense, s/he would automatically vote for the death penalty, s/he can
be excluded for cause.43
37

O.C.G.A. § 15-12-163 (2004).
Brannan v. State, 561 S.E.2d 414, 422 (Ga. 2002); Jenkins v. State, 498 S.E.2d 502, 510 (Ga. 1998);
Hill v. State, 427 S.E.2d 770, 774 (Ga. 1993).
39
Fults v. State, 548 S.E.2d 315, 320 (Ga. 2001); Barnes v. State, 496 S.E.2d 674, 683 (Ga. 1998).
40
Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) (finding that it is unconstitutional to excuse a juror
simply because s/he is conscientiously opposed to capital punishment); Curry v. State, 336 S.E.2d 762, 766
(Ga. 1985).
41
Curry, 336 S.E.2d at 766; GA. UNIF. S UPER. CT. R. 10.1; Brannan, 561 S.E.2d at 422.
42
U.S. C ONST. amends. VI, XIV; Alderman v. Austin, 663 F.2d 558, 563 (5th Cir. 1981).
43
Pope v. State, 345 S.E.2d 831, 838 (Ga. 1986), overruled on other grounds by Nash v. State, 519
S.E.2d 893, 894 (Ga. 1999); Finney v. State, 320 S.E.2d 147, 150 (Ga. 1984) (finding no error in refusing
to excuse for cause three veniremen whose voir dire responses allegedly showed a bias in favor of the death
penalty, where the voir dire testimony failed to show that any of the three would vote automatically for the
38

225

In determining whether a potential juror should be disqualified, the judge must view the
voir dire responses as a whole.44 “It is not isolated responses, but the ‘final distillation’
of a prospective juror’s voir dire which determines whether a juror is qualified to
serve.”45
b. Peremptory Challenges
A peremptory challenge is “a request from a party that a judge not allow a certain
prospective juror to be a member of the jury.”46 In all death penalty cases, the defendant
and the state may each peremptorily challenge fifteen jurors.47 The number of
peremptory challenges allotted to the defendant does not increase if s/he is indicted for
more than one charge.48
The use of a peremptory challenge does not require any sort of justification or cause49
unless the state or defense believes that the other party is engaging in purposeful
discrimination on the grounds of race50 or gender. 51 If the state or defense believes that
jurors are being struck from the jury based on their race or gender, the party opposing the
strike may challenge the use of the peremptory challenge.52 In order to block the strike,
the opposing party must establish a prima facie case of racial or gender discrimination.53
An “overwhelming pattern of strikes [against jurors of one race] establishes a prima facie
inference of racial discrimination.”54 If the opposing party establishes a prima facie case,
then the other party must provide a race or gender-neutral explanation for the exercise of

death penalty simply because defendant had been convicted of murder, and that they could consider a life
sentence and could extend mercy if the facts warranted it).
44
Lance v. State, 560 S.E.2d 663, 671 (Ga. 2002).
45
Waldrip v. State, 482 S.E.2d 299, 308 (Ga. 1997).
46
BLACK’S LAW DICTIONARY, supra note 35, at 787.
47
O.C.G.A. § 15-12-165 (2005).
48
Callahan v. State, 194 S.E.2d 431, 433 (Ga. 1972); see also McMichen v. State, 458 S.E.2d 833 n.40
(Ga. 1995) (finding that trial court did not abuse its discretion by denying defendant's motion for additional
peremptory strikes in capital case); Frazier v. State, 362 S.E.2d 351, 357 (Ga. 1987) (stating that murder
defendant was not entitled to additional peremptory challenges above 20 granted by statute).
49
Gamble v. State, 357 S.E.2d 792, 793 (Ga. 1987).
50
Batson v. Kentucky, 476 U.S. 79, 89 (1985) (finding that the “Equal Protection Clause forbids the
prosecutor to challenge potential jurors solely on account of their race”); Georgia v. McCollum, 505 U.S.
42, 59 (1992) (holding that a “criminal defendant may not engage in purposeful discrimination on the
ground of race in the exercise of peremptory challenges”).
51
J.E.B. v. Alabama, 511 U.S. 127, 141-43 (1994) (finding that the right of individual jurors to have
nondiscriminatory jury selections procedures extends to both men and women); Shell v. State, 591 S.E.2d
450, 451 (Ga. Ct. App. 2003) (noting that the three-part test for Batson claims applies to challenges based
on gender).
52
Batson, 476 U.S. at 89 (finding that prosecution may not engage in race discrimination); McCollum,
505 U.S. at 59 (finding that defendant may not engage in racial discrimination); Chandler v. State, 467
S.E.2d 562, 563-64 (Ga. 1996) (involving the prosecution opposing strikes based on McCollum and J.E.B.)
53
Batson, 476 U.S. at 89; Gamble, 357 S.E.2d at 793; Chandler, 467 S.E.2d at 563-64.
54
Ford v. State, 423 S.E.2d 245, 246 (Ga. 1992).

226

the challenge.55 The explanation “need not rise to the level justifying exercise of a
challenge for cause,’ but it must be ‘neutral,’ ‘related to the case to be tried,’ and a ‘clear
and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the
challenges.”56 The judge must then assess whether the opposing party has established a
discriminatory intent.
3. Appellate Review of Voir Dire
The judge’s control of the scope of voir dire and his/her determination as to whether a
prospective juror is qualified to serve are both reviewed under an abuse of discretion
standard.57 However, when reviewing a judge’s determination on the party’s motivation
for the peremptory challenge, the reviewing court must use a clearly erroneous
standard.58
B. The Pattern Jury Instructions and Case Law Interpretation of the Instructions
Upon the conclusion of evidence and arguments in the penalty phase of a capital felony
trial, the judge must give the jury “appropriate instructions” at which time it will retire to
determine the defendant’s punishment.59 The Council of Superior Court Judges of
Georgia60 publishes the “Georgia Suggested Pattern Jury Instructions—Criminal Cases”
(“pattern jury instructions”)61 “to assist the judge” with “objectively and clearly
explaining to the jury the issues of fact . . . and the applicable law which governs the
facts” with the caveat that “no suggested charges can cover every situation and the task
will ever belong to the [] judge to tailor the charged material to the case on trial.”62 As a
result, section 5-5-24(b) of the O.C.G.A. permits the state and defense to help the judge
tailor the pattern instructions or design new instructions for a particular case by
requesting in writing that the judge instruct the jury on certain aspects of the law. 63 The
written requests must be submitted to the judge “at the close of the evidence or at such
earlier time during the trial as the court reasonably directs” and copies of the requests
must be given to opposing counsel.64 The judge has discretion to grant or deny any
written requests for specific jury instructions.65

55

Id.; Batson, 476 U.S. at 89.
Gamble, 357 S.E.2d at 795; Shelton v. State, 572 S.E.2d 401, 404 (Ga. 2002).
57
Gissendaner v. State, 532 S.E.2d 677, 686 (Ga. 2000) (citing Barnes v. State, 496 S.E.2d 674 (Ga.
1998)); Greene v. State, 485 S.E.2d 741, 743 (Ga. 1997).
58
Shelton v. State, 572 S.E.2d 401, 404 (Ga. Ct. App. 2002)
59
O.C.G.A. § 17-10-2(c) (2004).
60
The Council of Superior Court Judges of Georgia was established in 1985 to “further the improvement
of the superior courts and the administration of justice.” See O.C.G.A. § 15-6-34(b) (2004).
61
GA. SUGGESTED PATTERN JURY INSTRUCTIONS, VOL. II (CRIMINAL C ASES) p. vii. (3d ed. 2003).
62
Id.
63
O.C.G.A. § 5-5-24(b) (2004).
64
Id.
65
Id.
56

227

The following sections will provide an overview of the current pattern jury instructions.
This overview will be followed by an in-depth description of certain portions of the
pattern jury instructions, combined with a discussion of the interpretation and application
of the jury instructions, including which instructions may be given and which must be
given.
1. The Application of the Pattern Jury Instructions
The offenses of aircraft hijacking,66 treason, 67 murder, 68 rape, 69 armed robbery,70 and
kidnapping for ransom or where the victim is harmed71 statutorily are punishable by
death.

66

The crime of aircraft hijacking is prescribed at section 16-5-44 of the O.C.G.A., which states as
follows:
(a) A person commits the offense of hijacking an aircraft when he (1) by use of force or (2) by
intimidation by the use of threats or coercion places the pilot of an aircraft in fear of immediate serious
bodily injury to himself or to another and causes the diverting of an aircraft from its intended
destination to a destination dictated by such person.
(b) The offense of hijacking is declared to be a continuing offense from the point of beginning, and
jurisdiction to try a person accused of the offense of hijacking shall be in any county of this state over
which the aircraft is operated.
(c) A person convicted of the offense of hijacking an aircraft shall be punished by death or life
imprisonment.
O.C.G.A. § 16-5-44 (2004).
67
The crime of treason is codified at section 16-11-1 of the O.C.G.A., which states as follows:
(a)A person owing allegiance to the state commits the offense of treason when he knowingly
levies war against the state, adheres to her enemies, or gives them aid and comfort. No person shall be
convicted of the offense of treason except on the testimony of two witnesses to the same overt act or
on confession in open court. When the overt act of treason is committed outside this state, the person
charged therewith may be tried in any county in this state.
(b) A person convicted of the offense of treason shall be punished by death or by imprisonment for life
or for not less than 15 years.
O.C.G.A. § 16-11-1 (2004).
68
The crime of murder is codified at section 16-5-1 of the O.C.G.A., which states as follows:
(a) A person commits the offense of murder when he unlawfully and with malice aforethought, either
express or implied, causes the death of another human being.
(b) Express malice is that deliberate intention unlawfully to take the life of another human being which
is manifested by external circumstances capable of proof. Malice shall be implied where no
considerable provocation appears and where all the circumstances of the killing show an abandoned
and malignant heart.
(c) A person also commits the offense of murder when, in the commission of a felony, he causes the
death of another human being irrespective of malice.
(d) A person convicted of the offense of murder shall be punished by death or by imprisonment for
life.
O.C.G.A. § 16-5-1 (2004).

228

Both state and federal case law, however, have prohibited the imposition of the death
penalty for the offenses of armed robbery, rape, and kidnapping for ransom or with
bodily injury where the victim is not killed.72 The only offenses that are, standing alone,

69

Georgia’s rape statute, section 16-6-1 of the O.C.G.A., states as follows:
(a) A person commits the offense of rape when he has carnal knowledge of:
(1) A female forcibly and against her will; or
(2) A female who is less than ten years of age.
Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male
sex organ. The fact that the person allegedly raped is the wife of the defendant shall not be a defense
to a charge of rape.
(b) A person convicted of the offense of rape shall be punished by death, by imprisonment for life
without parole, by imprisonment for life, or by imprisonment for not less than ten nor more than 20
years. Any person convicted under this Code section shall, in addition, be subject to the sentencing
and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
(c) When evidence relating to an allegation of rape is collected in the course of a medical examination
of the person who is the victim of the alleged crime, the law enforcement agency investigating the
alleged crime shall be responsible for the cost of the medical examination to the extent that expense is
incurred for the limited purpose of collecting evidence.

O.C.G.A. § 16-6-1 (2004).
70
Georgia’s armed robbery statute, section 16-8-41of the O.C.G.A., in pertinent part, states as follows:
(a) A person commits the offense of armed robbery when, with intent to commit theft, he or she
takes property of another from the person or the immediate presence of another by use of an
offensive weapon, or any replica, article, or device having the appearance of such weapon. The offense
of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.
(b) A person convicted of the offense of armed robbery shall be punished by death or imprisonment for
life or by imprisonment for not less than ten nor more than 20 years.
O.C.G.A. § 16-8-41 (2004).
71
Georgia’s kidnapping statute, section 16-5-40 of the O.C.G.A., states as follows:
(a) A person commits the offense of kidnapping when he abducts or steals away any person without
lawful authority or warrant and holds such person against his will.
(b) A person convicted of the offense of kidnapping shall be punished by imprisonment for not less
than ten nor more than 20 years, provided that a person convicted of the offense of kidnapping for
ransom shall be punished by life imprisonment or by death and provided, further, that, if the person
kidnapped shall have received bodily injury, the person convicted shall be punished by life
imprisonment or by death. Any person convicted under this Code section shall, in addition, be subject
to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
O.C.G.A. § 16-5-40 (2004).
72
See Coker v. Georgia, 433 U.S. 584, 591 (1977); Eberheart v. Georgia, 433 U.S. 917 (1977); Collins v.
State, 236 S.E.2d 759, 760 (Ga. 1977); Jarrell v. State, 216 S.E.2d 258, 270 (Ga. 1975); Gregg v. State, 210
S.E.2d 659, 667 (Ga. 1974); Floyd v. State, 210 S.E.2d 810, 814 (Ga. 1974); Eberheart v. State, 206 S.E.2d
12, 18 (Ga. 1974); see also Sears v. State, 514 S.E.2d 426, 434 (Ga. 1999) (upholding a sentence of death
for the offense of kidnapping with bodily injury where the victim was killed); Moore v. State, 243 S.E.2d 1,
11 (Ga. 1978) (upholding a sentence of death for the offense of rape where the victim was killed); Stanley

229

punishable by death are aircraft hijacking, treason, and murder. The most recent pattern
jury instructions only contain instructions for death penalty cases involving the offense of
murder.73
The instructions begin with an explanation of the bifurcated nature of a capital trial—
guilt/innocence phase and the penalty phase—and describe the jury’s role during each
phase.74 The instructions designate that the jury must determine the “guilt or innocence
of the [defendant]” during the guilt/innocence phase and, if the jury finds the defendant
guilty of murder, it then must determine, during the penalty phase, whether to sentence
the defendant to death, life imprisonment without parole, or life imprisonment.75 The
instructions direct the jury to “consider [when assessing the defendant’s punishment] all
evidence [including victim impact evidence] received . . . in court (in both stages of [the]
proceeding) . . . and the facts and circumstances, if any in extenuation, mitigation, and
aggravation of punishment.”76 The instructions list all statutory aggravating
circumstances for the offense of murder and indicate that before the jury deliberates, the
judge may provide them with “a written copy of the[] statutory instructions regarding
statutory aggravating circumstances.”77
The instructions provide for the imposition of a sentence of death or life without parole
only if the jury finds beyond a reasonable doubt the existence of one or more aggravating
circumstances.78 The instructions also explain that even if the jury finds one or more
aggravating circumstances, it may still impose a sentence of life imprisonment for any or
no reason.79
The instructions inform the jury that it “may return any one of the three verdicts as to
penalty . . . life imprisonment, life imprisonment without parole, or death.”80 The
instructions require the verdict to be unanimous and in writing, dated and signed by the
jury foreperson and returned and read in open court.81 In order to impose a sentence of
death or life imprisonment without parole, the instructions require the jury to set out in

v. State, 241 S.E.2d 173, 180 (Ga. 1977) (upholding a sentence of death for the offense of kidnapping with
bodily injury where the victim was killed).
73
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.20, at 64 (3d ed.
2003).
74
Id. at 65.
75
GA. SUGGESTED PATTERN JURY INSTRUCTIONS, VOL. II (C RIMINAL C ASES) §§ 2.04.20, 2.04.30, at 6566 (3d ed. 2003).
76
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL CASES ) § 2.04.30, at 65-66 (3d ed.
2003).
77
Id. at 70-71.
78
Id. at 66.
79
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.50, at 72 (3d ed.
2003).
80
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.60, at 73 (3d ed.
2003).
81
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.80, at 75 (3d ed.
2003).

230

writing the aggravating circumstances found beyond a reasonable doubt and then fix the
sentence at either life imprisonment without parole or death.82
2. Mitigating Circumstances
a. Pattern Jury Instructions
The instructions advise the jury that when determining the defendant’s punishment, it
must consider “the facts and circumstances, if any, in extenuation[][and] mitigation . . . of
punishment.”83 The instructions describe “mitigating or extenuating circumstances” as
“[circumstances that] do not constitute a justification or excuse for the offense in question
but that, in fairness and mercy, may be considered as extenuating or reducing the degree
of moral culpability or blame.”84
b. Case Law Interpretation of the Definition and Use of the Terms Mitigation
and Mitigating Circumstances
“Mitigation” is a term of “common usage and meaning;” therefore, judges do not have to
define the term in their instructions.85 Similarly, judges do not have to use the term
“mitigating circumstances” in their instructions as long as a “reasonable juror” would
have understood from the charged instructions “the meaning and function of mitigating
evidence.”86
c. Case Law Interpretation of the Identification and Consideration of
Specific Mitigating Circumstances
Judges are not required to and may reject any requests by the defendant to identify in the
jury instructions specific mitigating circumstances present in the defendant’s case,87
82

GA. SUGGESTED PATTERN JURY INSTRUCTIONS, VOL. II (C RIMINAL C ASES) §§ 2.04.62, 2.04.63, at 7374 (3d ed. 2003).
83
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.30, at 65 (3d ed.
2003).
84
Id. at 66.
85
Smith v State, 290 S.E.2d 43, 45 (Ga. 1982) (overturned on other grounds); Cape v. State, 272 S.E.2d
487, 493 (Ga. 1980); Watkins v. State, 426 S.E.2d 26, 29 (Ga. Ct. App. 1992) (citing Smith, 290 S.E.2d at
45, for the proposition that terms of common usage and meaning, such as “mitigation,” do not need to be
specifically defined in the jury charge).
86
Peek v. Kemp, 784 F.2d 1479, 1494 (11th Cir. 1986); Goodwin v. Balkcom, 684 F.2d 794, 802-03
(Ga. 1982) (implying that reference to “evidence in mitigation” may be sufficient if the instructions
mention the option to impose life imprisonment even though aggravating circumstances are found); Spivey
v. State, 246 S.E.2d 288, 291 (Ga. 1978).
87
See Cape, 272 S.E.2d at 493; Bowen v. State, 260 S.E.2d 855, 857 (Ga. 1979) (finding that the judge
correctly instructed the jury on mitigating circumstances by stating as follows: “consider the evidence as to
mitigating circumstances which the defendant contends exists . . . or any other mitigating circumstances
you find from the evidence”); see also McPherson v. State, 553 S.E.2d 569, 578 (Ga. 2001); Rhode v.
State, 552 S.E.2d 855, 863 (Ga. 2001); Heidler v. State, 537 S.E.2d 44, 56 (Ga. 2000); King v. State, 539
S.E.2d 783, 800 (Ga. 2000); Jenkins v. State, 498 S.E.2d 502, 515 (Ga. 1998).

231

including residual doubt.88 Instead of referring to specific mitigating circumstances,
judges are only required to do the following: (1) instruct the jury to “consider” mitigating
circumstances in general; and (2) inform them that they can impose a sentence of life
imprisonment for any reason or no reason at all.89 Failure to inform the jury that they are
authorized to consider mitigating circumstances90 or that they may impose a sentence of
life imprisonment constitutes a ground for setting aside the defendant’s death sentence.91
d. Case Law Interpretation of the Unanimity of Findings as to Mitigating
Circumstances
In cases in which the jury is charged that “it is not necessary to find any mitigating
circumstances in order to impose a life sentence,” judges are not required to instruct the
jury that its findings as to mitigating circumstances need not be unanimous.92
3. Aggravating Circumstances
a. Pattern Jury Instructions
The instructions direct the jury to consider “the facts and circumstances, if any, in . . .
aggravation of punishment” when determining the defendant’s punishment. 93 The
instructions describe “aggravating circumstances” as “[circumstances that] increase the
guilt or enormity of the offense or add to its injurious consequences.”94 This includes
both statutory and non-statutory aggravators.95
The jury instructions list all statutory aggravating circumstances for the offense of
murder, which differ from the statutory aggravating circumstances enumerated in
O.C.G.A.§ 17-10-30, as § 17-10-30 refers to all capital offenses in Georgia--not just
murder. The statutory aggravating circumstances listed in the instructions are as follows:
1. Where the offense of murder was committed by a person with a prior record of
conviction for a capital felony. In this connection, I charge you that the offense of
(Enter offense) is a capital felony under our law (O.C.G.A.§ 17-1030(b)(1));
88

McPherson, 553 S.E.2d at 578; Rhode, 552 S.E.2d at 863; Heidler, 537 S.E.2d at 56; Jenkins, 498
S.E.2d at 515.
89
McPherson, 553 S.E.2d at 578; Heidler, 537 S.E.2d at 56; King, 539 S.E.2d at 801.
90
Hawes v. State, 240 S.E.2d 833, 839 (Ga. 1977).
91
Id. (citing Fleming v. State, 240 S.E.2d 37, 41 (Ga. 1977)).
92
Wilson v. State, 525 S.E.2d 339, 347 (Ga. 1999); Palmer v. State, 517 S.E.2d 502, 506 (Ga. 1999);
McClain v. State, 477 S.E.2d 814, 824 (Ga. 1996).
93
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.30, at 66 (3d ed.
2003).
94
Id.
95
Thornton v. State, 449 S.E.2d 98, 113 (Ga. 1994) (noting that the jury may consider non-statutory
aggravating circumstances, citing Lee v. State, 365 S.E.2d 99 (Ga. 1988), and Zant v. Stephens, 297 S.E.2d
1 (Ga. 1982)).

232

2. Where the offense of murder was committed while the defendant was engaged in
the commission of another capital felony (or aggravated battery). In this
connection, I charge you that the offense of (Enter offense) is a capital felony
under our law (O.C.G.A.§ 17-10-30(b)(2));
3. Where the offense of murder was committed while the defendant was engaged in
the commission of a burglary or arson in the first degree (O.C.G.A.§ 17-1030(b)(2));
4. Where the defendant, by the act of murder, knowingly created a great risk of
death to more than one person in a public place by means of a weapon or device
which would normally be hazardous to the lives of more than one person (Ga.
Code Ann. § 17-10-30(b)(3));
5. Where the defendant committed the offense of murder for himself/herself, or
another, for the purpose of receiving money or any other thing of monetary value
(O.C.G.A.§ 17-10-30(b)(4));
6. Where the murder is of a judicial officer, former judicial officer, district attorney
or solicitor, or former district attorney or solicitor, during, or because of, the
exercise of official duty (O.C.G.A.§ 17-10-30(b)(5));
7. Where the defendant caused or directed another to commit murder or committed
murder as an employee of another person (O.C.G.A.§ 17-10-30(b)(6));
8. Where the offense of murder was outrageously or wantonly vile, horrible, or
inhuman, in that it involved:
a. Depravity of mind; or
b. Torture to the victim prior to the death of the victim; or
c. Aggravated battery to the victim prior to the death of the victim
(O.C.G.A.§ 17-10-30(b)(7));
9. Where the offense of murder was committed against any:
a. Peace officer;
b. Corrections employee; or
c. Fireman,
while engaged in the performance of official duties (O.C.G.A.§ 17-1030(b)(8));
10. Where the offense of murder was committed by a person:
a. In the lawful custody of a peace officer;
b. In a place of lawful confinement;
c. Who has escaped from:
i. The lawful custody of a peace officer;
ii. A place of lawful confinement
(O.C.G.A.§ 17-10-30(b)(9)); and
11. Where the murder was committed for the purpose of avoiding, interfering with, or
preventing:
a. A lawful arrest;
b. Custody in a place of lawful confinement, of the defendant or another person

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(O.C.G.A.§ 17-10-30(b)(10)). 96
Although the pattern instructions include all statutory aggravating circumstances relevant
to the offense of murder, the judge may charge the jury only on those statutory
aggravators applicable to the case.97 In cases in which the “outrageously or wantonly vile,
horrible, or inhuman” circumstance is applicable, the jury instructions provide definitions
for “aggravated battery,”98 “torture,” 99 and “depravity of the mind.”100
b. Case Law Interpretation of the Aggravating Circumstances
i. Aggravating Circumstance #1: Murder Committed by a Person With a
Prior Record of Conviction for a Capital Felony
The term “capital felonies” includes “felonies which were capital crimes in Georgia at the
time . . . [the] death penalty statute was enacted in 1973, even as to those offenses for
which the death penalty may, as a result of judicial construction, no longer be
imposed.”101 This includes murder, treason, aircraft hijacking, rape, armed robbery, and
kidnapping for ransom or with bodily injury.
In determining whether the defendant has a “prior record of conviction for a capital
felony,” the jury must consider the defendant’s record at the time of sentencing, not at the
time of the crime.102 The age of the conviction is not a ground for excluding its
consideration, but it is a fact that the defense may argue in mitigation.103
96

GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL CASES ) § 2.04.30, at 67-70 (3d ed.
2003).
97
Id.
98
“Aggravated battery occurs when a person maliciously causes bodily harm to another by depriving that
person of a part of body, by rendering a part of the person's body useless, or by seriously disfiguring the
person's body or a body part. In order to find that the offense of murder involved aggravated battery, you
must find that the bodily harm to the victim occurred before death.” Id. at 68.
99
“Torture occurs when a living person is subjected to the unnecessary and wanton infliction of severe
physical or mental pain, agony, or anguish. Besides serious physical abuse, torture includes serious sexual
abuse or the serious psychological abuse of a victim resulting in severe mental anguish to the victim in
anticipation of serious physical harm. You would not be authorized to find that the offense of murder
involved torture simply because the victim suffered pain or briefly anticipated the prospect of death. Nor
would acts committed upon the body of a deceased victim support a finding of torture. In order to find that
the offense of murder involved torture, you must find that the defendant intentionally, unnecessarily, and
wantonly inflicted severe physical or mental pain, agony, or anguish upon a living victim.” Id.
100
“Depravity of mind is a reflection of an utterly corrupt, perverted, or immoral state of mind. In
determining whether the offense of murder in this case involved depravity of mind on the part of the
defendant, you may consider the age and physical characteristics of the victim and you may consider the
actions of the defendant prior to and after the commission of the murder. In order to find that the offense of
murder involved depravity of mind, you must find that the defendant, as the result of utter corruption,
perversion, or immorality, committed aggravated battery or torture upon a living person, or subjected the
body of a deceased victim to mutilation or serious disfigurement or sexual abuse.” Id. at 69.
101
Waters v. State, 283 S.E.2d 238, 251 (Ga. 1981) (referring to (b)(2)).
102
State v. Terry, 360 S.E.2d 588, 589 (Ga. 1987); Stephens v. Hopper, 247 S.E.2d 92, 97 (Ga. 1978).
103
Cook v. State, 340 S.E.2d 843, 854 (Ga. 1986).

234

ii. Aggravating Circumstance #2: Murder Committed While Defendant
Was Engaged in the Commission of Another Capital Felony or
Aggravating Battery
The murder and the “other capital felony” or aggravated battery do not have to occur
simultaneously as long as the offenses occur within a “relatively short period of time in
what can be fairly viewed as one continuous course of criminal conduct”104 or as part of
an “overall [criminal] plan.”105 The “other capital felony” or aggravated battery need not
be completed nor does the defendant have to be charged with or convicted of the
offense.106 The “other capital felony” may be murder or any other statutorily defined
capital felony.107 The murder victim and the victim of the “other capital felony” or
aggravated battery do not have to be the same individual.108
iii. Aggravating Circumstance #3: Murder Committed While Defendant
Was Engaged in the Commission of Burglary or First-degree Arson
A thorough and exhaustive review of the relevant Georgia case law has not revealed a
judicial interpretation of this aggravating circumstance at the time of the release of this
report.
iv. Aggravating Circumstance #4: The Defendant, by the Act of Murder,
Knowingly Created a Great Risk of Death to More Than One Person in
A Public Place by Means of a Weapon or Device That Would
Normally Be Hazardous to the Lives of More Than One Person
The Georgia Supreme Court has interpreted three aspects of this aggravating
circumstance: (1) the meaning of “knowingly,” (2) the meaning of “great risk”, and (3)
the meaning of weapon. The terms “knowingly” and “great risk” are “terms of common
usage and meaning” and, as a result, do not have to be defined in the jury instructions.109
The Court, in Harrison v. State, however, clarified that the term “knowingly” pertains to
the creation of the “great risk of death” not to commission of the act of murder. 110 Lastly,
the Court, in Jones v. State, classified a .32 caliber automatic weapon as the type of
weapon that would normally be hazardous to the lives of more than one person when
used in a public place.111

104

Sallie v. State, 78 S.E.2d 444, 454 (Ga. 2003); Gilreath v. State, 279 S.E.2d 650, 670-71 (Ga. 1981).
Sallie, 578 S.E.2d at 454; Strickland v. State, 275 S.E.2d 29, 40 (Ga. 1981).
106
Amadeo v. State, 255 S.E.2d 718, 721 (Ga. 1979) (citing Moore v. State, 213 S.E.2d 829 (Ga. 1978)).
107
Romine v. State, 305 S.E.2d 93, 99 (Ga. 1983).
108
Sallie, 578 S.E.2d at 454.
109
Philpot v. State, 486 S.E.2d 158, 161 (Ga. 1997).
110
Harrison v. State, 361 S.E.2d 149, 151-53 (Ga. 1987).
111
Jones v. State, 256 S.E.2d 907, 916 (Ga. 1979); see also Chenault v. State, 215 S.E.2d 223, 225 (Ga.
1975) (stating that an undisclosed type of concealed weapon constitutes the type of weapon that is normally
105

235

v. Aggravating Circumstance #5: Defendant Committed Murder for
Himself/Herself or Another for the Purpose of Receiving Money or
Any Other Thing of Monetary Value
This aggravating circumstance refers to the “motive” for the murder.112 This motive must
be for pecuniary gain113 and it must manifest itself prior to the actual killing.114 For
example, in Baxter v. State, the Georgia Supreme Court found that because the defendant
“left [the] motel room [on the night of the murder] . . . in search of a ‘money making
thing’” the evidence was sufficient to uphold a finding of this aggravating
circumstance.115
“Any other thing of monetary value” has been interpreted as being the proceeds of a life
insurance policy on the victim,116 an automobile,117 and a credit card.118
vi. Aggravating Circumstance #6: Murder of a Former or Current Judicial
Officer and/or Other Government Agents
A thorough and exhaustive review of the relevant Georgia case law has not revealed a
judicial interpretation of this aggravating circumstance at the time of the release of this
report.
vii. Aggravating Circumstance #7: Defendant Caused or Directed Another
to Commit Murder or Committed Murder as an Employee of Another
Person
This aggravating circumstance applies to individuals who cause or direct a “follower or
lackey” to commit murder, even if the murder is not for hire.119 It also applies to murders
for hire to both the “hirer and the one hired” (“agent” and “employee”).120 The terms
“agent” and “employee” can be defined by the following “common, everyday meanings:”
“An employee is one who is hired by another and an agent is one who acts for

hazardous to the lives of more than one person, when used in a public place); Jarrell v. State, 216 S.E.2d
258, 269 (Ga. 1975); Phillips v. State, 297 S.E.2d 217, 219 (Ga. 1982).
112
Simpkins v. State, 486 S.E.2d 833, 835 (Ga. 1997).
113
Id.; see also Tarver v. State, 602 S.E.2d 627, 630 (Ga. 2004).
114
Young v. Zant, 506 F. Supp. 274, 280-81 (M.D. Ga. 1980) (overturned on other grounds).
115
Baxter v. State, 331 S.E.2d 561, 572-73 (Ga. 1985); see also Young, 506 F. Supp. at 280-81 (ordering
that the defendant be resentenced, finding that the evidence failed to prove beyond a reasonable doubt that
the defendant intended to rob the victim as the defendant did not contemplate taking the victim’s wallet and
attempting to obtain money until after he killed the victim).
116
Fugitt v. State, 307 S.E.2d 471 (Ga. 1983).
117
Jarrell v. State, 216 S.E.2d 258, 269 (Ga. 1975).
118
Miller v. State, 380 S.E.2d 690, 692 (Ga. 1989).
119
Mize. v. State, 501 S.E.2d 219, 230-31 (Ga. 1998).
120
Castell v. State, 301 S.E.2d 234, 250 (Ga. 1983).

236

another.”121 Motivating another person to kill someone does not create an agentemployee relationship.122 The agent must actually hire the individual as his/her
employee.123
viii. Aggravating Circumstance #8: The Offense of Murder Was
“Outrageously or Wantonly Vile, Horrible, or Inhuman” in That it
Involved Depravity of the Mind, or Torture Prior to the Death of the
Victim, or Aggravated Battery to the Victim Prior to the Death of the
Victim
This aggravating circumstance has been interpreted as having two major components: (1)
the offense of murder was outrageously or wantonly vile, horrible, or inhuman, and (2) it
involved (a) aggravated battery to the victim, OR (b) torture to the victim, OR (c)
depravity of mind of the defendant.124 In order for the jury to find the existence of this
aggravating circumstance, the evidence must satisfy the first major component and at
least one of the sub-parts of the second major component.125
The phrases “outrageously or wantonly vile” and “horrible or inhuman” are phrases of
“ordinary significance” that have been found to have “essentially” the same meaning and
are intended only to distinguish “ordinary murders” (for which the death penalty may not
be imposed) from capital murders (for which the death penalty may be imposed).126
Because the phrases are of “ordinary significance,” judges are not required to provide
definitions.127
An aggravated battery, however, is not a term of ordinary meaning and as a result, must
be explained as follows: “[aggravated battery may be found when the defendant]
maliciously causes bodily harm to another individual by depriving him[/her] of a member
of his[/her] body, or by rendering a member of his[/her] body useless, or by seriously
disfiguring his[/her] body or a member thereof.”128 Torture—a term of common
meaning—may be found where the defendant “intentionally, unnecessarily, and
wantonly” inflicts upon the victim serious physical abuse, sexual abuse, or psychological
abuse “where it is shown to have resulted in severe mental anguish to the victim in

121

Id.
Whittington v. State, 313 S.E.2d 73, 81-83 (Ga. 1984).
123
Id.
124
Patrick v. State, 274 S.E.2d 570, 571-72 (Ga. 1981) (citing Hance v. State, 268 S.E.2d 339 (Ga.
1980)).
125
Id. at 572. A jury finding beyond a reasonable doubt that the murder was merely “horrible or in human,
in that it involved torture” of the victim, is not tantamount to a jury properly finding the murder was
“outrageously or wantonly vile, horrible, or inhuman in that it involved torture.” See Perkinson v. State,
610 S.E.2d 533, 541 (Ga. 2005).
126
Hance, 268 S.E.2d at 339 (citing Godfrey v. Georgia, 446 U.S. 420 (1980)); Tarver v. State, 602
S.E.2d 627, 630 (Ga. 2004); Patrick, 274 S.E.2d at 571-72.
127
Gilreath v. State, 279 S.E.2d 650, 670 (Ga. 1981).
128
Hance, 268 S.E.2d at 339; West v. State, 313 S.E.2d 67, 69-72 (Ga. 1984); Gilreath, 279 S.E.2d at
670.
122

237

anticipation of death.”129 Only facts occurring before the victim’s death are relevant to a
finding of aggravated battery and torture.130 A victim who was mutilated after death or
dies instantaneously has not been subjected to aggravated battery or torture.131
“Depravity of mind” is “an utterly corrupt, perverted, or immoral state of mind.”132 Such
definition, however, need not be included in the jury instructions because it is “common”
and is subject to a “common understanding.”133 In determining depravity of mind on the
part of the defendant, the jury may consider the age and physical characteristics of the
victim and any actions committed by the defendant against the victim both before and
after the victim’s death.134 The following acts committed against the victim may be
found to show depravity of mind: (1) mutilation or serious disfigurement after death;135
(2) sexual abuse after death; 136 (3) serious psychological abuse before death;137 (4)
aggravated battery before death; and (5) torture before death.138
ix. Aggravating Circumstance #9: Murder of a Police Officer or
Corrections Employee or a Firefighter
A thorough and exhaustive review of the relevant Georgia case law has not revealed a
judicial interpretation of this aggravating circumstance at the time of the release of this
report.

129

Hance, 268 S.E.2d at 339; High v. State, 276 S.E.2d 5, 13-14 (Ga. 1981); Whittington v. State, 313
S.E.2d 73, 81-83 (Ga. 1984); Justus v. State, 276 S.E.2d 242, 245 (Ga. 1981) (stating that “[s]erious sexual
abuse may be found to constitute serious physical abuse”); Thomas v. State, 275 S.E.2d 318, 319 (Ga.
1981).
130
Patrick, 274 S.E.2d at 571-72 (citing Hance, 268 S.E.2d at 339).
131
Id. (vacating the defendant’s death sentence by finding that the evidence failed to show beyond a
reasonable doubt that the aggravated battery occurred prior to death; the court stated as follows: “A victim
who dies instantaneously from the first [of three] blow[s] [to the scalp area of the head] cannot be subjected
to an aggravated battery.”); Cervi v. State, 282 S.E.2d 629, 636 (Ga. 1981) (torture); Hance, 268 S.E.2d at
339.
132
Tarver v. State, 602 S.E.2d 627, 630 (Ga. 2004); Whittington, 313 S.E.2d at 81-83; West, 313 S.E.2d at
69-72.
133
West, 313 S.E.2d at 69-72.
134
Id.; Brown v. State, 326 S.E.2d 735, 736 (Ga. 1985).
135
Fair v. State, 268 S.E.2d 316, 325 (Ga. 1980); Hance, 268 S.E.2d at 339.
136
Hance, 268 S.E.2d at 339; Thomas v. State, 275 S.E.2d 318, 319 (Ga. 1981); Cape v. State, 272 S.E.2d
487, 493 (Ga. 1980); Justus v. State, 276 S.E.2d 242, 245 (Ga. 1981).
137
Whittington, 313 S.E.2d at 81-83 (citing Phillips v. State, 297 S.E.2d 218, 221 (Ga. 1982)); High v.
State, 276 S.E.2d 5, 13-14 (Ga. 1981); Brown, 326 S.E.2d at 736.
138
Tarver v. State, 602 S.E.2d 627, 630 (Ga. 2004); Thomas, 275 S.E.2d at 319. However, “mere
apprehension of death, immediately before the fatal wounds are inflicted by the defendant, does not
constitute the psychological abuse sufficient to show depravity of mind.” Riley v. State, 604 S.E.2d 488,
499 (Ga. 2004).

238

x. Aggravating Circumstance #10: Murder While in Custody or After
Escape from Lawful Custody
A thorough and exhaustive review of the relevant Georgia case law has not revealed a
judicial interpretation of this aggravating circumstance at the time of the release of this
report.
xi. Aggravating Circumstance #11: Murder Committed for the Purpose of
Avoiding, Interfering With, or Preventing a Lawful Arrest or Lawful
Detainment
A thorough and exhaustive review of the relevant Georgia case law has not revealed a
judicial interpretation of this aggravating circumstance at the time of the release of this
report.
c. Case Law Interpretation of Future Dangerousness as a Non-Statutory
Aggravating Circumstance
Both the state and defense may present arguments on the issue of the defendant’s future
dangerousness during the sentencing phase of a capital trial.139 A defendant’s future
dangerousness may be addressed by referencing the defendant’s “past criminal conduct,
his age, and the circumstances surrounding the crime for which he is being sentenced.”140
Where the state makes an issue of the defendant’s future dangerousness during the
sentencing phase and state law prohibits the defendant’s release on parole, the jury must
be informed that the defendant is ineligible for parole.141
d. Case Law Interpretation of the Burden of Proof and Unanimity of Finding
as to Statutory and Non-Statutory Aggravating Circumstances
The jury instructions require the jury to find “beyond a reasonable doubt” at least one or
more “statutory aggravating circumstances” in order to impose a sentence of death or life
imprisonment without parole.142
The Georgia Supreme Court has found that judges are required to charge the jury on the
burden of proof applicable to statutory aggravating circumstance, but are not required to

139

Presnell v. State, 551 S.E.2d 723, 733 (Ga. 2001); Jones v. State, 539 S.E.2d 154, 159 (Ga. 2000);
Johnson v. State, 519 S.E.2d 221, 231 (Ga. 1999); Pye v. State, 505 S.E.2d 4, 13-14 (Ga.1998); Hammond
v. State, 452 S.E.2d 745, 752 (Ga. 1995) (citing Vance v. State, 416 S.E.2d 516 (1992)); Hicks v. State, 352
S.E.2d 762, 777 (Ga. 1987).
140
Walker v. State, 327 S.E.2d 475, 481 (Ga. 1985).
141
Philpot v. State, 486 S.E.2d 158, 161 (Ga. 1997) (citing Simmons v. South Carolina, 512 U.S. 154
(1994)).
142
GA. S UGGESTED P ATTERN JURY I NSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.30, p. 66 (3d ed.
2003).

239

provide such information for non-statutory aggravating circumstances.143 Similarly,
judges are not required to instruct the jury that its finding as to an aggravating
circumstance must be unanimous as long as the judge instructs the jury that its sentencing
verdict must be unanimous.144
e. Case Law Interpretation of Whether Aggravating Circumstances Must Be
Set Forth in Writing
The jury instructions require the jury to “set out in writing the aggravating circumstance
that you may find to exist beyond a reasonable doubt.”145
The Georgia Supreme Court has found that the jury’s written finding as to aggravating
circumstances must show “the jury’s intent ‘with sufficient clarity that [the] court can
rationally review the jury’s findings.’”146 A verdict that “completely omits an essential
element of a statutory aggravating circumstance” would not suffice as a finding of that
statutory aggravating circumstance.147
4. Availability and Definitions of the Sentencing Options
a. Pattern Jury Instructions
The pattern jury instructions not only explain the specific circumstances under which the
jury may impose any of the three sentencing options—death, life imprisonment without
parole, and life imprisonment—the instructions also define “life imprisonment without
parole” and “life imprisonment.”
The instructions state, “a sentence of death or life imprisonment without parole shall not
be imposed unless the jury first finds beyond a reasonable doubt and designates in its
verdict in writing at least one or more statutory aggravating circumstances.”148 The
instructions also explain that life imprisonment may be imposed under the following
circumstances:
Whether or not you find any extenuating or mitigating facts or circumstances, you
are authorized to fix the penalty in this case at life imprisonment.

143

Wilson v. State, 525 S.E.2d 339, 347 (Ga. 1999) (citing Cromartie v. State, 514 S.E.2d 205, 214-15
(Ga. 1999); Speed v. State, 512 S.E.2d 896, 908 (Ga. 1999); Whatley v. State, 509 S.E.2d 45, 51 (Ga.
1998); McClain v. State, 477 S.E.2d 814, 824 (Ga. 1996); Ward v. State, 417 S.E.2d 130, 137 (Ga. 1992);
Ross v. State, 326 S.E.2d 194, 203-04 (Ga. 1985).
144
Sallie v. State, 578 S.E.2d 444, 452 (Ga. 2003); Lance v. State, 560 S.E.2d 663, 678 (Ga. 2002).
145
GA. SUGGESTED PATTERN JURY INSTRUCTIONS, VOL. II (C RIMINAL C ASES) §§ 2.04.62, 2.04.63, at 7374 (3d ed. 2003).
146
Page v. State, 345 S.E.2d 600, 603 (Ga. 1986).
147
Black v. State, 410 S.E.2d 740, 745-46 (Ga. 1991).
148
GA. SUGGESTED P ATTERN JURY I NSTRUCTIONS VOL. II (C RIMINAL C ASES ) § 2.04.30, at 66 (3d ed.
2003).

240

....
If you should find from the evidence in this case, beyond a reasonable doubt, the
existence of one or more statutory aggravating circumstances as given you in
charge by the court, you would also be authorized to sentence the defendant to life
imprisonment.
You may fix the penalty at life imprisonment . . . for any reason satisfactory to
you or without any reason.149
The instructions provide the following meanings for “life imprisonment” and “life
imprisonment without parole”:
Life imprisonment means the defendant will be sentenced to incarceration for the
remainder of his/her natural life; however s/he will be eligible for parole during
the term of that sentence;150 and
Life imprisonment without parole means the defendant shall be incarcerated for
the remainder of his/her natural life and shall not be eligible for parole.151
b. Case Law Interpretation of the Availability of Life Imprisonment When
Aggravating Circumstances Are Found
The Georgia Supreme Court has found that judges are required to instruct the jury clearly
and explicitly that they could recommend a sentence of life imprisonment even if they
found the existence of at least one aggravating circumstance.152 Failure to do so
constitutes a ground for vacating a defendant’s death sentence.153
c. Case Law Interpretation of the Meaning of Life Imprisonment Without
Parole (“Life Without Parole”) and Life Imprisonment

149

GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.50, at 72 (3d ed.
2003).
150
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.61, at 73 (3d ed.
2003).
151
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.62, at 73 (3d ed.
2003).
152
See Thornton v. State, 449 S.E.2d 98, 114 (Ga. 1994); Romine v. State, 305 S.E.2d 93, 100 (Ga. 1983);
Spraggins v. State, 243 S.E.2d 20, 23 (Ga. 1978); Fleming v. State, 240 S.E.2d 37, 41 (Ga. 1977); Hawes v.
State, 240 S.E.2d 833, 840 (Ga. 1977).
153
Fleming, 240 S.E.2d at 41; Hawes, 240 S.E.2d at 840; Spraggins, 243 S.E.2d at 23; see also
Stynchcombe v. Floyd, 311 S.E.2d 828, 830 (Ga. 1984) (finding that the charged instruction failed to
include “language explaining to the jury that they could recommend a life sentence even if they found the
existence of a statutory aggravating circumstance;” however, the court found that the defendant was
procedurally barred from raising this issue because he was given the opportunity to object to the instruction
but failed to do so).

241

In 1993, the Georgia Legislature adopted section 17-10-31.1(d) of the O.C.G.A.,
providing for the sentencing option of “life without parole” as an alternate to the death
penalty and allowing the state and defense to “present argument[s] and the [] judge [to]
instruct the jury” as to the meaning of “life without parole” and “life imprisonment”
during the sentencing phase of a capital trial. 154 The Georgia Supreme Court has since
interpreted section 17-10-31.1(d) to mean that during the sentencing phase of a capital
trial: (1) the state and defense have the option of presenting arguments on the meaning of
and appropriateness of155 “life without parole” and “life imprisonment” and (2) the judge
is mandated to instruct the jury on the definitions of “life without parole” and “life
imprisonment.”156 The Court has stated on numerous occasions that judges “must,”157
“are obligated to,” 158 and “are required to”159 instruct the jury on the meaning of and
difference between life without parole and life imprisonment during the sentencing phase
of a capital trial.
Section 17-10-31.1(d), however, applies only to death penalty cases160 where the offenses
were committed after its effective date (May 1, 1993) or to defendants who elected, in
writing, to be sentenced under the statute.161 Therefore, in death penalty cases heard after
the statute’s effective date where the offenses were committed prior to the statute’s
effective date and the defendants did not opt to be sentenced under the new statute, laws
in existence prior to the promulgation of section 17-10-31.1(d) apply. 162

154

O.C.G.A. § 17-10-31.1(d) (2004) (providing definitions for “life without parole” and “life
imprisonment”); see also GA. S UGGESTED P ATTERN JURY INSTRUCTION, VOL. II (CRIMINAL CASES ) §§
2.04.61, 2.04.62, at 73 (3d ed. 2003).
155
Lamar v. State, 598 S.E.2d 488, 494 (Ga. 2004).
156
See Lamar, 598 S.E.2d at 494; Zellmer v. State, 534 S.E. 2d 802, 803 (Ga. 2000); Turner v. State, 486
S.E.2d 839, 842 (Ga. 1997); see also McClain v. State, 477 S.E.2d 814, 824 (Ga. 1996) (stating that the
state and defense “may present argument on the meaning of life without parole, and the trial court may
charge the jury on life without parole”).
157
Lamar, 598 S.E.2d at 494 (citing O.C.G.A. § 17-10-31.1(d), and referencing Zellmer, 534 S.E. 2d at
803).
158
Zellmer, 534 S.E.2d at 803.
159
Turner, 486 S.E.2d at 842.
160
O.C.G.A. § 17-10-31.1 (noting that this section applies only to death penalty cases, just as “life without
parole” is a sentencing option only as an alternate to the death penalty. In all cases where § 17-10-31.1 is
inapplicable, the judge is not required to instruct the jury as to the meaning of “life imprisonment” and the
issue of parole is inadmissible.); Burgess v. State, 450 S.E.2d 680, 693-94 (Ga. 1994) (stating that Simmons
v. South Carolina, 512 U.S. 154 (1994), “stands for the relatively narrow proposition that, where the State
makes an issue of the defendant’s future dangerousness during the sentencing phase of a capital trial and
state law prohibits the defendant's release on parole, the jury must be informed that the defendant is
ineligible for parole”).
161
1993 Ga. Laws 569, § 7. A defendant who committed his/her offense before May 1, 1993, may elect
to be sentenced under section 17-10-31.1(d) of the O.C.G.A provided that: “(1) jeopardy for the offense
charged has not attached and the state has filed with the trial court notice of its intention to seek the death
penalty or (2) the defendant has been sentenced to death but the conviction or sentence has been reversed
on appeal and the state is not barred from seeking the death penalty after remand.” See id.
162
Id.

242

Prior to the adoption of O.C.G.A.§ 17-10-31.1(d), judges were not permitted to instruct
juries and the state and defense were prohibited from presenting arguments on the
meaning of life imprisonment and the possibility of parole.163 For example, the Georgia
Supreme Court upheld judges’ refusals to “answer the jury’s request for a definition of
‘life imprisonment’ in the terms of years in prison”164 and found that judges should
respond to all requests for instructions on the possibility of parole by stating “in no
uncertain terms that such matters are not proper for the jury's consideration.”165
d. Case Law Interpretation of the Admissibility of Information Related to
Georgia’s Parole Practices
The United States Supreme Court and the Georgia Supreme Court have found that judges
are required to instruct a capital jury about the state’s parole practices if: (1) the state
raises the issue of the defendant’s future dangerousness; and (2) Georgia law prohibits
the defendant’s release on parole.166 In capital cases where these two requirements are
not present, judges may refuse to instruct the jury and allow the defendant to admit
evidence regarding the specific minimum amount of time the defendant would have to
serve before becoming eligible for parole.167 For example, in Jackson v. State, the
Georgia Supreme Court upheld the lower court’s order sustaining the state’s objection to
expert testimony “as to the length of time [the defendant] would spend in prison before
he would be eligible for parole (if he were to receive a simple life sentence).”168

163

See O.C.G.A. § 17-8-76 (2004); Cohen v. State, 361 S.E.2d 373, 375 (Ga. 1987); Quick v. State, 353
S.E.2d 497, 502 (Ga. 1987); Westbrook v. State, 353 S.E.2d 504, 506 (Ga. 1987). But see Jenkins v. State,
498 S.E.2d 502, 515 (Ga. 1998) (finding O.C.G.A. § 17-10-31.1 to be the “most recent legislative
expression,” prevailing over O.C.G.A. § 17-8-76 and, therefore, upholding the court’s ruling allowing
counsel to address “the possibility of parole” during closing arguments in the sentencing phase); McClain
v. State, 477 S.E.2d 814, 824 (Ga.1996) (stating that O.C.G.A. § 17-8-76(a), which prohibits argument on
the issue of parole and provided the basis for the holding in Quick, 353 S.E.2d at 502, has been overruled
by O.C.G.A. § 17-10-31.1, to the extent that counsel for the state and the accused may present argument on
the meaning of life without parole, and the trial court may charge the jury on life without parole).
164
Cohen, 361 S.E.2d at 375.
165
Quick, 353 S.E.2d at 502.
166
Philpot v. State, 486 S.E.2d 158, 161 (Ga. 1997); Burgess v. State, 450 S.E.2d 680, 693-94 (Ga. 1994).
167
Philpot, 486 S.E.2d at 161; Lance v. State, 560 S.E.2d 663, 678 (Ga. 2002) (upholding judge’s refusal
to “allow evidence regarding the possible timing of Lance's parole eligibility if the jury were to impose a
sentence of life imprisonment rather than a sentence of life imprisonment without parole or a sentence of
death”); Jackson v. State, 512 S.E.2d 241, 246 (Ga. 1999) (upholding the judge’s refusal to provide the
following charge: “the fact that a defendant may be eligible for parole during the term of his [life] sentence
does not mean that he will be paroled”); Henry v. State, 462 S.E.2d 737, 746 (Ga. 1995) (stating it was not
error for the trial court to refuse to instruct the jury that “consecutive life sentences require that a defendant
serve a specified minimum [amount] of time for each consecutive count”).
168
Jackson, 512 S.E.2d at 246.

243

5. Victim Impact Evidence
a. Pattern Jury Instructions
The pattern jury instructions indicate that the prosecution may introduce “victim impact
evidence” during the sentencing phase of a capital felony trial.169 The instructions
explain the purpose and utility of this evidence as follows:
This evidence is simply another method of informing you about the alleged harm
caused by the crime in question. To the extent that you find that this evidence
reflects on the defendant’s culpability, you may consider it, but you may not use
it as a substitute for proof beyond a reasonable doubt of the existence of a statutory
aggravating circumstance.170
b. Case Law Interpretation of the Use and Purpose of Victim Impact
Evidence
In 1993, the Georgia Legislature adopted section 17-10-1.2(a)(1) of the O.C.G.A.
providing that “in all cases in which the death penalty may be imposed . . . the court may
allow evidence from the family of the victim, or such other witness having personal
knowledge of the victim’s personal characteristics and the emotional impact of the crime
on the victim, the victim’s family, or the community.”171 One year later, the Georgia
Supreme Court, in Livingston v. State, assessed the constitutionality of section 17-101.2(a)(1).172 The Court upheld section 17-10-1.2(a)(1) and the admissibility of “evidence
related to the impact of the offense upon the victim’s family or community,” reasoning
that the statute contains sufficient safeguards to protect against the “imposition of the
death penalty due to ‘passion, prejudice, or any other arbitrary factor.’”173 Despite this
finding, the Livingston court recommended the adoption of an additional safeguard
involving the timing of rulings on the admissibility of evidence.174 The Court specifically
held that “the trial court must hear and rule prior to trial on the admissibility of victim
impact evidence sought to be offered.”175
Following Livingston, the Court noted, in Turner v. State, that district attorney offices in
many judicial circuits had adopted some form of the following victim impact evidence
procedure:
 state provides the victim impact witnesses with questions;

169

GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.40, at 71 (3d ed.
2003).
170
Id.
171
See O.C.G.A. § 17-10-1.2(a)(1) (2004).
172
Livingston v. State, 444 S.E.2d 748, 751-52 (Ga. 1994).
173
Id.
174
Id.
175
Id.

244

 witnesses prepare a written statement in response to the questions posed by
the state;
 state provides the statements to the defense;
 court holds a hearing on the statements providing the defense with an
opportunity to object to the content of the statements; and
 during the trial, the state asks each witness its questions and the witnesses
respond by reading their statements.176
Three years after the decision in Livingston, the Court recommended the imposition of
two additional safeguards to ensure that the use of victim impact evidence does not result
in the arbitrary imposition of the death penalty.177 In Turner v. State, the Court concluded
that the state rather that the court should question the victim impact witnesses to “avoid
the possibility that the jury might give greater weight to the “court’s witnesses” and
recommended that the trial court instruct the jury on the purpose of victim impact
evidence as included in the aforementioned pattern jury instructions on victim impact
evidence.178
c. Case Law Interpretation of the Admissibility of Victim Impact Evidence
Victim impact evidence is only admissible “subsequent to an adjudication of guilt.”179
The admission of victim impact evidence is within the “sole discretion” of the court.180
However, evidence that is inflammatory or unduly prejudicial, particularly racially or
religiously, may never be admitted.181 Evidence focusing on the “victim’s social
status”182 or providing “a detailed narration of . . . emotional and economic sufferings of
the victim’s family” also is inadmissible.183
7. Instructions to Jury About Awesome Power to Decide Between Life and
Death
The pattern jury instructions state “[w]hatever penalty is to be imposed within the limits
of the law as I have instructed you is a matter solely for you, the jury, to determine.”184

176

Turner v. State, 486 S.E.2d 839, 842 n.5 (Ga. 1997); Simpkins v. State, 486 S.E.2d 833, 837 (Ga.
1997) (noting that “by providing a copy of the statement to the defense and the court before the sentencing
phase, the trial court may ensure that the statement does not contain highly inflammatory statements”)
177
Turner, 486 S.E.2d at 842.
178
Id.
179
See O.C.G.A. § 17-10-1.2(a)(1) (2004); see also Lucas v. State, 555 S.E.2d 440, 445 (Ga. 2001).
180
O.C.G.A. § 17-10-1.2(a)(1) (2004); Cronan v. State, 511 S.E.2d 899, 903 (Ga. Ct. App. 1999).
181
O.C.G.A. § 17-10-1.2(a)(1) (2004); Turner, 486 S.E.2d at 842 (noting that some references to religion
are not inflammatory).
182
Livingston v. State, 444 S.E.2d 748, 752 (Ga. 1994) (citing Ingram v. State, 313 S.E.2d 801 (Ga.
1984)).
183
Turner, 486 S.E.2d at 842.
184
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.70, at 74 (3d ed.
2003).

245

8. Instructions After Jury Deliberations Have Begun
a. Pattern Jury Instructions
The United States Supreme Court, in Allen v. United States,185 authorized judges to
provide additional instructions to jurors after judges have rendered the main charge to the
jury and jury deliberations have begun.186 The Court upheld for that purpose the
following instruction, which is known as the Allen charge:
in substance, that in a large proportion of cases absolute certainty could
not be expected; that although the verdict must be the verdict of each
individual juror, and not a mere acquiescence in the conclusion of his
fellows, yet they should examine the question submitted with candor and
with a proper regard and deference to the opinions of each other; that it
was their duty to decide the case if they could conscientiously do so; that
they should listen, with a disposition to be convinced, to each other's
arguments; that, if much the larger number were for conviction, a
dissenting juror should consider whether his doubt was a reasonable one
which made no impression upon the minds of so many men, equally
honest, equally intelligent with himself. If, upon the other hand, the
majority was for acquittal, the minority ought to ask themselves whether
they might not reasonably doubt the correctness of a judgment which was
not concurred in by the majority.187
The pattern jury instructions contain a “modified Allen charge” that may be used in all
death penalty cases.188 The instructions provide that if a jury has been deliberating on the
issue of guilt/innocence for a considerable amount of time, the judge may provide the
jury with the following jury instruction:
You have now been deliberating upon this case for a considerable period
of time, and the court deems it proper to advise you further in regard to the
desirability of agreement, if possible. The case has been exhaustively and
carefully tried by both sides and has been submitted to you for decision
185

Allen v. United States, 164 U.S. 492, 501 (1896).
Id.
187
Id.; see also Romine v. State, 350 S.E.2d 446, 451-52 (Ga. 1986) (providing the text of the original
Allen charge). The use of the Allen charge has been upheld by the Georgia Supreme Court in the following
cases: Anderson v. State, 276 S.E.2d 603, 606 (Ga. 1981); Ratcliff v. Ratcliff, 134 S.E.2d 605, 608 (Ga.
1964); Romine, 350 S.E.2d at 451-52; Wright v. State, 553 S.E.2d 787, 789 (Ga. 2001); Mayfield v. State,
578 S.E.2d 438, 440-42 (Ga. 2003).
188
McKee v. State, 591 S.E.2d 814, 817 (Ga. 2004) (noting that the jury instruction given in the case were
a “modified Allen charge”); Mayfield, 578 S.E.2d at 440-42; Romine, 350 S.E.2d at 451-52 (noting “it is
somewhat imprecise to refer to a single Allen charge. Decades of judicial interpretation have produced a
variety of permutations . . . of the original wording . . . .”); Smith v. State, 370 S.E.2d 185, 188 (Ga. Ct.
App. 1988) (noting that the Allen charge given in the case was taken verbatim from the pattern jury
instructions).
186

246

and verdict, if possible, and not for disagreement. It is the law that a
unanimous verdict is required, and while this verdict must be the
conclusion of each juror, and not a mere acquiescence of the jurors in
order to reach an agreement, it is still necessary for all of the jurors to
examine the issues and questions submitted to them with candor and
fairness, and with a proper regard for, and deference to, the opinion of
each other. A proper regard for the judgment of others will greatly aid us
in forming our own judgment.
This case must be decided by some jury selected in the same manner this
jury was selected, and there is no reason to think a jury better qualified
than you would ever be chosen. Each juror should listen to the arguments
of other jurors with a disposition to be convinced by them. If the members
of the jury differ in their view of the evidence, the difference of opinion
should cause them all to scrutinize the evidence more closely and to
reexamine the grounds of their opinion. Your duty is to decide the issues
which have been submitted to you if you can conscientiously do so. In
conferring, you should lay aside all mere pride of opinion and should bear
in mind that the jury room is no place for taking up and maintaining, in a
spirit of controversy, either side of a cause. You should ever bear in mind
that as jurors, you should not be advocates for either side. The aim to keep
in view is the truth as it appears from the evidence, examined in the light
of the instructions of the court. You may again retire to your room for a
reasonable time and examine your differences in a spirit of fairness and
candor and try to arrive at a verdict.189
Similarly, if a jury has been deliberating on the defendant’s sentence for a considerable
amount of time, the judge may provide the jury with this instruction sans the portion of
the instruction that states as follows: “This case must be decided by some jury selected in
the same manner this jury was selected, and there is no reason to think a jury better
qualified than you would ever be chosen.”190 This portion of the instruction was found
by the Georgia Supreme Court to be contrary to the law applicable to death penalty cases,
as it implied that if the jury could not reach a verdict as to the defendant’s sentence, a
new jury would be impaneled for that specific purpose. 191 Instead, section 17-10-31.1(c)
of the O.C.G.A. provides that if the jury is unable to reach a unanimous verdict as to
sentence but unanimously finds the existence of one statutory aggravating circumstance,
the judge must dismiss the jury and impose a sentence of either life imprisonment or life
imprisonment without parole—not impanel a new jury on the issue of the defendant’s
sentence.192

189

GA. SUGGESTED PATTERN JURY INSTRUCTIONS, VOL. II (CRIMINAL C ASES) § 602.80 (3d ed. 2003).
Id.
191
Legare v. State, 302 S.E.2d 351, 353-54 (Ga. 1983).
192
O.C.G.A. § 17-10-31.1(c) (2004); Legare, 302 S.E.2d at 353-54 (noting that the statute at issue in
Legare was section 17-10-31 of the O.C.G.A., which today is codified at section 17-10-31.1).
190

247

b. Case Law Interpretation of the Modified Allen Charge and the Permissible
Instructions after the Jury Has Been Deliberating for an Extended Period
of Time
The Georgia Supreme Court has upheld on numerous occasions judges’ instructions that
mirror the aforementioned pattern jury instructions (“modified Allen charge”)193 and
permutations thereof.194 Throughout the years, the Georgia Supreme Court has approved
the practice of judges admonishing the jury on the importance of agreeing on a verdict
and urging them to agree upon a verdict that is consistent with their consciences.195
When urging the jury to agree upon a verdict, the judge may inform the jury that
“mistrials are serious matters and in many ways defeat justice” and may cite “the time
and expense involved in the trial and the time and expense involved in a new trial” as
reasons for agreeing upon a verdict.196
The judge may not, however, suggest the propriety of any of the verdicts or unduly urge,
coerce, or influence the jury into agreeing upon a verdict.197 For example, the judge’s
instructions may not “coerce or influence individual jurors to surrender conscientious
convictions and to accept the opinions of the majority solely in order to reach a
verdict,”198 nor may the instructions absolutely require the jury to reach a verdict by
indicating that the jurors would “just have to stay in there until [they reach a verdict].”199
c. Case Law Interpretation of the Appropriate Response to Jury Questions
Regarding Non-Unanimous Verdicts
The jury instructions provide the following as to unanimity of the verdict: “Whatever
your verdict is, it must be unanimous, that is, agreed by all”200 and “[y] our verdict as to
penalty must be unanimous.”201 The Georgia Supreme Court has found that judges must
instruct the jury that its verdict must be unanimous, but that they do not have to inform

193

See Mayfield, 578 S.E.2d at 440-42; Spaulding v. State, 207 S.E.2d 43, 45-46 (Ga. 1974); Ratcliff v.
Ratcliff, 134 S.E.2d 605, 606-08 (Ga. 1964) (finding that although the instructions urge the jurors to agree
upon a verdict, it did not encourage the jurors to abandon their conscientious convictions).
194
See Romine v. State, 350 S.E.2d 446, 452 (Ga. 1986); Anderson v. State, 276 S.E.2d 603, 606 (Ga.
1981); Yancy v. State, 160 S.E. 867, 870 (Ga. 1931).
195
Yancy, 160 S.E. at 870; Hyde v. State, 26 S.E.2d 744, 755 (Ga. 1943); see also Allen v. United States,
164 U.S. 492, 501 (1896); Spaulding, 207 S.E.2d at 45.
196
Yancy, 160 S.E. at 870.
197
Id.; Hyde, 26 S.E.2d at 755; Ratcliff, 134 S.E.2d at 607-08.
198
Ratcliff, 134 S.E.2d at 607-08.
199
Sanders v. State, 290 S.E.2d 516, 517 (Ga. 1982).
200
GA. SUGGESTED PATTERN JURY INSTRUCTIONS, VOL. II (CRIMINAL C ASES) § 100.85 (3d ed. 2003).
201
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.80, at 75 (3d ed.
2003).

248

the jury of the consequences of its inability to unanimously agree upon a verdict.202 If the
jury presents the judge with a question about the unanimity of the verdict, such as “what
happens if we do not come up with a unanimous verdict,” the judge may respond by
indicating that s/he cannot answer that question, may answer the question by explaining
the consequences of their inability to reach a verdict, or may encourage the jury to
continue deliberating.203
9. Form of Instructions
a. Pattern Jury Instructions
The instructions indicate that before the jury deliberates, the judge may provide them
with “a written copy of the[] statutory instructions regarding statutory aggravating
circumstances.”204 Prior to distributing the copy, the judge must explain to the jury the
purpose of the copy by stating as follows:
[it is] to be used by you during your deliberations. I caution and instruct
you, however, that such written instructions are not evidence and are not
to be considered by you as evidence in this case. They are merely and
solely for the purpose of aiding you in remembering these statutory
instructions that the court has given you in charge and are sent out with
you for that purpose alone and no other.205
b. Case Law Interpretation of the Appropriate Form of the Instructions
The Eleventh Circuit and various Georgia state courts have found that the distribution of
a copy of the written court instructions during the guilt/innocence phase of a death
penalty trial is “beneficial,”206 but solely within the discretion of the court.207 However,

202

See Cargill v. State, 340 S.E.2d 891, 918 (Ga. 1986); Romine v. State, 350 S.E.2d 446, 452 (Ga. 1986);
see also Heidler v. State, 537 S.E.2d 44, 56 (Ga. 2000) (finding that “the trial court was not required to
instruct the jury on the consequences of a deadlock or to give the jury that option as a possible verdict”).
203
Cromartie v. State, 514 S.E.2d 205, 214-15 (Ga. 1999); Byrd v. State, 420 S.E.2d 748, 750 (Ga.1992).
204
GA. SUGGESTED P ATTERN JURY INSTRUCTION , VOL. II (CRIMINAL C ASES) § 2.04.30, at 70-71 (3d ed.
2003).
205
Id.
206
See Anderson v. State, 413 S.E.2d 732, 733-34 (Ga. 1992) (finding that although the distribution of
written instructions to the jury may have been “an irregular [and prohibited] practice in the past,” such
practice should no longer be prohibited, as it is clearly beneficial. In its decision, the court relied on
Llewellyn v. State, 243 S.E.2d 853 (Ga. 1973), which cited a case from the United States District Court
stating that “it is frequently desirable that instructions which have been reduced to writing be not only read
to the jury but also be handed over to the jury. . . . We see no good reason why the members of the jury
should always be required to debate and rely upon their several recollections of what a judge said when
proof of what he said is readily available.” (emphasis omitted)); see also McPetrie v. State, 587 S.E.2d 233,
238-39 (Ga. Ct. App. 2003) (upholding the distribution of written instructions by finding, in part, that such
practice has been described as “beneficial”).

249

the O.C.G.A. requires that the “statutory instructions as determined by the trial judge” be
given in writing to a capital jury for its deliberation during the sentencing phase. 208 The
Georgia Supreme Court has found that the “statutory instruction as determined by the
trial judge” may include as little as a written copy of the statutory aggravating
circumstances orally charged by the judge.209

207

U.S. v. Holman, 680 F.2d 1340, 1354 (11th Cir. 1982); U.S. v. Massey, 89 F.3d 1433, 1442 (11th Cir.
1996) (citing Holman, 680 F.2d at 1340); Ross v. State, 592 S.E.2d 479, 482 (Ga. 2003); Anderson, 413
S.E.2d at 733-34.
208
O.C.G.A. § 17-10-30(c) (2004).
209
Mulligan v. State, 264 S.E.2d 204, 208 (Ga. 1980); Speed v. State, 512 S.E.2d 896, 904 (Ga. 1999)
(finding “[t]he trial court did not err by sending a written copy of the alleged statutory aggravating
circumstances out with the jury during its deliberations, as required by OCGA § 17-10-30(c)”); Hall v.
State, 415 S.E.2d 158, 163 (Ga. 1991) (relying on Mulligan v. State, 264 S.E.2d 204, 208 (Ga. 1980), to
find that the written instructions provided to the jury were sufficient); see also GA. SUGGESTED PATTERN
JURY INSTRUCTION , VOL. II (CRIMINAL C ASES) § 2.04.30, at 70-71 (3d ed. 2003) (stating that “you will be
given a written copy of these statutory instructions regarding statutory aggravating circumstances”).

250

II. ANALYSIS
A. Recommendation #1
Each capital punishment jurisdiction should work with attorneys, judges,
linguists, social scientists, psychologists, and jurors themselves to evaluate
the extent to which jurors understand capital jury instructions, revise the
instructions as necessary to ensure that jurors understand applicable law,
and monitor the extent to which jurors understand the revised instructions
to permit further revision as necessary.

Although the Council of Superior Court Judges of Georgia has a “Standing Committee on
Pattern Jury Instructions,”210 to the best of our knowledge, the Committee does not work
with linguists, social scientists, psychologists, or jurors to: (1) evaluate jurors’
understanding of the “Georgia Suggested Pattern Jury Instructions—Criminal Cases”
(“pattern jury instructions”) or the actual instructions used in capital cases; (2) revise the
pattern jury instructions as necessary to ensure juror comprehension of the applicable
law; or (3) monitor jurors’ understanding of the pattern jury instructions as revised to
permit further revision as necessary. The State of Georgia, therefore, is not in compliance
with Recommendation # 1.
B. Recommendation #2
Jurors should receive written copies of “court instructions” (referring to the judge’s
entire oral charge) to consult while the court is instructing them and while
conducting deliberations.

The Georgia Blue Ribbon Commission on the Judiciary211 recommended in its 2001
report that the “[J]udicial [C]ouncil [of Georgia]212 propose uniform rules requiring that
written instructions be provided to jurors for use in deliberations.”213
This

210

See Superior Court of Georgia, About the Council of Superior Court Judges, at
http://www.cscj.org/about/ (last visited on Aug. 18, 2005).
211
The Blue Ribbon Commission on the Judiciary was established by the Georgia Supreme Court on
March 1, 1999 for the purpose of considering the “structure and organization of the courts as they relate to
efficiency and the effectiveness in the dispensation of justice.” See Richard W. Creswell, Georgia Courts
st
in the 21 Century the Report of the Supreme Court of Georgia Blue Ribbon Commission on the Judiciary,
53 MERCER L. R EV. 1, 3 (2001).
212
The Judicial Council of Georgia was created by the Georgia Supreme Court pursuant to section 15-520(a) of the O.C.G.A. See O.C.G.A. § 15-5-20(a) (2004). The Judicial Council of Georgia is “charged
with developing policies for administering and improving the courts.” See Judicial Branch of Georgia,
Judicial Council of Georgia, at http://www.georgiacourts.org/councils/jc.html (last visited on Aug. 18,
2005).
213
Creswell, supra note 211; see also Judge Roger M. Young, Using Social Science to Assess the Need
for Jury Reform in South Carolina, 52 S.C. L. R EV. 135, 177-178 (2000) (noting that 69.0% of the judges
polled thought that juror comprehension would be aided by giving written instructions after the judge
charged the jury and most believed that it would aid juror comprehension to have the instructions with them
during deliberations).

251

recommendation, as well as Recommendation # 2, are supported by a number of studies
finding that jurors provided with written court instructions ask fewer questions about the
instructions during deliberations, make fewer comments about being confused about the
instructions, waste less time trying to ascertain the meaning of the instructions, and spend
less time inappropriately applying the law.214 Written instructions, therefore, result in
more efficient and worthwhile deliberations.215
Despite these findings and recommendations, neither the O.C.G.A. nor case law requires
judges to distribute written copies of the judge’s entire oral charge to jurors at any time
during the guilt/innocence or sentencing phase of a capital trial. Rather, judges possess
the sole discretion to distribute written copies of the entire oral charge.216
The O.C.G.A., however, does require judges to provide capital juries with written
“statutory instructions as determined by [the judges].”217 This requirement is satisfied as
long as the judge provides the jury with a written copy of the statutory aggravating
circumstances orally charged by the judge.218 Apart from providing the obligatory
written copy of the statutory aggravating circumstances orally charged, judges possess
total discretion to determine which additional portions of the charge, if any, to provide in
writing to capital juries. As a result, some capital juries may receive the entire oral
charge in writing while others may receive only portions of the oral charge in writing.219
Because Georgia judges are not required to provide capital jurors with written copies of
the entire oral charge while charging the jury and during juror deliberations, the State of
Georgia fails to meet Recommendation #2.

214

The Honorable B. Michael Dann, ‘Lessons Learned’ and ‘Speaking Rights’: Creating Educated and
Democratic Juries, 68 I ND. L.J. 1229, 1259 (1993); Young, supra note 213, at 162-63.
215
Dann, supra note 214, at 1259; Young, supra note 213, at 162-63.
216
U.S. v. Holman, 680 F.2d 1340, 1354 (11th Cir. 1982); U.S. v. Massey, 89 F.3d 1433, 1442 (11th Cir.
1996) (citing Holman, 680 F.2d at 1340); Anderson v. State, 413 S.E.2d 732, 733-34 (Ga. 1992); Ross v.
State, 592 S.E.2d 479, 482 (Ga. Ct. App. 2003).
217
O.C.G.A. § 17-10-30(c) (2004).
218
Speed v. State, 512 S.E.2d 896, 904-08 (Ga. 1999) (finding that “[t]he trial court did not err by sending
a written copy of the alleged statutory aggravating circumstances out with the jury during its deliberations,
as required by OCGA § 17-10-30(c)”); Hall v. State, 415 S.E.2d 158, 163 (Ga. 1991) (relying on Mulligan
v. State, 264 S.E.2d 204, 208 (Ga. 1980), to find that the written instructions provided to the jury were
sufficient); Page v. State, 345 S.E.2d 600, 603 (Ga.1986) (trial judge provided the jury with a copy of the
state's notice of intent to seek the death penalty, accompanied by oral instructions that the law requires the
trial judge to include in his instructions to the jury for it to consider . . . any . . . statutory aggravating
circumstances which may be supported by the evidence); Mulligan, 264 S.E.2d at 208; see also GA.
SUGGESTED P ATTERN JURY I NSTRUCTION, VOL. II (CRIMINAL C ASES) § 2.04.30, at 70-71 (3d ed. 2003).
219
Cape v. State, 272 S.E.2d 487, 494-95 (Ga. 1980); Spraggins v. State, 252 S.E.2d 620, 622 (Ga. 1979);
Collins v. State, 253 S.E.2d 729, 734-36 (Ga. 1979); Mulligan, 264 S.E.2d at 208 (noting, for example, that
the jury could be provided with a list of the applicable aggravating circumstances with no mention of
mitigating circumstances or the burden of proof as to mitigating circumstances); Collier v. State, 393
S.E.2d 509, 510 (Ga. Ct. App. 1990).

252

C. Recommendation #3
Trial courts should respond meaningfully to jurors' requests for
clarification of instructions by explaining the legal concepts at issue and
meanings of words that may have different meanings in everyday usage and,
where appropriate, by directly answering jurors' questions about applicable
law.

Capital jurors commonly have difficulty understanding jury instructions.220 This can be
attributed to a number of factors, including, but not limited to, the length of the
instructions, the use of complex legal concepts and unfamiliar words without proper
explanation, and insufficient definitions.221
Given that jurors have difficulty
understanding jury instructions, judges must respond meaningfully to jurors’ requests for
clarification of the instructions to ensure juror comprehension of the applicable law.
Studies have shown that Georgia capital jurors have difficulty understanding two main
concepts: (1) mitigation evidence, and (2) the effect of finding certain aggravating
circumstances.222 Georgia capital jurors’ difficulty in understanding the concept of
mitigation evidence may be attributed to the lack of definitions and direction provided in
the pattern jury instructions and required by the O.C.G.A. and Georgia Supreme Court.
By contrast, jurors’ confusion with the effect of finding certain aggravating
circumstances may be attributed largely to their misinterpretation of the direction
provided both in the pattern jury instructions and the O.C.G.A.
The pattern jury instructions contain only one instruction on how capital juries should
consider mitigation evidence. The pattern instructions specifically advise the jury that
when determining the defendant’s punishment, it must consider “the facts and
circumstances, if any, in extenuation[][and] mitigation . . . of punishment.”223 The
pattern jury instructions also contain a definition for “mitigating circumstances;”
however, the Georgia Supreme Court has found that judges do not have to provide this

220

Susie Cho, Capital Confusion: The Effect of Jury Instructions on the Decision to Impose Death, 85 J.
CRIM. L. & C RIMINOLOGY 532, 549-551 (1994) (discussing juror comprehension, or lack thereof, of jury
instructions); Shari Seidman Diamond & Judith N. Levi, Improving Decisions on Death by Revising and
Testing Jury Instructions, 79 JUDICATURE 224, 225 (1996); Theodore Eisenberg & Martin T. Wells, Deadly
Confusion: Juror Instructions in Capital Cases, 79 C ORNELL L. R EV. 1, 12-15 (1993) (focusing on South
Carolina capital juries understanding or misunderstanding of jury instructions).
221
James Luginbuhl & Julie Howe, Discretion in Capital Sentencing Instructions: Guided or Misguided?,
70 I ND. L.J. 1161, 1169-1170 (1995); Peter Meijes Tiersma, Dictionaries and Death: Do Capital Jurors
Understand Mitigation?, 1995 UTAH L. R EV. 1, 7 (discussing jurors understanding of the concept of
mitigation evidence, including the scope, applicable burden of proof, and the required number of jurors
necessary to find the existence of a mitigating factor).
222
Ursula Bentele & William J. Bowers, How Jurors Decide on Death: Guilt Is Overwhelming;
Aggravation Requires Death; and Mitigation Is No Excuse, 66 B ROOK. L. REV. 1011, 1077 (2001); William
J. Bowers & Wanda D. Foglia, Still Singularly Agonizing: Law’s Failure to Purge Arbitrariness from
Capital Sentencing, 39 C RIM. L. B ULL. 51, 68 (2003).
223
GA. S UGGESTED PATTERN JURY INSTRUCTIONS , VOL. II (CRIMINAL C ASES) § 2.04.30, at 65 (3d ed.
2003).

253

definition or any definition for the term “mitigation,” as it is a term of common usage and
meaning.224 Similarly, neither the pattern jury instructions nor the O.C.G.A. provide any
guidance as to the scope of mitigation evidence, as neither source contains a list of factors
that may be considered by the jury as mitigation,225 and the Georgia Supreme Court has
found that judges do not have to provide juries with lists of mitigating circumstances
present in the cases. 226 Additionally, neither the pattern jury instructions nor the
O.C.G.A. mention the burden of proof for mitigating circumstances or the requisite
number of jurors necessary to find the existence of mitigating circumstances.227
Based on this information, it is no surprise that 40.5% of interviewed Georgia capital
jurors did not understand that they could consider any evidence in mitigation228 and that
62.2% believed that the defense had to prove mitigating factors beyond a reasonable
doubt.229 Similarly, 89% of interviewed Georgia capital jurors did not understand that
they could consider any factor in mitigation regardless of whether other jurors agreed.230
Georgia capital jurors are not only confused with the scope of mitigation evidence that
they may consider but also with the applicable burden of proof and the unanimity
required for a finding of mitigating factors.
Georgia capital jurors also have had difficulty understanding the effect of finding the
existence of the statutory aggravating factor involving “heinous, vile or depraved”
conduct and the non-statutory aggravating factor involving future dangerousness.
Although judges are required to instruct the jury that it may impose “life imprisonment”
even if it finds the existence of an aggravating circumstance, 51.4% of interviewed
Georgia capital jurors believed that they were required to sentence the defendant to death
if they found the defendant’s conduct to be “heinous, vile, or depraved” beyond a
reasonable doubt.231 Similarly, 30.1% of interviewed Georgia capital jurors believed that
if they found the defendant to be a future danger to society, they were required by law to
sentence him/her to death.232
These figures illustrate the confusion among capital jurors regarding the jury instructions
and highlight the importance of the manner in which judges respond to jurors’ requests
for clarification of the instructions. Despite the clear need for trial courts to make efforts
to clarify juror confusion, we have been unable to determine whether courts are
responding meaningfully to juror questions in practice. Consequently, we are unable to
determine whether the State of Georgia meets Recommendation #3.

224
225
226
227
228
229
230
231
232

Id.
Id.
Id.
Id.
Bowers and Foglia, supra note 222, at 68.
Id.
Id.; Bentele & Bowers, supra note 222, at 1077.
Bowers & Foglia, supra note 222, at 72.
Id.

254

D. Recommendation #4
Trial courts should instruct jurors clearly on applicable law in the
jurisdiction concerning alternative punishments and should, at the
defendant's request during the sentencing phase of a capital trial, permit
parole officials or other knowledgeable witnesses to testify about parole
practices in the state to clarify jurors’ understanding of alternative
sentences.

Recommendation #4 is composed of two parts. The first part requires judges to provide
clear jury instructions on alternative punishments; the second requires judges to provide
instructions and allow the introduction of evidence on parole practices, including witness
testimony, upon the defendant’s request.
1. Alternative Punishments
Section 17-10-31.1(d) of the O.C.G.A., adopted in 1993, provides for two alternative
punishments to death, life imprisonment and life imprisonment without parole. In all
death penalty cases where the offense was committed after May 1, 1993, or the defendant
elected to be sentenced under section 17-10-31.1(d),233 the O.C.G.A. and the Georgia
Supreme Court clearly require judges to instruct juries on the two alternative punishments
to death.234 The judge’s instructions must not only mention the availability of the
alternative punishments, but also include the meaning of and difference between the two
alternative punishments.235 Section 17-10-31.1(d) and the pattern jury instructions
provide definitions of the two alternative punishments.236 Both sources clearly explain
the possibility of parole under each alternative punishment. The O.C.G.A. also allows
the state and defense to further clarify jurors’ understanding of the alternative
punishments by presenting arguments on the meaning and appropriateness of life without
parole and life imprisonment.237
However, in death penalty cases where the offense occurred before May 1, 1993, or the
defendant opts not to be sentenced under section 17-10-31.1(d), the O.C.G.A. prohibits
judges from instructing juries on the meaning of “life imprisonment,” which was the only
alternative punishment to death prior to the adoption of section 17-10-31.1(d).
The prohibition against providing jurors with the meaning of “life imprisonment” directly
affected a number of Georgia death penalty cases between 1973 and 1990.238 Out of the
280 death penalty cases reviewed, capital jurors asked questions about the meaning of life

233

See supra note 161 and accompanying text.
See supra notes 154, 157-159 and accompanying text.
235
See supra notes 157-159 and accompanying text.
236
See supra note 154 and accompanying text.
237
See id.
238
J. Mark Lane, ‘Is There Life Without Parole?’: A Capital Defendant’s Right to a Meaningful
Alternative Sentence, 26 LOY. L.A. L. REV. 327, 335-37 (1993).
234

255

imprisonment and the possibility of parole in 70, or 25%, of the cases.239 In all 70 cases,
the capital jury returned a sentence of death after the judge refused to clarify the meaning
of life imprisonment or the possibility of parole.240 These figures underscore the
importance of allowing judges to define the available alternative punishments and the
need to provide juries with accurate information regarding states’ parole practices.
2. Parole Practices
The State of Georgia requires judges to provide the jury with information on Georgia’s
parole practices only if two factors are present: (1) the state raises the issue of the
defendant’s future dangerousness; and (2) Georgia law prohibits the defendant’s release
on parole.241 In all other capital cases, judges are not required to provide the jury with or
to allow the defendant to admit any information as to Georgia’s parole practices even
upon the defendant’s request.242 Judges are not required to instruct the jury on mandatory
minimum periods of imprisonment or on the likelihood of receiving parole if sentenced to
“life imprisonment,” 243 nor must the judge allow the introduction of evidence on these
issues, including witness testimony.244 Because judges are not required to inform capital
juries about Georgia’s parole practices upon the defendant’s request, jurors have to rely
solely on their own perceptions, or misperceptions, of Georgia’s parole practices,
including the availability and likelihood of receiving parole.
The problems associated with failing to inform capital jurors of parole practices have
been illustrated in a number of studies.245 These studies consistently have shown that
capital jurors underestimate the total number of years defendants convicted of capital
murder but not sentenced to death spend in prison.246
Between 1988 and 1990, 49.3% of interviewed Georgia capital jurors believed that
capital murderers who were not sentenced to death were paroled in seven years, despite a
fifteen-year mandatory minimum sentence for capital murder. 247 This study was

239

Id.
Id.
241
Id.
242
Philpot v. State, 486 S.E.2d 158, 161 (Ga. 1997) (citing Simmons v. South Carolina, 512 U.S. 154
(1994), and stating one “reasonably may conclude that truthful information regarding the availability of
commutation, pardon, and the like, should be kept from the jury in order to provide ‘greater protection in
[the States’] criminal justice system than the Federal Constitution requires”); Henry v. State, 462 S.E.2d
737, 746 (Ga. 1995).
243
Jackson v. State, 512 S.E.2d 241, 246 (Ga. 1999).
244
Henry, 462 S.E.2d at 746; Philpot, 486 S.E.2d at 161; Lance v. State, 560 S.E.2d 663, 678 (Ga. 2002).
245
See William J. Bowers & Benjamin D. Steiner, Death By Default: An Empirical Demonstration of False
and Forced Choices in Capital Sentencing, 77 TEX. L. R EV. 605, 645 (1999); Bowers & Foglia, supra 222,
at 80; William J. Bowers, The Capital Jury: Is it Titled Toward Death, 79 JUDICATURE 220, 221-22 (1996).
246
See Bowers & Steiner, supra note 245, at 645; Bowers & Foglia, supra note 222, at 80; Bowers, supra
note 245, at 221-22.
247
See Bowers & Steiner, supra note 245, at 650; Benjamin D. Steiner et al., Folk Knowledge As Legal
Action: Death Penalty Judgments and the Tenet of Early Release in a Culture of Mistrust and Punitiveness,
240

256

conducted prior to the adoption of section 17-10-31.1(d) of the O.C.G.A., when the only
sentencing options for capital murder in Georgia were death and life imprisonment and
judges were not required to provide a definition of “life imprisonment.” 248 The study,
however, also revealed that jurors’ perceptions of the amount of time capital murders not
sentenced to death usually served in prison did not vary widely among states that had
“life without parole” and those that did not.249 In fact, both capital jurors in states with
and those without “life without parole” greatly underestimated the amount of time
defendants convicted of capital murder but not sentenced to death spend in prison before
they become eligible for parole.250
Even though Georgia now includes “life without parole” as a sentencing option, Georgia
capital juries remain vulnerable to underestimating the total number of years a capital
murderer not sentenced to death serves in prison and to making their sentencing decisions
based on inaccurate beliefs as to the state’s parole practices. In order to enable Georgia
capital juries to make informed sentencing decisions, the State of Georgia should allow in
the sentencing phase the introduction of evidence regarding its parole practices, including
witness testimony, upon the defendant’s request.
Based on the foregoing, the State of Georgia is only in partial compliance with
Recommendation #4. The State of Georgia requires judges to provide the meaning of the
alternative punishments to death only where the offense occurred after May 1, 1993 or
where the defendant opted to be sentenced under section 17-10-31.1(d) of the O.C.G.A.
and not in cases where the offense occurred before May 1, 1993 or where the defendant
did not opt to be sentenced under section 17-10-31.1(d). Furthermore, the State of
Georgia does not require judges to provide instructions or to admit evidence in the
sentencing phase regarding the state’s parole practices upon the request of the defendant.
E. Recommendation #5
Trial courts should instruct jurors that a juror may return a life sentence,
even in the absence of any mitigating factor and even where an aggravating
factor has been established beyond a reasonable doubt, if the juror does not
believe that the defendant should receive the death penalty.

The Georgia Supreme Court requires all judges to “make clear” to the jury that it could
recommend life imprisonment even if it found the existence of a statutory aggravating

33 LAW & S OC’Y REV. 461, 477-78 (1999) (discussing the impact media and “folk knowledge” has on
jurors perceptions of Georgia’s parole practices).
248
Bowers & Steiner, supra note 245, at 650; Steiner et al., supra note 247, at 477-78 (discussing the
impact media and “folk knowledge” has on jurors perceptions of Georgia’s parole practices).
249
See Bowers & Steiner, supra note 245, at 648 (1999).
250
Id.

257

circumstance.251 Judges’ instructions, however, do not have to mention that the jury
could recommend life imprisonment even in the absence of finding a mitigating
circumstance nor do they have to inform the jury that they need not be unanimous on a
finding of a mitigating circumstance. The pattern jury instructions do contain an
instruction regarding recommending life imprisonment in the absence of mitigating
circumstances, but the Georgia Supreme Court has yet to require judges to include this
information in their instructions. The State of Georgia, therefore, only is in partial
compliance with Recommendation #5.
It is important to note, however, that the instruction required by the Georgia Supreme
Court is in part broader than Recommendation #5, as it is not limited to cases in which
the “juror does not believe that the defendant should receive the death penalty.” In fact,
the Georgia Supreme Court and the pattern jury instructions both indicate that judges
may instruct jurors that they are authorized to impose life imprisonment for any reason or
without any reason.252
F. Recommendation #6
Trial courts should instruct jurors that residual doubt about the defendant's
guilt is a mitigating factor. Further, jurisdictions should implement the
provision of Model Penal Code Section 210.6(1)(f),253 under which residual

251

Stynchcombe v. Floyd, 311 S.E.2d 828, 830 (Ga. 1984); Romine v. State, 305 S.E.2d 93, 100 (Ga.
1983); Spraggins v. State, 243 S.E.2d 20, 23 (Ga. 1978); Fleming v. State, 240 S.E.2d 37, 41 (Ga. 1977);
Hawes v. State, 240 S.E.2d 833, 839 (Ga. 1977).
252
McPherson v. State, 553 S.E.2d 569, 578 (Ga. 2001); GA. S UGGESTED P ATTERN JURY INSTRUCTIONS,
VOL. II (CRIMINAL C ASES) § 2.04.50, at 72 (3d ed. 2003).
253
Section 210.6(1) of the Model Penal Code states as follows:
(1) Death Sentence Excluded. When a defendant is found guilty of murder, the Court
shall impose sentence for a felony of the first degree [rather than death] if it is satisfied
that:
(a) none of the aggravating circumstances enumerated in Subsection (3) of this Section
was established by the evidence at the trial or will be established if further proceedings
are initiated under Subsection (2) of this Section; or
(b) substantial mitigating circumstances, established by the evidence at the trial, call for
leniency; or
(c) the defendant, with the consent of the prosecuting attorney and the approval of the
Court, pleaded guilty to murder as a felony of the first degree; or
(d) the defendant was under 18 years of age at the time of the commission of the crime;
or
(e) the defendant's physical or mental condition calls for leniency; or
(f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt
respecting the defendant's guilt.
See MODEL P ENAL C ODE § 210.6(1); see also James R. Acker & Charles S. Lanier, In Fairness and Mercy:
Statutory Mitigating Factors in Capital Punishment Laws, 30 CRIM . L. B ULL . 299, 311-313 (1994)
(discussing the mitigating factors included in the Model Penal Code and the statutory factors under modern
death penalty laws).

258

doubt concerning the defendant’s guilt would, by law, require a sentence less
than death.

The State of Georgia fails to meet the requirements of Recommendation #6, as it does not
require judges to instruct jurors that residual doubt concerning the defendant’s guilt is a
mitigating circumstance nor does it have a state law requiring a sentence less than death
in cases in which residual doubt concerning the defendant’s guilt is present.254 In fact,
the O.C.G.A. and the pattern jury instructions do not even contain a list of mitigating
circumstances that should be considered by juries, and the Georgia Supreme Court does
not require judges to instruct juries on the relevant mitigating circumstances present in
the case.255 Instead, the judge need only instruct the jury to “consider mitigating
circumstances in general, and that it could impose a sentence of life imprisonment for any
reason or without any reason.”256
G. Recommendation #7
In states where it is applicable, trial courts should make clear in juror instructions
that the weighing process for considering aggravating and mitigating factors should
not be conducted by determining whether there are a greater number of
aggravating factors than mitigating factors.

Recommendation #7 is inapplicable to the State of Georgia, as it is a non-weighing state
in that the jury does not have to assess whether the aggravating factors outweigh the
mitigating factors in order to sentence the defendant to death; rather, the jury can
sentence the defendant to death after finding the existence of at least one aggravating
circumstance.257

254
255
256
257

McPherson, 553 S.E.2d at 578 (discussing specifically residual doubt).
Id.
Id.
Id.

259

260

CHAPTER ELEVEN
JUDICIAL INDEPENDENCE
INTRODUCTION TO THE ISSUE
Our criminal justice system relies on the independence of the Judicial Branch to ensure
that judges decide cases to the best of their abilities without political or other bias and
notwithstanding official and public pressure. However, judicial independence is
increasingly being undermined by judicial elections, appointments and confirmation
proceedings that are affected by nominees' or candidates' purported views on the death
penalty or by judges' decisions in capital cases.
During judicial election campaigns, voters often expect candidates to assure them that
they will be “tough on crime,” that they will impose the death penalty whenever possible,
and that, if they are or are to be appellate judges, they will uphold death sentences. In
retention campaigns, judges are asked to defend decisions in capital cases and sometimes
are defeated because of decisions that are unpopular, even where these decisions are
reasonable or binding applications of the law or reflect the predominant view of the
Constitution. Prospective and actual nominees for judicial appointments often are
subjected to scrutiny on these same bases. Generally, when this occurs, the discourse is
not about the Constitutional doctrine in the case but rather about the specifics of the
crime.
All of this increases the possibility that judges will decide cases not on the basis of their
best understanding of the law, but rather on the basis of how their decisions might affect
their careers, and makes it less likely that judges will be vigilant against prosecutorial
misconduct and incompetent representation by defense counsel. For these reasons, judges
must be cognizant of their obligation to take corrective measures both to remedy the
harms of prosecutorial misconduct and defense counsel incompetence and to prevent
such harms in the future.

261

I. FACTUAL DISCUSSION
A. Selection of Judges
In the State of Georgia, all superior and state court judges are selected in non-partisan
elections,1 which are held and conducted jointly with the general election in each evennumbered year.2 Once elected, superior court judges3 serve four-year terms while
justices of the Georgia Supreme Court and judges of the Georgia Court of Appeals serve
six-year terms.4
If a judicial vacancy arises prior to the expiration of the term of office, the Governor of
Georgia possesses the sole authority to appoint a new judge to the bench.5 Since 1971,
when Governor Jimmy Carter created by Executive Order the first judicial nominating
commission to assist him with the appointment of judges,6 all Georgia Governors have
created similar commissions7 for the same purpose.8
The current “Judicial Nominating Commission for the State of Georgia” (JNC) was
created by Executive Order by Governor Sonny Perdue on June 11, 2003.9 The JNC is
composed of 19 Governor-appointed members 10 who are “to serve at the pleasure of the

1

GA. CONST. art. VI, § 7, para. 1.
O.C.G.A. § 21-2-138 (2005).
3
O.C.G.A. § 15-6-4 (2005) (requiring superior court judges to be 30 years old, to be citizens of Georgia
for three years, and to have practiced law for seven years).
4
See GA. CONST. art. VI, § 7, para. 1 (establishing procedures for judicial elections); O.C.G.A. § 21-2-9
(2005) (governing date of judicial elections).
5
GA. CONST. art. V, § 2, para. 8(a) (stating that “[w]hen any public office shall become vacant by death,
resignation, or otherwise, the Governor shall promptly fill such vacancy unless otherwise provided by this
Constitution or by law”); GA. CONST. art VI, § 7, para. 3 (stating that “[v]acancies shall be filled by
appointment of the Governor except as otherwise provided by law in the magistrate, probate, and juvenile
courts”); O.C.G.A. § 15-7-23 (2005).
6
See Camille M. Tribble, Awakening a Slumbering Giant: Georgia’s Judicial Selection System After
White and Weaver, 56 MERCER L. R EV. 1035, 1057-59 (2005) (discussing the Carter JNC model).
7
The composition of the judicial nominating commissions has varied from Governor to Governor.
Compare Ga. Exec. Order, Regarding the Judicial Nominating Commission (June 11, 2003), Gov. Sonny
Perdue, at http://www.gov.state.ga.us/2003_exec_orders.shtml (last visited on Jan. 9, 2006), with White v.
Alabama, 74 F.3d 1058, 1071 n.40 (11th Cir. 1996) (stating that pursuant to the Executive Order issued by
then-Governor Zell Miller, the judicial nominating commission is “a nine-member commission . . . [and]
[t]he governor appoints five members of the commission, three lawyers and two non-lawyers. The
lieutenant governor and the speaker of the house of representatives each appoint one non-lawyer member,
and two members serve ex officio.”), and Duncan v. Poythress, 515 F. Supp. 327, 332 n.2 (N.D. Ga. 1981)
(stating that based on the Executive Order issued by then-Governor George Busbee,“[t]he Commission
consists of five ex officio members of the State Bar of Georgia, and five members appointed by the
Governor from the public at large”).
8
See Tribble, supra note 6, at 1058-61 (comparing the different JNC models from Carter to Perdue).
9
Ga. Exec. Order, supra note 7.
10
The Commission currently is composed of the following nineteen members:
2

262

Governor.”11 The JNC is responsible for advertising any judicial vacancy, eliciting
applications of qualified persons to fill the vacancy, and recommending to the Governor a
list of no more than five individuals whom it finds are qualified for each judicial
vacancy.12 The Governor, however, is not bound by the recommendations, but rather
may fill the vacancy with any qualified person.13 The Governor’s judicial appointments
do not have to be confirmed by the Senate14 and will serve for the unexpired term,15 at the

Michael J. Bowers, Chairman - Former Georgia Attorney General.
Thurbert E. Baker - Attorney General of Georgia.
Karen B. Baynes - Director of the Carl Vinson Institute's Governmental Services Division at
the University of Georgia and a former associate juvenile court judge, Athens, Ga.
James B. Franklin - Partner with Franklin, Taulbee, Rushing, Snipes & Marsh, P.C. since
1973 in Statesboro, GA, former State Bar President (2002) and former nominee to Federal
District Court.
James C. Gatewood - Attorney with Gatewood, Skipper & Rambo, P.C.
J. Allen Hammontree - Partner with Goddard, Thames, Hammontree & Bolding, LLC, in
Dalton, Ga, former 3-term State Representative, serving on the House Judiciary Committee
and the Chief Justice's Indigent Defense Commission.
William B. Hill, Jr. - Partner with Paul, Hastings, Janofsky & Walker LLP in Atlanta, Ga and
former Superior Court Judge of the Atlanta Judicial Circuit.
James P. Kelly, III - Private practice, James P. Kelly, III, P.C. in Atlanta, Ga.
Michael J. Long - Partner with O'Neal Long & Hall in Warner Robins, GA. and County
Attorney for Houston County, Ga.
Leslie D. Mattingly - Former Master Commissioner, Indiana Superior Court.
Claud L. “Tex” McIver, III - Partner with Fisher & Phillips LLP.
Kenyon W. Murphy - Sr. Vice President & General Counsel of Acuity Brands, Inc.
Dan E. Ponder, Jr. - Former Georgia State Representative and recent 2003 Profile in Courage
Award winner in recognition of his passionate speech in support of hate-crime legislation
before the Georgia Legislature.
James W. Purcell – Partner with Fulcher Hagler Reed Hanks & Harper.
Robert S. Reeves - Attorney in private practice, Swainsboro, Ga.
Michael C. Russ - Partner at King & Spalding in Atlanta, Ga, a Trustee of the Metropolitan
Atlanta Crime Commission, and a board member of Ministries to Women, a home for
battered women and their children.
Frank B. Strickland - Partner with Strickland Brockington Lewis, LLP in Atlanta, Ga. and
Chairman of the Board of Directors of the Legal Services Corporation.
H. Jerome Strickland - Attorney with Jones, Cork & Miller in Macon, Ga.
Emory A. Wilkerson - Supervising lead attorney with State Farm Insurance Industries,
Fayetteville, Ga.
Id.; Press Release, Office of the Governor of Georgia, Governor Perdue Announces Formation of
the Judicial Nominating Commission, Former State Attorney General Michael Bowers to Serve as
Chairman (June 11, 2003), at http://www.gov.state.ga.us/2003_releases.shtml (last visited on Jan.
9, 2006); see also Email from Barbara Watson, Executive Assistant to the Chair of the Judicial
Nominating Commission, to Banafsheh Amirzadeh, Project Attorney, American Bar Association
(Sept. 16, 2005) (on file with author).
11
Ga. Exec. Order, supra note 7.
12
Id.
13
See id.; see also Tribble, supra note 6, at 1060 (noting an instance in which former Gov. Roy Barnes
ignored his nominating commission when making an appointment).
14
See 1960-61 Op. Att’y Gen. 101 (1960).
15
GA. CONST. art. V, § 2, para. 8(a).

263

end of which time s/he will be subject to an election at the next general election. If,
however, the appointment is made within six months of the next general election, “the
appointee will remain in office beyond the time of the unexpired term and until the first
of the year following the next general election and until a successor is duly selected and
qualified.”16
B. Conduct of Judicial Candidates and Judges
The “Judicial Qualifications Commission” (JQC),17 created by Constitutional
Amendment in 1972, possesses “the general power to discipline, remove, and cause
involuntary retirement of judges.”18 The Georgia Supreme Court, charged with adopting
“rules of implementation” for the discipline, removal, and involuntary retirement of
judges,19 adopted the Georgia Code of Judicial Conduct and established a set of rules
governing the JQC.20
The JQC consists of seven members: two judges who are selected by the Georgia
Supreme Court; three members of the State Bar of Georgia who have been active status
members for at least ten years and are appointed by the state bar; and two citizens who
are not members of the state bar and are appointed by the Governor.21 The JQC may
select from its members a Chairperson, Vice Chairperson, Director, and any other
officers it deems necessary.22 Members of the JQC serve four-year terms and until their
successors are elected or appointed and qualified to serve.23
The JQC is charged specifically with investigating and making recommendations to the
Georgia Supreme Court regarding the ethical misconduct of judicial candidates and
judges.
1. Conduct Of and Complaints Against Judicial Candidates During Campaigns
Every year in which a general election is held or as deemed necessary by the JQC, the
Chair of the JQC may select three members to serve on the “Special Committee on
Judicial Election Campaign Intervention” (Special Committee).24 The Director of the
JQC also serves as an ex-officio member.25 The Special Committee must monitor
judicial candidates’ compliance with Canon 7 of the Georgia Code of Judicial Conduct

16

GA. CONST art. VI, § 7, para. 4; Perdue v. Palmour, 600 S.E.2d 370, 372 (Ga. 2004) (upholding the six
month provision).
17
GA. CONST. art. VI, § 7, para. 6.
18
Id.; see also Weaver v. Bonner, 114 F. Supp. 2d 1337, 1339 (2000).
19
GA. CONST. art. VI, § 7, para. 7(a).
20
GA. JUD . Q UAL. C OMM’ N (2005).
21
GA. CONST. art. VI, § VII, para. VI; GA. RULES JUD . QUAL . C OMM’N R. 1(a)(1)-(3) (2005).
22
GA. JUD. QUAL. C OMM’N R. 2(A), (E) (2005).
23
GA. JUD. QUAL. C OMM’N R. 1(b) (2005).
24
GA. JUD. QUAL. C OMM’N R. 27(a) (2005).
25
Id.

264

and “deal expeditiously with allegations of ethical misconduct in campaigns for judicial
office.”26
Canon 7 requires all judicial candidates, including incumbent judges, to maintain a
certain standard of conduct during their campaigns.27 Canon 7(B) specifically requires
judicial candidates to do the following:
1.

2.
3.

4.

5.

6.

Prohibit officials or employees subject to their direction or control or any
other person from doing for them what they are prohibited from doing
under Canon 7;28
Not make statements that commit the candidate with respect to issues
likely to come before the court;29
Not use or participate in the publication of a false statement of fact
concerning themselves or their candidacies, or concerning any opposing
candidate or candidacy, with knowledge of the statement’s falsity or with
reckless disregard for the statement’s truth or falsity;30
Be responsible for the content of any statement or advertisement published
or communicated in any medium by a campaign committee if the
candidate knew of or recklessly disregarded the content of said statement
or advertisement prior to its release;31
Be responsible for reviewing and approving the content of his or her
statements and advertisements, and those of his or her campaign
committee, except where a statement or advertisement is published or
communicated by a third party;32 and
Not use or permit the use of campaign contributions for the private benefit
of themselves or members of their families. 33

26

GA. JUD. QUAL. C OMM’N R. 27(a), (b) (2005).
GA. C ODE OF JUD . C ONDUCT Canon 7(B) (2005).
28
GA. C ODE OF JUD . C ONDUCT Canon 7(B)(1)(a) (2005).
29
GA. C ODE OF JUD . C ONDUCT Canon 7(B)(1)(b) (2005); see also GA. CODE OF JUD. C ONDUCT Canon
7(B)(1)(b) cmt. (2005) (noting that this Canon “does not prohibit a judge or candidate from publicly stating
his or her political views on disputed issues”).
30
GA. C ODE OF JUD . C ONDUCT Canon 7(B)(1)(c) (2005).
31
GA. C ODE OF JUD. C ONDUCT Canon 7(B)(1)(d)(2005). Prior to the Eleventh Circuit’s 2002 decision in
Weaver v. Bonner, finding Canon 7(B)(1)(d) an unconstitutional restraint on free speech, and the 2004
revisions to the Code of Judicial Conduct, Canon 7(B)(1)(d) prohibited judges and judicial candidates from
“us[ing] or participat[ing] in the use of any form of public communication which the candidate knows or
reasonably should know is false, fraudulent, misleading, deceptive, or which contains a material
misrepresentation of fact or law or omits a fact necessary to make the communication considered as a
whole not materially misleading or which is likely to create an unjustified expectation about results the
candidate can achieve.” Weaver v. Bonner, 309 F.3d 1312, 1315 (11th Cir. 2002).
32
GA. CODE OF JUD. CONDUCT Canon 7(B)(1)(e) (2005).
33
GA. CODE OF JUD . CONDUCT Canon 7(B)(2) (2005). Canon 7(B)(2) was revised in 2004 after the
Eleventh Circuit found portions of it to be unconstitutional. See Weaver, 309 F.3d at 1312. Prior to the
revision, Canon 7(B)(2) prohibited judicial candidates from personally soliciting campaign contributions
and from personally soliciting publicly stated support. Id.
27

265

If the JQC receives a complaint or information “facially indicating a violation” by a
judicial candidate of any provision of Canon 7, the Special Committee must act on the
complaint within ten days of receipt.34 The Director must forward a copy of the
complaint or information to all members of the Special Committee.35 The Special
Committee must then procure from the complainant and/or the subject of the complaint
any additional information on the allegations of the complaint as necessary and conduct
any additional investigation as deemed necessary by the Special Committee.36 The
Special Committee must also determine whether the allegations require “speedy
intervention.”37
If the allegations do not require “speedy intervention,” the Special Committee may
dismiss the complaint.38 Alternatively, if the allegations require further investigation, the
Special Committee may request confidential written responses from the subject of the
complaint and the complaining party on the following schedule:39
1.
2.

3.

Within 3 business days of receiving such a request from the Committee, a
written response from the subject of the complaint;
The Committee will share the subject’s written response with the
complaining party on a confidential basis, who shall be requested to
provide a written response within 3 business days; and
The Committee will share the complaining party’s response with the
subject of the complaint, who then shall be requested to submit a written
rebuttal within 1 business day.40

If, after reviewing the documents submitted by the parties, the Special Committee
determines that the allegations do not warrant intervention, the Committee must dismiss
the complaint and notify the complaining party and the subject of the complaint.41 If,
however, the Committee determines that the allegations require intervention, the
Committee may “immediately release to the complaining party and the person and/or
organization complained against, a non-confidential “Public Statement” setting out
violations believed to exist; and/or [ ] refer the matter to the full Commission for such
action as may be appropriate under the applicable rules.”42

34

GA. JUD. QUAL. C OMM’N R. 27(c), (d) (2005).
GA. JUD. QUAL. C OMM’N R. 27(c) (2005).
36
GA. JUD. QUAL. C OMM’N R. 27(c)(1), (2) (2005).
37
GA. JUD. QUAL. C OMM’N R. 27(c)(3) (2005).
38
Id.
39
This schedule can be accelerated if a complaint is filed within two weeks before a judicial election, or
if circumstances otherwise dictate. See GA. JUD. QUAL. COMM ’N R. 27(b)(4) (2005).
40
Id.
41
GA. JUD. QUAL. C OMM’N R. 27(b)(6) (2005).
42
GA. JUD. QUAL. C OMM’N R. 27(b)(5) (2005).
35

266

2. Conduct Of and Complaints Against Judges
a. Conduct of Judges
The Official Code of Georgia Annotated (O.C.G.A.) and the Georgia Code of Judicial
Conduct include a number of important standards of conduct to which active judges are
required to adhere. This discussion, however, will focus on the standards of conduct
pertaining to three issues: (1) judicial impartiality; (2) public comment on cases; and (3)
the conduct of prosecutors and defense attorneys.
i. Judicial Impartiality
Judges are required to participate in “establishing, maintaining, and enforcing high
standards of conduct and shall personally observe such standards of conduct so that the
integrity and independence of the judiciary may be preserved.”43 Judges are specifically
required to be “faithful to the law” and “not be swayed by partisan interests, public
clamor, or fear of criticism.”44 Judges also are required to perform their judicial duties
“without bias or prejudice.”45 Any judge who “manifest[s] bias on any basis in a
proceeding impair[s] the fairness of the proceeding and bring[s] the judiciary into
disrepute.”46
ii. Public Comment on Cases
Judges must refrain from making any public comment that “might reasonably be
expected to affect [a court proceeding’s] outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing” at any time
“while a proceeding is pending or impending in any court,” 47 including during any
appellate process and until final disposition.48
iii. Conduct of Prosecutors and Defense Attorneys
The Canons provide that judges must require “[attorneys] in proceedings before the judge
to refrain from manifesting, by words and conduct, bias or prejudice based upon race,
sex, religion, national origin, disability, age, sexual orientation or socioeconomic status,
against parties, witnesses, counsel or others.”49 Likewise, the O.C.G.A. provides that
“[w]here counsel in the hearing of the jury make statements of prejudicial matters which
are not in evidence, it is the duty of the court to interpose and prevent the same.”50 If the

43
44
45
46
47
48
49
50

GA. C ODE OF JUD . C ONDUCT Canon 1 (2005).
GA. C ODE OF JUD . C ONDUCT Canon 3(B)(2) (2005).
GA. C ODE OF JUD . C ONDUCT Canon 3(B)(5) (2005).
GA. C ODE OF JUD . C ONDUCT Canon 3(B)(5) cmt. (2005).
GA. C ODE OF JUD . C ONDUCT Canon 3(B)(9) (2005).
GA. C ODE OF JUD . C ONDUCT Canon 3(B)(9) cmt. (2005).
GA. C ODE OF JUD . C ONDUCT Canon 3(B)(6) (2005).
O.C.G.A. § 17-8-75 (2005).

267

other party objects to the prejudicial statement, the judge must also “rebuke the counsel
and by all needful and proper instructions to the jury endeavor to remove the improper
impression from their minds; or, in his[/her] discretion, [s/]he may order a mistrial if the
prosecuting attorney is the offender.”51
“Judges who receive information indicating a substantial likelihood that [an attorney] has
committed a violation of the Standards of Conduct of the State Bar of Georgia (Standards
of Conduct) should take appropriate action.”52 Appropriate action includes: “direct
communication with the . . . [attorney] who has committed the violation, or other direct
action if available, and reporting the violation to the appropriate authority or other agency
or body.” 53 If an attorney’s violation of the Standards of Conduct raises a “substantial
question” of the attorney’s fitness as a practitioner and is “actually known” to the judge,
the judge must report the violation to the State Bar of Georgia.54
b. Complaints Against Judges
An individual wishing to file a complaint against a judge may do so in writing to the
JQC.55 Upon receiving a complaint or other information regarding a judge’s conduct,
including “willful misconduct in office, [ ] willful and persistent failure to perform the
duties of a judge, [ ] habitual intemperance, [ ] conduct prejudicial to the administration
of justice which brings the judicial office into disrepute, or . . . a disability that seriously
interferes with the performance of the judge’s duties which is or is likely to become
permanent, the [JQC] may make an initial inquiry of the judge” for his/her comments as
to the complaint or information.56 The JQC may also conduct an investigation into the
judge’s conduct to determine whether a formal proceeding should be instituted and a
hearing held.57 During the investigation, the JQC may issue subpoenas for witnesses to
appear before the JQC to make a sworn statement and/or may issue subpoenas for the
production of books, papers, and any other relevant evidence.58
Before deciding whether to institute formal proceedings, the JQC must send the judge a
copy of the complaint or a synopsis of the matters under investigation and provide
him/her with a “reasonable opportunity” to respond if s/he so desires.59 The JQC may fix
a time by which the judge’s response must be filed. 60 The judge may make his/her
51

Id.; see also Louis v. State, 364 S.E.2d 607, 608 (Ga. Ct. App. 1988) (exemplifying that the language
“prosecuting attorney” found in section 17-8-75 is not limited to prosecuting attorneys but also includes
defense counsel and co-defendant’s counsel thereby granting the judge discretion to declare a mistrial when
defense counsel or co-defendant’s counsel is the offender).
52
GA. C ODE OF JUD . C ONDUCT Canon 3(D)(2) (2005).
53
GA. C ODE OF JUD . C ONDUCT Canon 3(D)(2) cmt. (2005).
54
GA. C ODE OF JUD . C ONDUCT Canon 3(D)(2) cmt. (2005).
55
GA. JUD. QUAL. C OMM’N R. 4(a) (2005).
56
GA. JUD. QUAL. C OMM’N R. 4(b) (2005).
57
Id.
58
Id.
59
Id.
60
Id.

268

response personally or through his/her counsel and it may be verbal or in writing and it
does not have to be under oath.61 If the judge fails to respond within a reasonable time or
the time fixed by the JQC, his/her opportunity to do so is waived.62
As part of the inquiry/investigation and before a decision has been made regarding the
institution of formal proceedings, the JQC may have one or more of its members
“personally and confidentially” confer with the judge and make informal
recommendations regarding the subject matter of the investigation and the disposition
thereof.63 If the judge agrees to the disposition recommended by the JQC, then the matter
will be disposed of pursuant to the agreement.64 The JQC, thereafter, must file a report of
the disposition with the Georgia Supreme Court.65
If the JQC finds that the complaint or the information does not show any reason to
institute formal disciplinary proceedings, the JQC must advise the complainant and judge
of the findings.66 The judge need not be advised when the complaint against him/her
“fail[s] to state any grounds for disciplinary proceedings.” If the judge’s behavior does
not warrant formal disciplinary proceedings but does warrant sanctions, the JQC may
informally do any the following:
(1) Admonish and/or reprimand a judge;
(2) Direct professional counseling and assistance for a judge;
(3) Impose conditions on a judge’s future conduct or instruct a judge to make specific
changes in particular matters of conduct; or
(4) Adjust the complaint by any other appropriate means consistent with these rules.67
Alternatively, if the JQC finds that formal proceedings should be instituted and a hearing
held, it must issue, “as promptly as possible, a written notice to the judge advising
[him/her] of the institution of formal proceedings to inquire into the charges against the
judge.”68 The written notice must specify the charges with “sufficient fullness” to enable
the judge to understand the charges against him/her and must advise the judge of his/her
right to file a written answer to the charges. 69 The original answer plus six copies must
be filed thirty days after service of the notice.70 The JQC must file a copy of the notice
with the Georgia Supreme Court.71

61
62
63
64
65
66
67
68
69
70
71

Id.
Id.
GA. JUD . Q UAL. C OMM’ N R. 4(d) (2005).
Id.
Id.
GA. JUD. QUAL. C OMM’N R. 4(c) (2005).
GA. JUD. QUAL. C OMM’N R. 4(f) (2005).
GA. JUD. QUAL. C OMM’N R. 5(a) (2005).
GA. JUD . Q UAL. C OMM’ N R. 5(b) (2005).
GA. JUD. QUAL. C OMM’N R. 5(c) (2005).
GA. JUD. QUAL. C OMM’N R. 5(b) (2005).

269

After the answer has been filed or after the time allowed for filing has expired, the JQC
must order a hearing or request the Georgia Supreme Court to appoint a Special Master to
hear and take evidence in the matter and to report back to the JQC.72 During the hearing,
the judge may be represented by counsel and s/he as well as the JQC may admit evidence
and call witnesses to testify.73 Following the hearing or, if a Special Master was
appointed, after s/he releases his/her findings, the judge may file an original brief and six
copies to support the judge’s claim or refute the Special Master’s findings.74
In cases in which a Special Master was appointed, the JQC “may accept, modify or reject
any or all” of the Special Master’s findings as well as his/her recommendation as to
whether the judge should be disciplined.75 Based on the hearing or the Special Master’s
findings and/or recommendation, the JQC must generate a report recommending to the
Georgia Supreme Court that the judge be:
(1) Removed from office;
(2) Removed from office and prohibited from thereafter holding judicial office;
(3) Suspended from office for a specified period of time together with such other
conditions and restrictions as the [JQC] may consider proper;
(4) Censured;76
(5) Reprimanded;
(6) Retired; or
(7) Subjected to such other discipline as deemed appropriate by the JQC.77
The report must be signed by the members of the JQC and it must indicate which
members concurred and which dissented, if any, from the report.78 The report must be
filed with the Georgia Supreme Court and a copy must be served upon the judge.79
C. Training of Judges Who Handle Capital Cases
All new superior court judges, including those presiding over capital cases at the trial
level, are required to attend the Institute of Continuing Judicial Education (ICJE) “as
soon as possible” after their election or appointment or, at the latest, within one year after
assuming office.80 New superior court judges are also “encouraged” to attend a
nationally-based basic course for general jurisdiction trial judges.81

72

GA. JUD. QUAL. C OMM’N R. 6 (2005).
GA. JUD. QUAL. C OMM’N R. 8(e), (f) (2005).
74
GA. JUD. QUAL. C OMM’N R. 11(a), (d) ( 2005).
75
GA. JUD. QUAL. C OMM’N R. 11(c) (2005).
76
If a censure is approved by the Georgia Supreme Court, it must be administered in open court. See
GA. JUD. QUAL. C OMM’N R. 14(a) (2005).
77
Id.
78
GA. JUD. QUAL. C OMM’N R. 14(b) (2005).
79
Id.
80
GA. UNIF. SUPER . CT. R. 43.1(B).
81
Id.
73

270

Additionally, each year, every superior court judge must attend a minimum of twelve
hours of “approved creditable judicial education programs or activities.”82 At least one of
the twelve hours must be dedicated to legal or judicial ethics or legal or judicial
professionalism.83 Judges also are “encouraged to attend national or regional specialty,
graduate or advanced programs of judicial and legal education.” 84
The Committee on Mandatory Continuing Judicial Education (MCJE), appointed by the
President of the Council of Superior Court Judges, may impose private and public
sanctions on judges who fail to comply with the mandatory continuing education
program.85 If a judge fails to attain the required twelve hours of continuing education,
the MCJE must inform the judge of this noncompliance and the judge must submit to the
MCJE a plan for making up any deficiency in his/her continuing education
requirements.86 Similarly, if a judge fails to attain a minimum of twenty-four hours over
a two-year period of time, the MCJE must issue a private administrative admonition
detailing the consequences of his/her failure to fulfill the education requirements.87
If the judge’s failure to fulfill the education requirements continues for a third year, the
President of the Council of Superior Court Judges must issue a public reprimand.88

82

GA. U NIF. S UPER . CT. R. 43.1(A). It should be noted that “creditable judicial education programs and
activities” include:
(1) Programs sponsored by the Institute of Continuing Judicial Education of Georgia;
(2) Programs of continuing legal education accredited by the State Bar of Georgia’s Commission on
Continuing Lawyer Competency, such as all Institute of Continuing Legal Education (ICLE)
programs;
(3) Additional programs approved on behalf of the Council of Superior Court Judges by its
Committee on Mandatory Continuing Judicial Education;
(4) Courses at a Georgia-based law school, whether for credit or not, that qualify an individual for a
degree or to sit for the Georgia bar examination.;
(5) Teaching any of the above; and
(6) Service on the Judicial Qualifications Commission or the State Bar Disciplinary Board for legal or
judicial ethics or legal or judicial professionalism credit.
GA. UNIF. SUPER . CT. R. 43.1(D).
83
GA. UNIF. SUPER . CT. R. 43.1(A).
84
GA. UNIF. SUPER . CT. R. 43.1(C).
85
GA. UNIF. SUPER . CT. R. 43.3.
86
GA. UNIF. SUPER . CT. R. 43.4(1).
87
GA. UNIF. SUPER . CT. R. 43.4(2).
88
GA. UNIF. SUPER . CT. R. 43.4(3).

271

II. ANALYSIS
A. Recommendation #1
States should examine the fairness of their processes for the appointment/election of
judges and should educate the public about the importance of judicial independence
to the fair administration of justice and the effect of unfair practices in
compromising the independence of the judiciary.

To the best of our knowledge, the State of Georgia is not currently examining the fairness
of the judicial appointment/election process89 nor is it undertaking a public education
effort to inform the public about the importance of judicial independence to the fair
administration of justice and the effect of unfair practices in compromising the
independence of the judiciary.
The fairness of the election/appointment process in Georgia, however, has been called
into question for a number of reasons. The Georgia Constitution requires judges to be
elected in nonpartisan elections,90 which increases the influence of money in the judicial
selection process, especially given the rising costs associated with running and/or
winning judicial campaigns in the State of Georgia.91 In 2004, two candidates for one
contested Georgia Supreme Court seat raised a combined total of more than $815,000; 92
just two years earlier in 2002, candidates for two contested Georgia Supreme Court seats
raised a combined total of approximately $700,000.93
The rising costs of campaigns also require candidates and/or their agents to solicit more
and more campaign contributions. Until recently, judicial candidates were prohibited
from personally soliciting campaign contributions94 but, as of January 2004, the Georgia

89

We note that in the recent past, the Georgia Supreme Court created two commissions to study the
judiciary, but neither commission was created for the purpose of assessing the fairness of the
appointment/election process. See, e.g., Georgia Supreme Court Commission on Racial and Ethnic Bias in
the Court System, Let Justice Be Done: Equally, Fairly, and Impartially, 12 GA. S T. U. L. R EV. 687 (1996);
st
Richard W. Creswell, Georgia Courts in the 21 Century the Report of the Supreme Court of Georgia Blue
Ribbon Commission on the Judiciary, 53 MERCER L. R EV. 1, 3 (2001) (stating that the Blue Ribbon
Commission on the Judiciary was created to consider the “structure and organization of the courts as they
relate to efficiency and effectiveness in the dispensation of justice”) (quoting Ga. Sup. Ct. Order
establishing the Commission on the Judiciary (Mar. 1, 1999)).
90
GA. CONST. art. VI, § 7, para. 1.
91
Compare JUSTICE AT STAKE C AMPAIGN, The NEW P OLITICS OF JUDICIAL ELECTIONS 2004 13 (2005),
with JUSTICE A T STAKE CAMPAIGN , T HE NEW P OLITICS OF JUDICIAL ELECTIONS 2002 19 (2005), and
JUSTICE A T S TAKE C AMPAIGN, THE NEW P OLITICS OF JUDICIAL ELECTIONS 2000 11 (2005).
92
JUSTICE A T S TAKE C AMPAIGN, The NEW P OLITICS OF JUDICIAL E LECTIONS 2004 13 (2005).
93
Martha Ezzard, Money Can’t Buy Judicial Elections, ATLANTA J. C ONST, Aug. 18, 2002, at G3.
94
Weaver v. Bonner, 309 F.3d 1312, 1321 (11th Cir. 2002) (striking down the provision of the Georgia
Code of Judicial Conduct that prohibited judges from personally soliciting campaign contributions; in
doing so, the court stated “the distinction between judicial elections and other types of elections has been
greatly exaggerated, and we do not believe that distinction, if there truly is one, justifies greater restriction
on speech during judicial campaigns than during other types of campaigns”).

272

Code of Judicial Conduct allows “[c]andidates, including an incumbent judge, for a
judicial office [to] personally solicit campaign contributions.”95 The Commentary to the
Georgia Code of Judicial Conduct encourages candidates to establish a committee to
“secure and manage the expenditure of funds for their campaigns,”96 but it does not
restrict them from soliciting funds from individuals or organizations that could have an
interest in the cases the candidate will decide as a judge.97
In addition to requiring judges be elected in nonpartisan elections, the Georgia
Constitution grants the Governor the sole authority to fill any judicial vacancy that arises
at any time prior to the expiration of the term of office. 98 The Governor may, but is not
required to, fill the vacancy from a list of nominees created by the JNC. The impact of
the Governor’s power to fill judicial vacancies by appointment was discussed by the
United States District Court for the Southern District of Georgia in Brooks v. State Board
of Education,99 in which the court stated that “[t]he vast majority of judges in this state
have reached the bench via appointment.”100
This process of filling judicial vacancies by appointment results in the Governor and the
JNC choosing who will serve as a judge. It also grants the appointed judge the advantage
of running for reelection as an incumbent. On this issue, the United States District Court
for the Southern District of Georgia stated as follows: “[a]ll judges and justices are
subject to challenge in open elections . . . In reality, however, few incumbents are
actually challenged in contested elections, and, of the few incumbents who are
challenged, even fewer are defeated at the polls.”101
Regardless of whether a candidate is running for election or reelection, however, judicial
campaigns in the State of Georgia have become increasingly politicized.102 In fact, in

95

GA. C ODE OF JUD . C ONDUCT Canon 7(B)(2) (2005).
GA. C ODE OF JUD . C ONDUCT Canon 7(B)(2) cmt. (2005).
97
ABA C OMM’N ON THE 21TH CENTURY JUDICIARY, JUSTICE IN JEOPARDY 70 (2003).
98
See G A. C ONST. art. V, § 2, para. 8 (stating vacancies will be filled by the Governor “unless otherwise
provided by this Constitution or by law”); GA. C ONST. art. VI, § 7, para. 3 (noting vacancies will be
appointed by the Governor “except as otherwise proved by law in the magistrate, probate, and juvenile
courts”).
99
Brooks v. State Bd. of Elections, 848 F. Supp. 1548 (S.D. Ga. 1994).
100
Brooks, 848 F. Supp. at 1557; see also Steve Visser, Bowers: Governor Can Skirt Vote On Judges ExSolicitor Asks Place On Ballot, A TLANTA J. CONST., July 16, 2002, at D7 (stating that former Attorney
General Michael Bowers argued in a federal court that the “current interpretations of Georgia's Constitution
are so flawed that governors can circumvent the election of judges”).
101
Brooks, 848 F. Supp. at 1557; see also Don Plummer & Bill Rankin, Judges’ Ace: Incumbency on the
Bench: Most Jurists Are Re-elected, Fending Off Aggressive Campaign Attacks, ATLANTA J. C ONST., July
25, 2004, at C5 (noting “[e]ven though it appeared to be open season on sitting judges . . . only one highranking incumbent judge lost statewide”).
102
See, e.g., Brian Basinger, Perdue Looks at Partisan Judicial Races, AUGUSTA C HRON., May 24, 2005,
at B02 (stating that Gov. Perdue said that “he could see himself supporting a constitutional amendment to
turn future Georgia judicial elections into partisan contests because of the increasingly political nature of
such races”); Jim Wooten, Our Opinion: Voters in Dark on Judge Races, ATLANTA J. C ONST., Nov. 28,
2004, at G6 (discussing the direct expenditures by political parties on judicial campaigns).
96

273

light of the “increasingly political nature of [judicial] elections,” Governor Sonny Perdue
said that “he could see himself supporting a constitutional amendment to turn future
Georgia judicial elections into partisan contests,” although he “said that he did not
support the change ‘at this time,’ [but] ‘if we’re not able to take partisanship out of races .
. . I think we should open it up.’”103 An example of a recent politicized campaign is the
1998 campaign between Honorable Leah Sears and George M. Weaver,104 which resulted
in litigation and amendments to the Georgia Code of Judicial Conduct.
During the 1998 election, Mr. Weaver distributed a campaign brochure stating, in part,
“Justice Sears has called the electric chair ‘silly’” and later ran a television ad with a
similar message.105 In response to the campaign brochure, the JQC found that portions of
the brochure violated former Canon 7(B)(1)(d), prohibiting false, misleading, and
deceptive communications, and issued a private “cease and desist” order; and in response
to the television ad, the JQC issued a public reprimand and forwarded Mr. Weaver’s
materials to the State Bar of Georgia for disciplinary action.106 Mr. Weaver brought a
federal lawsuit against several of the members of the JQC alleging that former Canon
7(B)(1)(d) and the “cease and desist” order unconstitutionally interfered with free
speech.107 The Eleventh Circuit, in Weaver v. Bonner, agreed with Mr. Weaver, finding
that former Canon 7(B)(1)(d) “prohibits far more speech than necessary” and that the
issuance of the “cease and desist” order is “an impermissible prior restraint on protected
speech.”108 As a result, the Supreme Court of Georgia revised the Georgia Code of
Judicial Conduct in 2004, deleting former Canon 7(B)(1)(d) and removing any
prohibition against false statements negligently made and true statements that are
misleading or deceptive.109
Since Weaver, judicial candidates have campaigned on the issue of the death penalty and
other issues relating to the death penalty. In the Cobb County judicial race of 2004, a
judicial candidate challenging an incumbent superior court judge distributed campaign
literature featuring a picture of the current district attorney with the message, “I support
the death penalty, but some judges don’t. Consider Dorothy Robinson [the incumbent
judge].”110 In another 2004 judicial election, a judicial candidate running for an open seat
on the Georgia Court of Appeals ran television commercials characterizing his opponents
as “high-priced criminal defense lawyers [who] work for the kind of people they once
sent to jail.”111

103

Basinger, supra note 102.
Tribble, supra note 6, at 1065-66.
105
Weaver v. Bonner, 309 F.3d 1312, 1316-17 (11th Cir. 2002).
106
Id.
107
Id. at 1317.
108
Id. at 1321-23.
109
GA. C ODE OF JUD . C ONDUCT, as amended by Order of the Sup. Ct. of Ga. (Jan. 7, 2004).
110
Plummer & Rankin, supra note 101, at C5.
111
Jonathan Ringel, Mudslinging Judicial Campaign Draws Ethics Complaint, FULTON C OUNTY DAILY
REP., Nov. 1, 2004, at http://www.law.com/jsp/article.jsp?id=1098907065069 (last visited on Jan. 9,
2004); see also Tribble, supra note 6, at 1074.
104

274

Even though some judicial campaigns seem to focus on judicial candidates’ views on
criminal justice issues, it does not appear that the judicial appointment process is
influenced by judicial nominees’ purported views on the death penalty or on habeas
corpus. To the best of our knowledge, no potential JNC nominee has claimed that his/her
view on the death penalty or on habeas corpus precluded his/her appointment. On this
issue, Michael Bowers, the current chairman of the JNC, stated that during the terms of
Governors Sonny Perdue and Zell Miller, potential nominees were asked whether they
would have trouble administering the death penalty under the laws of Georgia, but
nominees’ personal opposition to the death penalty did not preclude their appointment as
long as they would be able to follow the law.112 Former Governor Roy Barnes, who
served a single term in office from 1999 to 2003, said neither he nor members of his JNC
inquired into a potential nominee’s views on the death penalty.113
Because the State of Georgia is not currently examining the fairness of the judicial
appointment/election process or undertaking a public education effort to inform the
public about the importance of judicial independence to the fair administration of justice
and the effect of unfair practices in compromising the independence of the judiciary, it
fails to meet the requirements of Recommendation # 1.
B. Recommendation #2
A judge who has made any promise—public or private—regarding his or her
prospective decisions in capital cases that amounts to prejudgment should not
preside over any capital case or review any death penalty decision in the
jurisdiction.

The Code of Judicial Conduct prohibits judicial candidates and judges from making
statements that may impact current and/or future decisions. Canon 7 states that judicial
candidates may not “make statements that commit the candidate with respect to issues
likely to come before the court.”114 Similarly, Canon 3 states that judges must refrain
from making any public comment that “might reasonably be expected to affect [a court
proceeding’s] outcome or impair its fairness or make any non-public comment that might
substantially interfere with a fair trial or hearing” at any time while a proceeding is
pending or impending in any court, including during any appellate process and until final
disposition.115

112

See Telephone Interview with Michael Bowers, Chairman, Judicial Nominating Commission (Sept. 29,
2005) (on file with author); see also Email from Harold Melton, Exec. Counsel to Gov. Sonny Perdue, to
Colby Jones, Student, Georgia State University College of Law (Oct. 27, 2004) (on file with author)
(noting that a potential nominee’s views on the “legality of any subject have not been discussed or played a
role in any appointments”).
113
See E-mail Interview with Roy Barnes, Former Governor of Georgia (Oct. 18, 2004) (on file with
author).
114
GA. C ODE OF JUD . C ONDUCT Canon 7(B)(1)(b) (2005).
115
GA. C ODE OF JUD . C ONDUCT Canon 3(B)(9) cmt. (2005).

275

Despite Canons 3 and 7, judicial candidates continue to campaign on their views of the
death penalty (as illustrated under Recommendation #1) without any apparent
ramifications. Since the JQC was created in 1973, only one judicial candidate, George
M. Weaver, has been publicly reprimanded by the JQC and reported to the State Bar of
Georgia for comments made during a judicial campaign that relate to the death penalty,116
and no ethics proceedings have been initiated against a judge in connection with him/her
presiding over a death penalty case.117 Complaints to the JQC, however, are
confidential,118 so complaints could have been filed and acted upon privately but not
discussed publicly.119
Based on this information, it is unclear whether the State of Georgia is taking sufficient
steps to preclude judges, who make promises regarding their prospective decisions in
capital cases that amount to prejudgment, from presiding over capital cases or from
reviewing any death penalty decision in the jurisdiction.
C. Recommendation #3
Bar associations and community leaders should speak out in defense of sitting
judges who are criticized for decisions in capital cases, particularly when the judges
are unable, pursuant to standards of judicial conduct, to speak out themselves.
a. Bar associations should educate the public concerning the roles and
responsibilities of judges and lawyers in capital cases, particularly
concerning the importance of understanding that violations of
substantive constitutional rights are not “technicalities” and that judges
and lawyers are bound to protect those rights for all defendants.
b. Bar associations and community leaders publicly should oppose any
questioning of candidates for judicial appointment or re-appointment
concerning the percentages of capital cases in which they have upheld
the death penalty.

116

th

Weaver v. Bonner, 309 F.3d 1312, 1316-17 (11 Cir. 2002) (noting that Weaver first received a private
“cease and desist” order concerning the contents of his campaign brochure, which stated, in part, “Justice
Sears has called the electric chair ‘silly,’” before he received a public reprimand in response to his
television ad with a similar message; the Eleventh Circuit found the “cease and desist” order to be
unconstitutional); see also Tribble, supra note 6, at 1048-53.
117
Telephone Interview with Cheryl Custer, Executive President, Georgia Judicial Qualifications
Commission (October 18, 2004). Three judges, however, have been removed from office in the last ten
years for other reasons. See Patrick Emery Longan, Judicial Professionalism in a New Era of Judicial
Selection, 56 MERCER L. R EV. 913, 942 (2005).
118
Custer, supra note 117.
119
See Lucy Soto, Spotlight/Every Monday: Most Verdicts in Judges’ Cases Are Reached in Camera
Since 1994, Only 3 Percent of Actions by the Judicial Qualifications Commission Has Been in Public,
ATLANTA J. C ONST., Oct. 2, 2000, at B1 (noting that the Georgia Judicial Qualifications Commission
reprimands jurists mainly in private).

276

c. Purported views on the death penalty or on habeas corpus should not be
litmus tests or important factors in the selection of judges.

We did not obtain sufficient information to appropriately assess the role of bar
associations and community leaders in fulfilling the requirements of Recommendation
#3.
We note, however, that in April 2004, former ABA President Bill Ide formed the
“Georgia Committee for Ethical Judicial Campaigns” (the Committee) to monitor
“campaigns for the bench.”120 The Committee asks every judicial candidate for a
statewide race to pledge to abide by the rules struck down in Weaver v. Bonner121 and to
agree not to say anything that would “lead voters to believe that [the judicial candidate]
will decide any issues or cases in a predetermined manner.” 122 Shortly after its creation,
the Committee publicly criticized Georgia Court of Appeals candidate Howard Mead for
his television ads depicting his opponents as “high-priced criminal defense lawyers . . .
[who now] work for the kind of people they once sent to jail [when they were
prosecutors].”123
D. Recommendation # 4
A judge who observes ineffective lawyering by defense counsel should inquire into
counsel's performance and, where appropriate, take effective actions to ensure that
the defendant receives a proper defense.

Recommendation # 5
A judge who determines that prosecutorial misconduct or other activity unfair to
the defendant has occurred during a capital case should take immediate action
authorized in the jurisdiction to address the situation and to ensure that the capital
proceeding is fair.

Neither the O.C.G.A. nor the Georgia Code of Judicial Conduct explicitly mentions the
appropriate course of action that judges should take when confronted with “ineffective
lawyering” by defense counsel or “prosecutorial misconduct.” Both the O.C.G.A. and
Georgia Code of Judicial Conduct, however, require judges to take some kind of action
when attorneys make prejudicial statements before the court.124 The Georgia Code of
Judicial Conduct also advises judges to “take appropriate action” when they receive
information indicating a “substantial likelihood” that an attorney has committed a

120

Jonathan Ringel, Lawyers Form Watchdog Group to Eye Judicial Races, F ULTON COUNTY DAILY
REP., April 23, 2004, at 1; Bill Rankin, Group to Be Watchdog of Judicial Campaigns, A TLANTA J. C ONST.,
April 23, 2004, at D7.
121
Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).
122
Ringel, supra note 120, at 1.
123
Ringel, supra note 111.
124
GA. C ODE OF JUD . C ONDUCT Canon 3(B)(6) (2005); O.C.G.A. § 17-8-75 (2005).

277

violation of the Standards of Conduct of the State Bar of Georgia. 125 Appropriate action
includes: “direct communication with the . . . [attorney] who has committed the violation,
or other direct action if available, and reporting the violation to the appropriate authority
or other agency or body.” 126 If an attorney’s violation of the Standards of Conduct raises
a “substantial question of the [attorney’s] fitness as a[n] [attorney] and . . . the violation is
actually known to the [] judge,” the judge must report the violation to the State Bar of
Georgia.127
We were unable to ascertain the types of measures taken by judges to remedy the harm
caused by “ineffective lawyering” by defense counsel or “prosecutorial misconduct” or to
prevent harm from occurring in the future.
E. Recommendation # 6
Judges should do all within their power to ensure that defendants are provided with
full discovery in all capital cases.

Neither the O.C.G.A. nor the Code of Judicial Conduct explicitly requires judges to
ensure that defendants are provided with full discovery in all capital cases, but Canon 3
requires judges to be “faithful to the law” and perform their judicial duties fairly and
impartially,128 which one could argue would include enforcing existing discovery laws
and ensuring that defendants are provided with full discovery in capital cases.
Additionally, in certain instances, the O.C.G.A. explicitly requires judges to enforce the
requirements of “reciprocal discovery.” The Georgia Legislature, in 1994, adopted the
Criminal Procedure Discovery Act, in an effort to provide for the “comprehensive
regulation of discovery and inspection in criminal cases.”129 In all criminal cases,
including capital cases,130 in which at least one felony offense is charged, defendants may
elect to participate in “reciprocal discovery” of witnesses, statements, reports, and
evidence.131 If the defendant elects to participate, but s/he or the state fails to comply
125

GA. C ODE OF JUD. C ONDUCT Canon 3(D)(2) (2005). For examples of how defense counsel and
prosecutors can violate the Standards of Conduct of the State Bar of Georgia, see GA. R ULES OF P ROF’ L
CONDUCT R. 1.1 (requiring lawyers to provide competent representation to their clients; noting that the
maximum penalty for violating Rule 1.1 is disbarment), and G A. R ULES OF PROF ’L C ONDUCT R. 3.8
(highlighting the special responsibilities of a prosecutor, including the disclosure of evidence to defense
counsel, while noting that the maximum punishment for a violation of Rule 3.8 is a public reprimand).
126
GA. C ODE OF JUD . C ONDUCT Canon 3(D)(2) cmt. (2005).
127
Id.
128
GA. C ODE OF JUD . C ONDUCT Canon 3 (2005).
129
1994 Ga. Laws 1252. Prior to 1994, the State of Georgia did not have any comprehensive statute or
rule pertaining to discovery in criminal cases. See State v. Lucious, 518 S.E.2d 677, 679 (Ga. 1999).
130
If a capital defendant opts to participate in reciprocal discovery, it will apply to both the
guilt/innocence phase and the sentencing phase, but not to pre-sentencing hearings. See O.C.G.A. § 17-162(e) (2005).
131
O.C.G.A. §§ 17-16-2, -4 (2005). In cases in which at least one felony is charged which was docketed,
indicted, or in which an accusation was returned prior to January 1, 1995, the defendant may participate in
reciprocal discovery only if both the defendant and the prosecuting attorney agree in writing to participate.

278

with the requirements of “reciprocal discovery,”132 the judge has the discretion to order
the non-complying party to allow the discovery or inspection of discoverable materials,133
or upon a showing of “prejudice and bad faith,” the judge has the discretion to prohibit
the introduction of the undisclosed evidence or prohibit the undisclosed witnesses from
testifying.134 On the issue of judicial discretion to remedy a party’s noncompliance with
the statute, Georgia courts have found that “in enacting [the reciprocal discovery] statute,
the legislature did not impose a rigid formulation or grant an exclusive remedy for a
defendant or a fatal consequence to the State for failure to comply with the discovery
mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to
ensure a fair trial.” 135
In cases in which the defendant does not elect to participate in “reciprocal discovery,” the
defendant is only entitled to the discovery afforded “by the Georgia and United States
Constitutions, statutory exceptions to the Act, and non-conflicting rules of court.”136 This
does not include discovery of the state’s scientific reports, scientific work product, or trial
witness lists.137
Although it appears that the discovery available to defendants who do not opt into the
reciprocal discovery statute is extremely limited, we were unable to obtain sufficient
information to assess whether judges are doing all within their power ensure that these
defendants are provided with full discovery in capital cases. Similarly, we were unable to
assess whether judges are doing all within their power to enforce the requirements of
reciprocal discovery to ensure full discovery in capital cases.

See O.C.G.A. § 17-16-2(e) (2005). If such defendant does not opt to participate in reciprocal discovery,
s/he has a right to the discovery afforded in sections 17-16-20 through 17-16-23 of the Official Code of
Georgia Annotated. See O.C.G.A. §§ 17-16-20, -21, -22, -23 (2005).
132
The requirements for participating in “reciprocal discovery” are listed in sections 17-16-4 through 1716-8 of the Official Code of Georgia Annotated. See O.C.G.A. §§ 17-16-4, -5, -6, -7, -8 (2005).
133
O.C.G.A. § 17-16-6 (2005).
134
Id.
135
Clark v. State, 610 S.E.2d 165, 168 (Ga. Ct. App. 2005) (citing Blankenship v. State, 494 S.E.2d 758
(Ga. Ct. App. 1997)).
136
State v. Lucious, 518 S.E.2d 677, 681 (Ga. 1999).
137
Id.; Blevins v. State, 606 S.E.2d 624, 628 (Ga. Ct. App. 2004) (noting that the defendant is entitled to
the list of witnesses from the grand jury).

279

280

CHAPTER TWELVE
THE TREATMENT OF RACIAL AND ETHNIC MINORITIES
INTRODUCTION TO THE ISSUE
In the past twenty-five years, numerous studies evaluating decisions to seek and to
impose the death penalty have found that race is all too often a major explanatory factor.
Most of the studies have found that, holding other factors constant, the death penalty is
sought and imposed significantly more often when the murder victim is white than when
the victim is African-American. Studies also have found that in some jurisdictions, the
death penalty has been sought and imposed more frequently in cases involving AfricanAmerican defendants than in cases involving white defendants. The death penalty
appears to be most likely in cases in which the victim is white and the perpetrator is
black.
In 1987, the U.S. Supreme Court held in McCleskey v. Kemp1 that even if statistical
evidence revealed systemic racial disparity in capital cases, this would not amount to a
federal constitutional violation in and of itself. At the same time, the Court invited
legislative bodies to adopt legislation to deal with situations in which there is systematic
racial disparity in death penalty implementation.
The pattern of racial discrimination reflected in McCleskey persists today in many
jurisdictions, in part because courts often tolerate actions by prosecutors, defense
lawyers, trial judges, and juries that can improperly inject race into capital trials. These
include intentional or unintentional prosecutorial bias when selecting cases in which to
seek the death penalty; ineffective defense counsel who fail to object to systemic
discrimination or to pursue discrimination claims; and discriminatory use of peremptory
challenges to obtain all-white or largely all-white juries.
There is little dispute about the need to eliminate race as a factor in the administration of
the death penalty. To accomplish that, however, requires that we identify the various
ways in which race infects the administration of the death penalty and that we devise
strategies to root out discriminatory practices. Until that time, executions should not
proceed.

1

481 U.S. 279 (1987).

281

I. FACTUAL DISCUSSION
The issue of racial and ethnic discrimination in the administration of the death penalty
was brought to the forefront of the death penalty debate in the State of Georgia by the
United States Supreme Court’s decision in McCleskey v. Kemp.2 Relying on a study
conducted by David Baldus, Charles Pulaski, and George Woodwroth (“the Baldus
study”), McCleskey challenged the constitutionality of Georgia’s capital sentencing
process by arguing that it was applied in a racially discriminatory manner because blacks
convicted of killing whites were found to have the greatest likelihood of receiving the
death penalty, while whites convicted of killing blacks were rarely sentenced to death.3
The Court rejected McCleskey’s claims, finding that the figures evidencing racial
discrepancies in the administration of the death penalty did not prove the existence of
intentional racial discrimination in McCleskey’s case.4
On February 1, 1993, just five years after the Court’s decision in McCleskey, the Georgia
Supreme Court established the Commission on Racial and Ethnic Bias in the Court
System (Commission) to:
1.

2.

3.
4.

Ascertain the perception of the public and the courts on the treatment of
minorities and ethnic groups, as well as examine courtroom treatment and
the extent to which minorities and ethnic groups voluntarily use the court
system.
Study the administration and personnel policies of the courts, particularly
looking at the representation of minorities and ethnic groups. Also,
review the selection and employment processes for judicial and
nonjudicial positions.
Investigate the impact of bias in both the criminal and civil justice
processes.
Review any other areas it deems appropriate to complete its investigation.5

The Commission collected information on these issues through a number of avenues,
including public hearings, forums, interviews, surveys, and preexisting studies.6 The
Commission’s investigation resulted in a number of findings evidencing that “there are
still areas within the state where members of minorities, whether racial or ethnic, do not
receive equal treatment from the legal system.”7 The Commission’s report, Let Justice be
Done: Equally, Fairly, and Impartially, which was released in August 1995, discussed
the Commission’s findings and included over 100 recommendations focusing on

2

Id.
Id. at 291-92
4
Id. at 297.
5
See Georgia Supreme Court Commission on Racial and Ethnic Bias in the Court System, Let Justice
Be Done: Equally, Fairly, and Impartially, 12 GA. ST. U. L. R EV. 687, 695 (1996) [hereinafter Commission
on Racial and Ethnic Bias].
6
Id. at 695.
7
Id. at 699.
3

282

correcting the identified problems and educating the public about the workings of the
court system.8
The Commission’s investigation of the criminal justice processes, however, did not
include an assessment of the impact of racial bias in the administration of the death
penalty. On this issue, the Commission stated as follows:
The large number of factors involved in a death penalty decision, as
pointed out in the Baldus study, combined with the numerous entities
involved in these decisions, as noted by Justice Powell in McCleskey, are
beyond the resources of the Commission to adequately assess. Nor can this
Commission solve the political debate over the appropriateness of the use
of the death penalty in our society. Instead, we have sought to concentrate
on how justice system participants can be well informed as to the data,
how the adversary process can be improved to equalize resources of the
defense and prosecution, how to ensure that only legal factors are used in
justice system decision-making, and how to obtain the best representative
and least biased individuals as justice system officials and jurors. The
other recommendations throughout this report should help to achieve these
goals.9
Following the release of the Commission’s report, the Georgia Supreme Court
established the “Commission on Equality,”10 which was recently renamed as the
“Georgia Commission on Access and Fairness in the Courts,”11 to implement the
Commission’s recommendations.12
The extent to which the Commission’s
recommendations have been implemented will be discussed below in the Analysis
Section.

8

Id. at 781.
Id. at 801.
10
The Georgia Supreme Court established the “Commission on Equality” by combining the Commission
on Racial and Ethnic Bias in the Courts with the Committee for Gender Equality. See Judicial Branch of
Georgia,
Administrative
Office
of
the
Courts,
History,
at
http://www.georgiacourts.org/agencies/gcafc/index.html (last visited on Oct. 7, 2005).
11
The mission of the “Georgia Commission on Access and Fairness in the Courts” remains the same, but
“the name change reflects the expanded role of the Commission to address issues of fairness and
accessibility, including access for individuals with various forms of disabilities.” See Id.
12
Id. The Commission on Equality was also charged with implementing the recommendations made in
the Final Report of the Supreme Court Committee for Gender Equality. Id.
9

283

II. ANALYSIS
A. Recommendation #1
Jurisdictions should fully investigate and evaluate the impact of racial
discrimination in their criminal justice systems and develop strategies that strive to
eliminate it.

Between February 1, 1993 and August 1995, the State of Georgia, through the Georgia
Supreme Court’s Commission on Racial and Ethnic Bias in the Court System,
investigated the impact of racial bias in the criminal justice system and made
recommendations to “correct[] any problems or misconceptions that exist within the court
system and to assure equal opportunity and treatment now and in the future.”13 The
Commission’s investigation included but was not limited to legal representation, pre-trial
release, juries and jury pools, and sentencing,14 but it did not include an assessment of the
impact of racial discrimination in death penalty sentencing.
To perform the investigation, the Commission held six public hearings, conducted several
interviews and surveys, and reviewed a number of studies.15 Some of the Commission’s
observations and findings relevant to the criminal justice processes include:
1.

2.
3.

4.

5.

13
14
15
16
17
18
19

The proportion of racial and ethnic minorities in Georgia’s judiciary is far
smaller than the proportion of minorities in the State’s population (only
6% of Georgia’s 986 judges were African-American).16
The racial composition of the district attorneys’ and solicitors’ offices
does not reflect the demographics of Georgia’s population.17
Some anecdotal evidence suggested that racial and ethnic minorities are
more likely to plead guilty (even though they may perceive they have a
valid defense) without fully understanding the immediate and long-term
consequences.
The Commission’s Attorney Attitude Survey indicated that unnecessary
and inappropriate references to race and ethnicity have been made during
criminal trials.18
There is a perception among lawyers and lay persons alike that lawyers on
occasion wrongfully use peremptory strikes to remove potential jurors
from jury panels for racial reasons.19

See Commission on Racial and Ethnic Bias, supra note 5, at 694.
Id.
Id. at 695-96.
Id. at 711.
Id. at 781.
Id. at 783.
Id. at 813.

284

6.

The Commission expressed concern over the fact that “the number of
persons receiving a death sentence or charged with a death penalty offense
is disproportionately African-American.”20

For each of these findings, the Commission provided a corresponding recommendation.
For example, with respect to #1, the Commission made the following recommendation:
“All judges, attorneys, and court personnel should not make any reference to race,
ethnicity, religion, or other such factors unless directly relevant and necessary for the
case at hand.”21 Similarly, in an effort to address the concerns of #2, the Commission
recommended, “District attorneys’ and solicitors’ offices, as well as public defenders’
offices, should be encouraged to increase efforts at hiring racial and ethnic minority
personnel throughout all employment levels in their offices.”22
Although the Commission’s report included a number of findings and recommendations,
the number of recommendations that have effectively been implemented in the State of
Georgia is questionable. For example, as of 2002, the percentage of Georgia judges who
were African-American remained the same; 23 only 6 percent of all Georgia judges were
black, which is far short of the 28 percent of the overall state population.24 Similarly, as
of August 1998, fifty-five of the 119 inmates on Georgia’s death-row were black and of
the 88 persons awaiting death penalty trial, 53 were black males, 26 were white males, 2
were black females, 4 were white females, and 3 were Hispanic males.25 Based on this
information, it appears that the State of Georgia needs to reexamine the impact of racial
discrimination in the criminal justice system, thoroughly investigate the impact of racial
discrimination in capital sentencing, and develop new strategies to eliminate racial
discrimination.
Given that the State of Georgia has previously examined the impact of racial
discrimination in its criminal justice system, but needs to develop new strategies that
strive to eliminate the impact of racial discrimination, the State of Georgia is only in
partial compliance with Recommendation #1.

20

Id. at 799.
Id. at 738; see also id. at 781 (recommending on the issue of diversity among prosecutors that
“[d]istrict attorneys’ and solicitors’ offices, as well as public defenders’ offices, should be encouraged to
increase efforts at hiring racial and ethnic minority personnel throughout all employment levels in their
offices” ).
22
Id. at 782.
23
See Walter C. Jones, The Percentage of Georgia Judges Who Are Black Remains Small, SAVANNAH
MORNING N EWS, May 19, 2002.
24
See id.
25
Michael Mears, Georgia Capital Defender Office, Georgia Needs a Racial Justice Act, at
http://www.gacapdef.org/docs/articles_mears_racial_justice_act.htm (last visited on Oct. 7, 2005).
21

285

B. Recommendation #2
Jurisdictions should collect and maintain data on the race of defendants and
victims, on the circumstances of the crime, on all aggravating and mitigating
circumstances, and on the nature and strength of the evidence for all potentially
capital cases (regardless of whether the case is charged, prosecuted, or disposed of
as a capital case). This data should be collected and maintained with respect to
every stage of the criminal justice process, from reporting of the crime through
execution of the sentence.

To the best of our knowledge, the State of Georgia is not currently collecting or
maintaining data on the race of defendants and victims, on the circumstances of the
crime, on all aggravating and mitigating circumstances, and on the nature and strength of
the evidence for all potentially capital cases at all stages of the proceedings. The State of
Georgia, however, does require trial judges to complete “trial judge reports” in cases in
which a sentence of death is imposed.26 The trial judge report, which is a multi-page
questionnaire, requires judges to provide information on the race of the defendant and
victim, the circumstances of the offense, the aggravating and mitigating circumstances,
and whether race was an issue at trial,27 but it does not request information on the nature
or strength of the evidence.
Additionally, the Georgia Department of Corrections collects data on and compiles
monthly profiles of the prisoners currently serving death sentences.28 The profiles consist
of the following data: age, race, marital status, parental status, religious affiliation, home
county, socioeconomic class, childhood environment (rural vs. urban), guardian status as
child, employment before prison, age at admission to prison, disciplinary records, number
of transfers or escape attempts, education attained, testing and IQ score, substance abuse
data, mental and physical health data, criminality and substance abuse in family, abuse as
a child, absenteeism of parents as a child, and the results of HIV and tuberculosis tests.29
These profiles do not include information on the race of victim, aggravating or mitigating
circumstances, or on the nature and strength of evidence presented at trial.
Interestingly, the Commission on Racial and Ethnic Bias in the Court System discussed
in its report the State of Georgia’s collection (or lack thereof) of criminal data.
Specifically, the report stated that “[t]here is a pervasive lack of adequate [criminal] data
from which conclusions and policy decisions could be made. The Commission had
26

See O.C.G.A. § 17-10-35(a) (2004); Green v. State, 242 S.E.2d 587 (Ga. 1978) (placing duty upon trial
judge, not defendant, in death penalty case to prepare trial report).
27
Supreme Court of Georgia, Unified Appeal Report of the Trial Judge, at
http://www2.state.ga.us/Courts/Supreme/rules_UAP/uasect6.htm (last visited on Oct. 7, 2005).
28
Georgia
Department
of
Corrections,
Death
Penalty,
at
http://www.dcor.state.ga.us/CORRINFO/ResearchReports/DeathPenalty.html (last visited on Sept. 12,
2005).
29
Georgia
Department
of
Corrections,
Inmate
Statistical
Profile,
at
http://www.dcor.state.ga.us/pdf/uds05-08.pdf (last visited on Sept. 12, 2005).

286

wanted to investigate potential racial disparities among persons convicted for offenses
such as criminal trespass or simple burglary. Limitations in the available databases
precluded such analyses.”30 As a result of these findings, the Commission recommended
that “[a]ll criminal justice databases [] be re-designed so as to provide for substantial
policy analysis. These databases should begin to include information deemed relevant to
issues identified as sources of potential racial disparity (e.g., type of representation).”31 It
is unclear whether any state bodies, such as the Department of Corrections or the State
Board of Pardons and Paroles, have re-designed their respective databases to include
“information deemed relevant to issues identified as sources of potential racial disparity.”
The State of Georgia, therefore, is only in partial compliance with Recommendation #2,
as it only collects trial level data on defendants sentenced to death and does not collect
data for all potential capital cases at every stage of the proceedings.
C. Recommendation #3
Jurisdictions should collect and review all valid studies already undertaken to
determine the impact of racial discrimination on the administration of the death
penalty and should identify and carry out any additional studies that would help
determine discriminatory impacts on capital cases. In conducting new studies,
states should collect data by race for any aspect of the death penalty in which race
could be a factor.

To the best of our knowledge, the State of Georgia is not currently collecting and
reviewing all valid studies already undertaken to determine the impact of racial
discrimination on the death penalty nor is it identifying and carrying out any additional
studies that would help determine discriminatory impacts on capital cases. Ten years
ago, when investigating the impact of racial bias in the criminal justice system, the
Commission on Racial and Ethnic Bias in the Court System reviewed certain studies that
had already been undertaken, including some focusing on the death penalty,32 but it did
not review all valid studies already undertaken to assess the impact of racial bias on the
administration of the death penalty nor did it collect data by race for any aspect of the
death penalty.33 Based on this information, the State of Georgia is not in compliance
with Recommendation #3.

30

Commission on Racial and Ethnic Bias, supra note 5, at 788.
Id. at 790
32
Id. at 766, 799 (referencing the following studies: a 1990 study conducted by the Sentencing Project, a
1993 Sociological Quarterly paper by J. Kramer and D. Steffensmeir, and the Baldus Study).
33
Id. at 801 (noting that “[t]he large number of factors involved in a death penalty decision, as pointed
out in the Baldus study, combined with the numerous entities involved in these decisions, as noted by
Justice Powell in McCleskey, are beyond the resources of the Commission to adequately assess”) (emphasis
added).
31

287

D. Recommendation #4
Where patterns of racial discrimination are found in any phase of the death penalty
administration, jurisdictions should develop, in consultation with legal scholars,
practitioners, and other appropriate experts, effective remedial and prevention
strategies to address the discrimination.

“[A]s of May 3, 1995, there were 106 persons awaiting execution on death row in
Georgia. Of these inmates 60 are white and 46 are black. One hundred twenty-two
persons were awaiting trial on death penalty offenses as of June 1995. The racial
composition of these individuals included 63 black males, 45 white males, one black
female and one white female (race was unknown for twelve males).” 34 Referencing
these figures, the Commission on Racial and Ethnic Bias in the Court System
(Commission) expressed “concern” in its report over the fact that “the number of persons
receiving a death sentence or charged with a death penalty offense is disproportionately
African-American.” 35 The Commission, however, did not recommend any remedial or
preventive strategies to address these racial disparities.
Since the release of the Commission’s report in August 1995, it does not appear as if the
racial disparities identified as a “concern” by the Commission have at all diminished. A
recent study that reviewed death sentencing in Georgia between 1989 and 1998 found
that “both the race of the defendant and the race of the victim predict who is sentenced to
death [in Georgia], with white suspects and those who kill white victims being more
likely to be sentenced to death than black defendants and those who kill black victims.”36
The study also found that “those suspected of killing whites are 4.56 times as likely to be
sentenced to death as those who are suspected of killing blacks.”37 Despite these figures,
it does not appear that the State of Georgia is currently developing remedial and
preventative strategies to address the apparent racial disparities in the administration of
the death penalty. The State of Georgia, therefore, fails to meet the requirements of
Recommendation #4.
E. Recommendation #5
Jurisdictions should adopt legislation explicitly stating that no person shall be put to
death in accordance with a sentence sought or imposed as a result of the race of the
defendant or the race of the victim. To enforce such a law, jurisdictions should
permit defendants and inmates to establish prima facie cases of discrimination based
upon proof that their cases are part of established racially discriminatory patterns.
If such a prima facie case is established, the State should have the burden of
rebutting it by substantial evidence.

34

Id. at 799.
Id.
36
Raymond Paternoster, Glen Pierce, & Michael Radelet, Race and Death Sentencing in Georgia, 19891998, in AMERICAN B AR ASSOCIATION , EVALUATING F AIRNESS AND A CCURACY IN S TATE D EATH PENALTY
SYSTEMS : T HE G EORGIA DEATH P ENALTY ASSESSMENT R EPORT app., at S-T (2006).
37
Id.
35

288

The State of Georgia has not adopted legislation explicitly stating that no person shall be
put to death in accordance with a sentence sought or imposed as a result of the race of the
defendant or the race of the victim. Therefore, the State of Georgia is not in compliance
with Recommendation #5. It should be noted, however, that during the 1999-2000 and
2003-2004 legislative sessions of the General Assembly, bills entitled the “Georgia
Racial Justice Act” were introduced, but on both occasions, the bill died before making it
to the House floor for a vote.38
F. Recommendation #6
Jurisdictions should develop and implement educational programs applicable to all
parts of the criminal justice system to stress that race should not be a factor in any
aspect of death penalty administration. To ensure that such programs are effective,
jurisdictions also should impose meaningful sanctions against any State actor found
to have acted on the basis of race in a capital case.

The State of Georgia, through the Georgia Commission on Access and Fairness in the
Courts, has implemented educational programs and materials dealing with race. Among
the educational materials is a video and teaching guide entitled, “Let Justice Be Done,”39
which aims to increase racial sensitivity among judges and other leaders in the judicial
system,40 and two handbooks entitled, “Guide to Bias-Free Communication,” which
contains several suggestions for bias-free communication, and the “Court Conduct
Handbook,” which is to be used by all court personnel in an effort to eliminate bias in all
forms from Georgia’s courts.41
Additionally, a number of law enforcement organizations and certification bodies
recommend or require that law enforcement agencies adopt policies on racial sensitivity.
For example, the Commission on Accreditation for Law Enforcement Agencies
(CALEA) and the Georgia Law Enforcement Certification Program (GLECP)42 require

38

H.B. 129, Georgia Racial Justice Act, Gen. Assem., 2003-04 Sess. (Ga. 2003), available at
http://www.legis.state.ga.us/legis/2003_04/sum/hb129.htm (last visited on Oct. 7, 2005); H.B. 137,
Georgia Racial Justice Act, Gen. Assem., 1999-2000 Sess. (Ga. 1999), available at
http://www.legis.state.ga.us/legis/1999_00/leg/fulltext/hb137.htm (last visited on Oct. 7, 2005).
39
Publications available through the Administrative Office of the Courts, Judicial Branch of Georgia,
Georgia
Commission
on
Fairness
and
Access
in
the
Courts,
at
http://www.georgiacourts.org/agencies/gcafc/publications.html (last visited on Oct. 9, 2005).
40
Id. "Let Justice Be Done" has been presented to the Institute of Continuing Judicial Education of
Georgia, the Chief Justice’s Commission on Professionalism, the Atlanta Bar Judicial Section, and the
Tenth Annual Meeting of the National Consortium of Tasks Forces and Commissions on Racial and Ethnic
Bias in the Courts. Id.
41
Id.
42
Ninety police, sheriff’s, state law enforcement, transportation police, and university police departments
have obtained certification under the GLECP. G EORGIA LAW E NFORCEMENT C ERTIFICATION P ROGRAM:
STANDARDS MANUAL, at intro. (3d ed. 2002) [hereinafter GLECP S TANDARDS] (noting that the Georgia
Law Enforcement Certification Program was established in 1997 as a stepping-stone to national
accreditation under CALEA’s Standards for Law Enforcement Agencies); Georgia Association of Chiefs of

289

certified police departments, sheriff’s departments, state law enforcement agencies,
transportation police departments, and university police departments in Georgia to
establish a written directive that prohibits bias-based profiling and requires training on
how to avoid biased-based profiling.43
The Georgia Association of Chiefs of Police also has adopted a “Sample Law
Enforcement Operations Manual” (SLEOM), which contains professional standards and
requirements for law enforcement operations.44 These standards are meant only as a
sample policy that may be used in an individual law enforcement agency’s policy and
procedures manual and may be modified as appropriate.45 The SLEOM includes a
proposed policy for adoption by law enforcement agencies in Georgia that defines “racial
profiling” as “any law enforcement-initiated action that relies upon the race or ethnicity
of an individual, rather than the behavior of that individual.”46 This proposed policy also
suggests that adopting law enforcement agencies should “develop and deliver training to
all officers to provide guidance regarding the consideration of race and ethnicity in the
agency’s law enforcement activities.”47 The SLEOM also suggests that adopting law
enforcement agencies should “conduct periodic performance reviews of officer conduct
to insure compliance with this policy,” and subject those in violation of the policy to
disciplinary action.48 The extent to which Georgia law enforcement agencies have
adopted the SLEOM is unknown.
All Georgia “peace officers,”49 however, are statutorily required to meet certain criteria50
and complete a basic course51 at a Georgia Peace Officer Standards and Training Council

Police, State Certified Agencies, at http://www.gachiefs.com/statecertification/StateCertifiedAgencies.html
(last visited on Jan. 9, 2006).
43
GLECP S TANDARDS, supra note 42, at 7 (Standard 1.18).
44
See GA. ASS’N OF C HIEFS OF P OLICE, S AMPLE LAW ENFORCEMENT OPERATIONS MANUAL [hereinafter
SLEOM],
available
at
http://www.gachiefs.com/Sample%20LE%20Manual/VCH20Racial%20Profiling.doc (last visited on Oct.
14, 2005).
45
Id.
46
Id.
47
Id.
48
Id.
49
A “peace officer” is defined, for the purposes of this Section, as “an agent, operative, or officer of this
state, a subdivision or municipality thereof, . . . who, as an employee for hire or as a volunteer, is vested
either expressly by law or by virtue of public employment or service with authority to enforce the criminal
or traffic laws through the power of arrest and whose duties include the preservation of public order, the
protection of life and property, and the prevention, detection, or investigation of crime.” See O.C.G.A. §
35-8-2(8)(A) (2005).
50
O.C.G.A. § 35-8-8(a) (2005). One must (1) be at least 18 years of age; (2) be a citizen of the United
States; (3) have obtained a high school diploma or the recognized equivalent; (4) not have been convicted
of any state or federal felonies or sufficient misdemeanors to establish a pattern of disregard for the law; (5)
be fingerprinted for a background check; (6) possess good moral character; (7) complete an oral interview;
(8) be found free from an adverse physical, emotional, or mental condition; and (9) successfully complete
the basic training course entrance examination. Id.; see also GA. PEACE OFFICER S TANDARDS & TRAINING
COUNCIL R. 464-3-.02(a) (2005), available at http://www.gapost.org/5Trng.htm (last visited on Oct. 4,
2005)

290

(POST) certified academy.52 The mandatory basic course consists of 404 hours of
training, including such relevant areas as “cultural diversity.”53 “Cultural diversity”
instruction consists of training on racial sensitivity in all law enforcement activities.54
After the completion of basic training, all law enforcement officials must complete 20
hours of additional “cultural sensitivity” training each subsequent year.55
Although the Georgia Commission on Access and Fairness in the Courts offers programs
and materials on race, all of the programs and materials focus on the judicial branch
(judges and court personnel). Similarly, the POST Council mandates training regarding
“cultural diversity” only for all law enforcement officials. However, neither of these
programs directly pertain to the death penalty system, nor do they provide training to all
parts of the criminal justice system.
Additionally, CALEA and GLECP only pertain to certified police departments, sheriff’s
departments, state law enforcement agencies, transportation police departments, and
university police departments and the contents and scope of the training on racial
profiling is unknown. Moreover, although the SLEOM provides a sample policy for
prohibiting racial profiling, training law enforcement officials on the consideration of
race and ethnicity in the agency’s law enforcement activities, and disciplinary measures
for violation of the policy, the number of law enforcement agencies in Georgia that have
adopted this policy is unknown.
The State of Georgia, therefore, is only in partial compliance with Recommendation #6.
G. Recommendation #7
Defense counsel should be trained to identify and develop racial discrimination
claims in capital cases. Jurisdictions also should ensure that defense counsel are
trained to identify biased jurors during voir dire.

The State of Georgia does not require defense attorneys to participate in training to
identify and develop racial discrimination claims in capital cases and identify biased
jurors during voir dire.

51

O.C.G.A. § 35-8-9(a) (2005); GA. PEACE OFFICER STANDARDS & TRAINING C OUNCIL R. 464-3 -.03(a)
(2005), available at http://www.gapost.org/5Trng.htm (last visited on Oct. 4, 2005).
52
O.C.G.A. § 35-8-11 (2005).
53
GA. P EACE OFFICER STANDARDS & TRAINING C OUNCIL, 404 HOUR BASIC LAW ENFORCEMENT
TRAINING C OURSE (11th ed. 2003) [hereinafter POST COUNCIL B ASIC T RAINING C OURSE] (table of
contents), available at http://www.gapost.org/pdf_file/bletc404.pdf (last visited on Oct. 4, 2005) (The
curriculum for this training course, as produced by the POST Council, is the minimum level of instruction
and training for law enforcement officials required to be taught at POST-certified training academies.).
54
Telephone Interview with Ryan Powell, Director of Training, Georgia Peace Officer Standards and
Training Council (Oct. 12, 2005).
55
Id.

291

The Office of the Georgia Capital Defender, however, offers two major death penalty
seminars each year, both of which emphasize issues of race in capital litigation.56 The
Unified Appeal Procedure Checklist and the Georgia Public Defender Standards
Council’s Death Penalty Defense Standards57 also provide guidance to defense attorneys
on raising issues of racial bias during jury selection.58
Although training on issue of race in capital litigation may be available, the State of
Georgia does not require defense counsel to participate in training to specifically identify
and develop racial discrimination claims in capital cases and to identify biased jurors
during voir dire. The State of Georgia is, therefore, not in compliance with
Recommendation #7.
H. Recommendation #8
Jurisdictions should require jury instructions that it is improper to consider any
racial factors in their decision making and that they should report any evidence of
racial discrimination in jury deliberations.

On the issue of the impact of race on jurors’ decision making, the Commission on Racial
and Ethnic Bias in the Court System found as follows:
Over 81% of minority attorneys and 58% of whites shared the perception
that verdicts are influenced by jurors’ racial stereotypes. The following are
typical of the comments made by respondents.

56

See, e.g., Georgia Capital Defender, Annual Capital Defense Training Seminar, “We Who Believe In
Justice Cannot Resist,” Agenda (July 8-9, 2005) (on file with author).
57
In April 2005, the Georgia Public Defender Standards Council (GPDSC) adopted as the “GPDSC
Death Penalty Defense Standards,” the ABA Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases (ABA Guidelines). See G A. P UB. D EFENDER STANDARDS C OUNCIL,
DEATH PENALTY DEFENSE STANDARDS [hereinafter DEATH PENALTY DEFENSE STANDARDS ], at
http://www.gidc.com/cpdsystem-standards-death_penalty_case.pdf (last visited on Oct. 7, 2005); ABA
GUIDELINES FOR THE APPOINTMENT AND P ERFORMANCE OF D EATH P ENALTY C ASES , at
http://www.gpdsc.com/cpdsystem-standards-aba_dp_guidelines.pdf (last visited on Oct. 7, 2005); GA. P UB.
DEFENDER STANDARDS C OUNCIL, FINAL P AGE OF DEATH PENALTY D EFENSE S TANDARDS, at
http://www.gidc.com/cpdsystem-standards-death_penalty_case_final_page.pdf (last visited on Oct. 7,
2005). All standards adopted by the GPDSC that are determined by the General Oversight Committee to
have a “fiscal impact” are not effective until ratified by joint resolution of the General Assembly and upon
approval of the resolution by the Governor or upon its becoming law without his/her approval. See
O.C.G.A. 17-12-8(c) (2005). We have been told that the standards have been determined to have a “fiscal
impact,” thus requiring ratification by the General Assembly to become effective. See Fax from Chris
Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author); see also Georgia Public
Defender Standards Council, 2005 Legislative Session Report #8, at http://www.gpdsc.com/resourceslegislation-update_04-05-05.htm (last visited on Oct. 7, 2005) (noting the General Oversight Committee
“determined that all of the standards adopted [as of March 23, 2005] by the [GPDSC] have a fiscal
impact”).
58
GA.
U NIFIED A PPEAL
P.
C HECKLIST
pt.
I(I)(4),
(Q),
II(A),
available
at
http://www2.state.ga.us/Courts/Supreme/uasect5.htm (last visited on Jan. 9, 2006); DEATH P ENALTY
DEFENSE S TANDARDS, supra note 57 (ABA Guideline 10.10.2).

292

“Race, among other factors, is one of the factors jurors consider. I have
lost/won jury trials on this basis.”
“To the extent that a county is predominantly black, white, etc., the jury
pool will reflect that, and jurors seem to favor litigants of their own race.”
“White jurors favor white litigants. Black jurors favor black litigants over
white litigants.”
“A jury trial. Jurors carry bias into the courtroom.”59
Despite these findings, neither the Georgia Suggested Pattern Jury Instructions—
Criminal Cases nor Georgia case law requires jury instructions informing jurors that it is
improper to consider any racial factors in their decision making and that they should
report any evidence of racial discrimination in jury deliberations. The State of Georgia,
therefore, fails to meet the requirements of Recommendation #8.
I. Recommendation #9
Jurisdictions should ensure that judges recuse themselves from capital cases when
any party in a given case establishes a reasonable basis for concluding that the
judge’s decision making could be affected by racially discriminatory factors.

Canon 3 of the Georgia Code of Judicial Conduct requires judges to “disqualify
themselves in any proceeding in which their impartiality might reasonably be questioned,
including . . . where: the judge has a personal bias or prejudice concerning a party or a
party’s lawyer.”60 However, the number of judges who have actually disqualified
themselves due to racial bias or prejudice is unknown. Based on the report of the
Commission on Racial and Ethnic Bias in the Court System, it appears that some judges
have failed to properly disqualify themselves. The report notes that between 1972 and
about 1995, sixty-nine complaints alleging racial bias on the part of the judge were filed
with the Judicial Qualifications Commission (JQC).61 While of the sixty-nine complaints
sixty-five were found to be without merit, three resulted in private reprimand and one
resulted in formal action against a judge.62

59

Commission on Racial and Ethnic Bias, supra note 5, at 811 (emphasis added).
GA. CODE OF JUD. C ONDUCT Canon 3(E)(1)(a); see also GA. C ODE OF JUD . CONDUCT Canon 3(B)(5)
(requiring judges to perform their judicial duties without “bias or prejudice . . . including but not limited to
bias or prejudice based upon race”).
61
Commission on Racial and Ethnic Bias, supra note 5, at 730-31.
62
Id.; see also Stephen B. Bright, Challenging Racial Discrimination in Capital Cases, 21 C HAMPION
19, 21 (1997) (citing Isaacs v. State, 355 S.E.2d 644 (Ga. 1987), in which the Georgia Supreme Court “held
that a judge should be disqualified from a case because he actively opposed a motion to recuse him[self]”
without mentioning that “the motion to recuse was based primarily on the judge’s long history of racial
discrimination”).
60

293

Based on this information, Canon 3 does not appear to sufficiently ensure that judges
rightfully disqualify themselves. However, the Georgia Code of Judicial Conduct was
amended in 1994 to prevent racial bias and prejudice from influencing judicial decision
making. Specifically, Canon 3(B)(5) was amended to require judges to perform their
duties without “bias or prejudice . . . including but not limited to bias or prejudice based
upon race.” The effect of this amendment on judicial decision making combined with the
disqualification requirement is unknown. Thus, it is impossible to assess whether the
current Canon 3 sufficiently ensures that judges rightfully disqualify themselves, as
required by Recommendation #9.
J. Recommendation #10
States should permit defendants or inmates to raise directly claims of racial
discrimination in the imposition of death sentences at any stage of judicial
proceedings, notwithstanding any procedural rule that otherwise might bar such
claims, unless the State proves in a given case that a defendant or inmate has
knowingly and intelligently waived the claim.

The State of Georgia does not make any exceptions to the normal procedural rules for
claims of racial discrimination in the imposition of death sentences. Specifically, a
defendant’s failure to raise a claim of racial discrimination that could have been raised at
trial or on appeal will preclude review in a subsequent habeas corpus proceeding unless
the defendant can meet the “cause and prejudice test,”63 or the granting of his/her habeas
petition is necessary to avoid a “miscarriage of justice.”64 For example, all challenges to
the composition of a grand or traverse jury, including those based on race, are deemed
waived unless raised at the first proceeding after indictment or at any time thereafter as
designated by the court.65 Based on this information, the State of Georgia fails to comply
with Recommendation #10.

63

Black v. Hardin, 336 S.E.2d 754, 755 (Ga. 1985). In order to meet the “cause and prejudice”
exception, the petitioner must show adequate cause for failure to raise the claims at trial or pursue the claim
on appeal and show actual prejudice to the petitioner. See O.C.G.A. 9-14-48(d) (2004).
64
See Head v. Ferrell, 554 S.E.2d 155, 160-61 (Ga. 2001).
65
GA. UNIFIED APPEAL R. II(C )(5); Young v. State, 206 S.E.2d 439, 442 (Ga. 1974) (stating that “[t]he
procedure in this state has long required a criminal defendant to raise a challenge to the jury lists at the time
the jury is ‘put on him’ or else he waives his right to object”); Walraven v. State, 297 S.E.2d 278, 282 (Ga.
1982) (stating that “[f]ailure to announce at the first hearing that defendant does, in fact, intend to challenge
the array of the grand jury might ordinarily bar a subsequent challenge. In this case, however, the court
allowed appellant additional time to determine whether or not to make such a challenge”).

294

CHAPTER THIRTEEN
MENTAL RETARDATION, MENTAL ILLNESS, AND THE DEATH PENALTY
INTRODUCTION TO THE ISSUE
Mental Retardation
The ABA unconditionally opposes imposition of the death penalty on offenders with
mental retardation. In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme
Court held it unconstitutional to execute offenders with mental retardation.
This holding does not, however, guarantee that no one with mental retardation will be
executed. The American Association on Mental Retardation defines a person as mentally
retarded if the person's IQ (general intellectual functioning) is in the lowest 2.5 percent of
the population; if two or more of the person's adaptive skills are significantly limited; and
if these two conditions were present before the person reached the age of 18.
Unfortunately, some states do not define mental retardation in accordance with this
commonly accepted definition. Moreover, some states impose upper limits on IQ that are
lower than the range (approximately 70-75 or below) that is commonly accepted in the
field. In addition, lack of sufficient knowledge and resources often preclude defense
counsel from properly raising and litigating claims of mental retardation. And in some
jurisdictions, the burden of proving mental retardation is not only placed on the defendant
but also requires proof greater than a preponderance of the evidence.
Accordingly, a great deal of additional work is required to make the holding of Atkins,
i.e., that people with mental retardation should not be executed, a reality.
Mental Illness
Although mental illness should be a mitigating factor in capital cases, juries often
mistakenly treat it as an aggravating factor. States, in turn, often have failed to monitor
or correct such unintended and unfair results.
State death penalty statutes based upon the Model Penal Code list three mitigating factors
that implicate mental illness: (1) whether the defendant was under "extreme mental or
emotional disturbance" at the time of the offense; (2) whether "the capacity of the
defendant to appreciate the criminality (wrongfulness) of his conduct or to conform his
conduct to the requirements of law was impaired as a result of mental disease or defect or
intoxication"; and (3) whether "the murder was committed under circumstances which the
defendant believed to provide a moral justification or extenuation of his conduct."
Often, however, these factors are read to jurors without further explanation or without
any discussion of their relationship to mental illness. Without proper instructions, most
jurors are likely to view mental illness incorrectly as an aggravating factor; indeed,
295

research indicates that jurors routinely consider the three statutory factors listed above as
aggravating, rather than mitigating, factors in cases involving mental illness. One study
found specifically that jurors' consideration of the factor, "extreme mental or emotional
disturbance" in capital cases correlated positively with decisions to impose death
sentences.
Mental illness particularly weighs against a criminal defendant when it is considered in
the context of determining "future dangerousness," often a criterion for imposing the
death penalty. One study showed that a judge's instructions on future dangerousness led
mock jurors to believe that the death penalty was mandatory for mentally ill defendants.
In fact, only a small percentage of mentally ill individuals are dangerous, and most of
them respond successfully to treatment. But the contrary perception unquestionably
affects decisions in capital cases.
In addition, the medication of some mentally ill defendants in connection with their trials
often leads them to appear to be lacking in emotion, including remorse. This, too, can
lead them to receive capital punishment.
Mental illness can affect every stage of a capital trial. It is relevant to the defendant's
competence to stand trial; it may provide a defense to the murder charge; and it can be
the centerpiece of the mitigation case. Conversely, when the judge, prosecutor, and
jurors are misinformed about the nature of mental illness and its relevance to the
defendant's culpability and life experience, tragic consequences often follow for the
defendant.

296

I. FACTUAL DISCUSSION
A defendant charged with a capital offense may claim that s/he suffered or suffers from
any of the following three mental conditions: (1) mental retardation, (2) insanity at the
time of the offense, and/or (3) mental illness at the time of the offense.
A. Mental Retardation
Since 1989, the State of Georgia has prohibited the imposition and execution of death
sentences against all mentally retarded offenders.1 This prohibition occurred in two
stages; the first involved the Georgia’s Legislature adoption, in 1988, of statutory
provisions prohibiting the application of the death penalty against certain mentally
retarded offenders.
The second involved the Georgia Supreme Court’s 1989
constitutional ruling on this issue.
In 1988, Georgia became the first state to enact legislation prohibiting the execution of
the mentally retarded. Specifically, the Georgia Legislature amended the statute
pertaining to insanity and incompetency, section 17-7-131 of the O.C.G.A., by adding
three new provisions which: (1) required the resolution of the issue of mental retardation
during the guilt/innocence phase of a capital trial,2 (2) prohibited the imposition of the
death penalty against all defendants found “guilty but mentally retarded,” and (3)
provided for the imposition of life imprisonment for defendants found “guilty but
mentally retarded.”3 These provisions, however, only apply to cases in which the death
penalty is sought which commence “on or after” July 1, 1988,4 and not to inmates who
were on death row at the time the legislation was enacted.
Referencing these amendments to section 17-7-131 and the Georgia Senate’s plea to the
State Board of Pardons and Paroles to commute the death sentences of all mentally
retarded inmates as evidence of a state consensus against the execution of the mentally
retarded, the Georgia Supreme Court, in Fleming v. Zant,5 found that the execution of the
mentally retarded constituted cruel and unusual punishment under the Georgia
Constitution.6 The Court’s decision outlined the procedures for considering claims of
mental retardation raised by inmates whose death penalty cases commenced before July
1, 1988.7

1

O.C.G.A. § 17-7-131(a)(3)(C), (c)(3), (j) (2004).
See, e.g., Jenkins v. State, 498 S.E.2d 502, 509 (Ga. 1998) (citing O.C.G.A.§ 17-7-131(c)(3), and
noting that the issue of mental retardation must be resolved during the guilt/innocence phase).
3
O.C.G.A. § 17-7-131(a)(3), (c)(3), (j) (2004).
4
Fleming v. Zant, 386 S.E 2d 339, 340-41 (Ga. 1989).
5
Id. at 340, 341-42.
6
Id. at 342.
7
Id. at 342-43.
2

297

Although different procedures apply to claims of mental retardation based on when the
case commenced, the same definition of mental retardation applies to all death penalty
cases.8
1. Definition of Mental Retardation
The Georgia Code defines mental retardation as: (1) “significantly subaverage general
intellectual functioning,” (2) “resulting in or associated with impairments in adaptive
behavior,” which (3) “manifested during the developmental period.”9 The Georgia
Supreme Court has found “an IQ of 70 or below” to be “an indication of significantly
subaverage intellectual functioning.”10 However, the Georgia Supreme Court has further
indicated that an individual cannot be “‘positively’ classified as mentally retarded on the
basis of the score alone.”11 The Georgia Supreme Court has not defined “adaptive
behavior,” but does require impairments in adaptive behavior to occur before the age of
18.12
2. Procedures for Raising and Considering Mental Retardation Claims
To determine which procedures apply to each claim of mental retardation, the court must
refer to the timing of the capital trial’s guilt/innocence phase.13 If the guilt/innocence
phase occurred on or after July 1, 1988, then the procedures found in section17-7-131 of
the O.C.G.A. apply. Alternatively, if the guilt/innocence phase occurred before July 1,
1988, then the procedures outlined by the Georgia Supreme Court in Fleming v. Zant
apply.
a. Procedures for Trials Conducted on or after July 1, 1988
A defendant whose capital trial’s guilt/innocence phase began on or after July 1, 1988,
may raise the issue of mental retardation pre-trial, at trial, or post-trial.
i. Pre-Trial and Trial Determinations
A defendant whose capital trial’s guilt/innocence phase commenced on or after July 1,
1988 has the option to do any of the following: (1) plead “guilty but mentally retarded;”14
(2) plead not guilty and raise the issue of mental retardation during the guilt/innocence
phase of his/her capital trial;15 and/or (3) plead not guilty and present evidence of mental

8

Id. at 343.
O.C.G.A.§ 17-7-131(a)(3) (2004).
10
Perkinson v. State, 610 S.E.2d 533, 537-38 (Ga. 2005); Head v. Ferrell, 554 S.E.2d 155 (Ga. 2001);
Stripling v. State, 401 S.E.2d 500, 504 (Ga. 1991).
11
Williams v. State, 455 S.E.2d 836, 838 (Ga. 1995); Stripling, 401 S.E.2d at 504.
12
Head v. Stripling, 590 S.E.2d 122, 124 n.1 (Ga. 2003).
13
Stephens v. State, 509 S.E.2d 605, 609 (Ga. 1998).
14
O.C.G.A. § 17-7-131(b)(2) (2004).
15
O.C.G.A. § 17-7-131 (2004).
9

298

retardation in mitigation during the sentencing phase of his/her capital trial.16 Such
defendants have a right to counsel and may be eligible for appointed counsel, if they can
establish their indigency.17
If the defendant wishes to enter a plea of “guilty but mentally retarded,” the court must
assess whether there is a “sufficient” factual basis to support a finding that the defendant
is mentally retarded.18 To initiate this assessment, a licensed psychologist or psychiatrist
must examine the defendant.19 The court must then review the psychological or
psychiatric report(s) and hold a hearing on the issue of the defendant’s mental
condition.20 If the court is satisfied that there is a sufficient factual basis to find that the
defendant is mentally retarded, the court may accept the plea of “guilty but mentally
retarded”21 and sentence the defendant to imprisonment for life.22 Upon being sentenced
to life imprisonment, a copy of the psychological or psychiatric report(s) must be
forwarded to the Department of Corrections with the official sentencing document.23
In cases in which the defendant intends to raise the issue of mental retardation at the
capital trial’s guilt/innocence phase, s/he must file a “Notice of Intent of Defense to Raise
Issue of Insanity, Mental Incompetence or Mental Retardation.”24 The notice must be
filed at least ten days before the trial, unless the court adjusts the deadline.25 Once filed,
the judge must determine whether the issue requires any further medical examination of
the defendant or any further non-jury hearing relative to the issue.26 If necessary, the
judge may order the defendant to be examined and/or hold a hearing on the issue of the
defendant’s mental condition.
During the guilt/innocence phase, the state must prove the defendant’s guilt beyond a
reasonable doubt and the defendant must prove his/her mental retardation beyond a
reasonable doubt.27 Specifically, the defendant must prove, beyond a reasonable doubt,
that s/he “ha[s] significantly subaverage general intellectual functioning resulting in or
associated with impairments in adaptive behavior which manifested during the
developmental period.”28 Both the state and the inmate may present any evidence
relevant to the issue of the defendant’s guilt/innocence and/or mental retardation that is

16

Burgess v. State, 450 S.E.2d 680, 695 (1994).
See O.C.G.A. §§ 17-12-127(a)-(b), -19.3, -121 (2005).
18
O.C.G.A. § 17-7-131(b)(2) (2005).
19
Id.
20
Id.
21
Id.
22
O.C.G.A. § 17-7-131(j) (2005).
23
Id.
24
GA. UNIF. SUPER . C T. R. 31.4.
25
GA. UNIF. SUPER . C T. R. 31.1.
26
GA. UNIF. SUPER . C T. R. 31.4.
27
O.C.G.A. § 17-7-131(c)(3) (2004); Mosher v. State, 491 S.E.2d 348, 352-53 (Ga. 1997) (upholding the
constitutionality of requiring the defendant’s mental retardation be proved beyond a reasonable doubt).
28
O.C.G.A. § 17-7-131(a)(3).
17

299

not unfairly prejudicial, cumulative, or otherwise excluded by Georgia evidentiary
rules.29
At the close of evidence, the court must instruct the jury to consider the verdict of “guilty
but mentally retarded” in addition to “guilty” and “not guilty.”30 The court also must
instruct the jury as follows: “I charge you that should you find the defendant guilty but
mentally retarded, the defendant will be given over to the Department of Corrections or
the Department of Human Resources, as the mental condition of the defendant may
warrant.”31 The court, however, may not instruct the jury that a verdict of guilty but
mentally retarded will preclude a death sentence.32 If the jury finds the defendant “guilty
but mentally retarded,” the court must sentence the defendant to imprisonment for life.33
After the court accepts a plea of or the defendant has been found “guilty but mentally
retarded,” the defendant must be evaluated by a psychiatrist or a licensed psychologist
from the Department of Human Resources.34 If, based on the examination, the defendant
is in need of immediate hospitalization, the defendant must be transferred to the
Department of Human Resources.35 Alternatively, if the defendant is not in need of
immediate hospitalization, the defendant must be committed to an appropriate penal
facility where s/he must be further evaluated and treated.36 The defendant may be
transferred to the Department of Human Resources at any time if such action is
“psychiatrically indicated for his[/her] mental illness.”37
If the defendant fails to prove during the capital trial’s guilt/innocence phase that s/he is
“guilty but mentally retarded,” the defendant may present evidence regarding his/her
mental retardation as a mitigating circumstance during the sentencing phase.38 The
judge, however, is not required to “single out” the defendant’s alleged mental retardation
as a mitigating circumstance in his/her jury instructions.39
ii. Post-Conviction Proceedings
If the defendant fails to raise the issue of mental retardation at trial, s/he may raise the
issue in a petition for a writ of habeas corpus under the “miscarriage of justice” prong of

29

Morrison v. State, 583 S.E.2d 873, 876 (Ga. 2003) (pre-1988 case); Zant v. Foster, 406 S.E.2d 74, 76
(Ga. 1991) (pre-1988 case); Burgess v. State, 450 S.E.2d 680 (Ga. 1994) (post-1988 case).
30
O.C.G.A. § 17-7-131(c)(3) (2004); see also G A. S UGGESTED P ATTERN JURY INSTRUCTIONS, VOL. II
(CRIMINAL CASES ) § 209.40 (3d ed. 2004).
31
O.C.G.A. § 17-7 -131(b)(3)(C) (2004); see also GA. SUGGESTED PATTERN JURY INSTRUCTIONS , VOL. II
(CRIMINAL CASES ) § 209.40 (3d ed. 2004).
32
Heidler v. State, 537 S.E.2d 44, 55 (Ga. 2000); State v. Patillo, 417 S.E.2d 139, 141 (Ga. 1992).
33
O.C.G.A. § 17-7-131(j) (2004).
34
O.C.G.A. § 17-7-131(g)(1) (2004).
35
O.C.G.A. § 17-7-131(g)(4) (2004).
36
O.C.G.A. § 17-7-131(g)(2) (2004).
37
O.C.G.A. § 17-7-131(g)(3) (2004).
38
Burgess v. State, 450 S.E.2d 680, 695 (1994).
39
Id.

300

the state habeas corpus statute. 40 The defendant must establish his/her mental retardation
beyond a reasonable doubt41 and the judge must determine whether the defendant meets
this standard, “without intervention of the jury.”42 The defendant is not entitled to
appointed counsel to assist with preparing the petition for a writ of habeas corpus.43
b. Procedures Applicable to Death Penalty Cases Conducted Before July 1,
1988
The Georgia Supreme Court, in Fleming v. Zant, outlined the procedures for considering
claims raised by a defendant whose capital trial’s guilt/innocence phase began before July
1, 1988.
An inmate whose capital trial’s guilt/innocence phase commenced before July 1, 1988
may raise the issue of his/her mental retardation in a petition for a writ of habeas
corpus. 44 The defendant is not entitled to appointed counsel to assist with preparing the
petition.45 The petition must be supported by at least one expert diagnosis of mental
retardation46 and filed in the county in which the inmate is incarcerated.47
The court may hold a hearing on the issue of the inmate’s mental retardation or it may
make its decision based on the petition and the supporting evidence.48 Regardless of
whether it holds a hearing, the court, in making its decision, must assess whether the
inmate presented “sufficient credible evidence” to create a “genuine issue regarding the
[inmate’s] retardation.”49 If the court finds that there is a genuine issue of fact based on
the evidence presented, then the court must grant the writ for the limited purpose of
conducting a trial on the issue of the inmate’s mental retardation.50 This trial is
commonly referred to as a “Fleming trial.”
The purpose of a Fleming trial is to give the inmate the same right to litigate the issue of
mental retardation that s/he would have had if his/her trial had been conducted on or after
June 1, 1988.51 As a result, the inmate has a right to appointed counsel as well as all

40

Turpin v. Hill, 498 S.E.2d 52, 53 (Ga. 1998) (citing O.C.G.A.§ 9-14-48(d) (2004)); see also Head v.
Hill, 587 S.E.2d 613, 618 (Ga. 2003) (stating a defendant may not raise the issue of mental retardation in a
petition for a writ of habeas corpus if s/he raised the issue of mental retardation at trial and the jury rejected
the verdict of not guilty but mentally retarded).
41
O.C.G.A. § 17-7-131 (2004); Head, 587 S.E.2d at 618.
42
Hill, 498 S.E.2d at 54; Head, 587 S.E.2d at 620.
43
Gibson v. Turpin, 513 S.E.2d 186, 192 (Ga. 1999).
44
Fleming v. Zant, 386 S.E 2d 339, 342-43 (Ga. 1989).
45
Gibson, 513 S.E.2d at 192.
46
Fleming, 386 S.E 2d at 342-43.
47
O.C.G.A. § 9-14-43 (2004).
48
Fleming, 386 S.E 2d at 342-43.
49
Id.
50
Id.
51
Zant v. Foster, 406 S.E.2d 74, 76 (Ga. 1991) (overturned on other grounds).

301

other rights that “‘would . . . have accrued to [him/her] because of his[/her] status as an
accused during his[/her] initial trial.’”52
The Fleming trial must be held before a jury in the county where the original trial was
held and must include a full evidentiary hearing on the issue of the inmate’s mental
retardation.53 The inmate may not waive his/her right to a jury determination on the issue
of mental retardation.54
During the trial, the inmate must establish his/her mental retardation by a preponderance
of the evidence.55 Both the state and the inmate may present any evidence relevant to the
issue of the inmate’s mental retardation that is not unfairly prejudicial, cumulative, or
otherwise excluded by Georgia evidentiary rules.56 This includes facts related to the
crime, a transcript of the inmate’s confession, and photographs of the crime scene.57 This
evidence, however, may be considered only for the limited purpose of determining
whether the inmate is mentally retarded.58
After the presentation of evidence, the judge may not instruct the jury on the sentencing
consequences associated with a finding of mental retardation.59 Specifically, the judge
may not inform the jury that if it finds the defendant to be mentally retarded, the
defendant’s death sentence will be reduced to a sentence of life imprisonment.60
If the jury finds by a preponderance of the evidence that the inmate is mentally retarded,
by determining s/he “ha[s] significantly subaverage general intellectual functioning
resulting in or associated with impairments in adaptive behavior which manifested during
the developmental period,” his/her death sentence will be vacated and s/he will be
sentenced to life imprisonment.61

52

Id.
Fleming, 386 S.E 2d at 342-43.
54
Rogers v. State, 575 S.E.2d 879, 882 (Ga. 2003) (noting that once a habeas corpus court finds a
petitioner has adduced sufficient credible evidence of mental retardation to create an issue for a jury in a
Fleming trial, the issue of mental retardation must be reviewed by the trial court and this trial is not subject
to voluntary waiver).
55
Fleming, 386 S.E 2d at 342-43.
56
Morrison v. State, 583 S.E.2d 873, 876-77 (Ga. 2003); Foster, 406 S.E.2d at 76.
57
Morrison, 583 S.E.2d at 876; see also Foster, 406 S.E.2d at 76 (noting its disagreement with the trial
court’s pre-trial order excluding evidence of the underlying crime and the defendant’s subsequent escape
attempt).
58
Morrison, 583 S.E.2d at 877.
59
State v. Patillo, 417 S.E.2d 139, 141 (Ga. 1992); see, e.g., Foster v. State, 525 S.E.2d 78, 79-80 (Ga.
2002).
60
Patillo, 417 S.E.2d at 141.
61
Fleming v. Zant, 386 S.E 2d 339, 342-43 (Ga. 1989); Rogers v. State, 583 S.E.2d 873 (Ga. 2003).
53

302

B. Mental Illness
In addition to a plea or jury verdict of “guilty but mentally retarded,” a defendant with
mental disabilities may plead “not guilty by reason of insanity” or “guilty but mentally
ill”62 or s/he may raise the issue of his/her insanity during his/her capital trial. Such
defendant has a right to counsel and may be eligible for appointed counsel,63 if s/he can
establish that s/he is indigent.64
1. Definitions of Insanity and Mentally Ill
a. Definition of Insanity
A defendant is insane if:
(1) At the time of the act, omission, or negligence constituting the crime, the
person did not have mental capacity to distinguish between right and
wrong in relation to such act, omission, or negligence (“right and wrong
test”);65 or
(2) At the time of the act, omission, or negligence constituting the crime, the
person, because of mental disease, injury, or congenital deficiency, acted
as [s/]he did because of a delusional compulsion as to such act which
overmastered his[/her] will to resist committing the crime (“delusional
compulsion test”).66
Insanity does not include a mental state manifested only by repeated unlawful or
antisocial conduct.67
b. Definition of Mentally Ill
“Mentally ill” means having a disorder of thought or mood which significantly impairs
judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary

62

In July 1982, the Georgia Legislature adopted a new law allowing a defendant to plead “not guilty but
mentally ill” or obtain a “guilty but mentally ill” verdict. GA. S UGGESTED PATTERN JURY INSTRUCTIONS,
VOL. II (CRIMINAL C ASES ) § 209.30 (3d ed. 2004). The new law only applies to cases where the offense
occurred after July 1, 1982. Id.
63
GA. UNIFIED A PPEAL R. II(A)(1) (stating that two attorneys must be appointed in all capital cases).
64
See O.C.G.A. §§ 17-12-19.3, -121 (2005).
65
O.C.G.A. § 16-3-2 (2005); see also GA. S UGGESTED P ATTERN JURY INSTRUCTIONS, VOL. II (CRIMINAL
CASES ) § 209.10 (3d ed. 2004).
66
See G A. S UGGESTED P ATTERN JURY INSTRUCTIONS, VOL. II (CRIMINAL CASES ) § 209.20 (3d ed. 2004)
(essentially reciting the standards for determining whether a person is insane under the above tests to the
jury).
67
O.C.G.A. § 17-7-131(a)(1) (2004).

303

demands of life.68 The term “mentally ill” does not include a mental state manifested
only by repeated unlawful or antisocial conduct.69
2. Pleas of Not Guilty By Reason of Insanity and Guilty But Mentally Ill
a. Plea of Not Guilty By Reason of Insanity
In order for the court to accept a plea of “not guilty by reason of insanity,” the court must
be satisfied that the defendant was insane at the time of the offense, as defined above.70
To assess the defendant’s sanity, the defendant must be examined by a licensed
psychologist or psychiatrist. 71 The court must then review the psychological or
psychiatrist report(s) and hold a hearing on the defendant’s sanity.72 If the court is
satisfied that the defendant is “not guilty by reason of insanity,” the court may accept the
plea and adjudge the defendant “not guilty by reason of insanity.”73 A copy of the
psychological or psychiatric report(s) must then be forwarded to the Department of
Corrections with the official sentencing document.74
b. Plea of Guilty But Mentally Ill
To accept a plea of “guilty but mentally ill” the court must assess whether the defendant
was mentally ill at the time of the offense, as discussed above.75 To assess the
defendant’s mental illness, the defendant must be examined by a licensed psychologist or
psychiatrist.76 The court must then review the psychological or psychiatric report(s) and
hold a hearing on the defendant’s mental illness.77 If the court is satisfied that the
defendant was mentally ill at the time of the offense, the court may accept the defendant’s
plea of “guilty but mentally ill” 78 and sentence him/her in the same manner as a
defendant found guilty of the offense.79 After the defendant has been sentenced, a copy
of the psychological or psychiatric report(s) must be forwarded to the Department of
Corrections with the official sentencing document.80

68

O.C.G.A. § 17-7-131(a)(2) (2004); see also G A. S UGGESTED P ATTERN JURY INSTRUCTIONS, VOL. II
(CRIMINAL CASES ) § 209.30 (3d ed. 2004).
69
O.C.G.A. § 17-7-131(a)(2) (2004); see also Stripling v. State, 401 S.E.2d 500, 503-04 (Ga. 1991)
(citing O.C.G.A. § 17-7-31(a)(2) (2005)); GA. SUGGESTED P ATTERN JURY INSTRUCTIONS, VOL. II
(CRIMINAL CASES ) § 209.30 (3d ed. 2004).
70
O.C.G.A. § 17-7-131(b)(2.1) (2004).
71
Id.
72
Id.
73
Id.
74
O.C.G.A. § 17-7-131(i) (2004).
75
O.C.G.A. § 17-7-131(a)(2) (2004).
76
Id.
77
Id.; see also Cullers v. State, 543 S.E.2d 763, 765 (Ga. Ct. App. 2000).
78
O.C.G.A. § 17-7-131(a)(2) (2004).
79
O.C.G.A. § 17-7-131(g)(1) (2004).
80
O.C.G.A. § 17-7-131(i) (2004).

304

3. The Insanity or Otherwise Mentally Incompetent Defenses and the “Not
Guilty By Reason of Insanity” and “Guilty But Mentally Ill” Verdicts
If the defendant intends to raise as a defense his/her insanity or mental incompetence at
the time of the offense, the defendant must file a “Notice of Intent of Defense to Raise
Issue of Insanity, Mental Incompetence or Mental Retardation.”81 The notice must be
filed at least ten days before the trial, unless the court adjusts the deadline.82 When the
notice is filed, the court must appoint at least one psychiatrist or licensed psychologist to
examine the defendant and testify at trial.83 If the defendant fails to file the required
notice of intent, s/he may not raise the issue of insanity or mental incompetence during
the trial unless s/he can show good cause for his/her failure to file the notice.84
In cases in which the defendant claims that s/he was insane or otherwise mentally
incompetent at the time of the crime, the jury must assess whether the defendant is
“guilty,” “not guilty,” “not guilty by reason of insanity at the time of the crime,” “guilty
but mentally ill,” or “guilty but mentally retarded” (which is discussed above).85 In order
for the defendant to prove that s/he was insane at the time of the crime, the defendant
must rebut the Georgia law presumption that all defendants are of sound mind and
discretion86 by establishing by a preponderance of the evidence that at the time of the
alleged offense, s/he was insane, as defined above.87 In contrast, in order for the
defendant to prove that s/he was mentally ill at the time of the offense, s/he must
establish his/her mental illness, as defined above, beyond a reasonable doubt and the state
must prove that the defendant was guilty beyond a reasonable doubt.88
During the guilt/innocence phase, the state and defendant may present any evidence
relevant to the defendant’s mental condition, including the testimony of medical
experts.89 Following the presentation of evidence by the state and defendant, the court
appointed psychiatrist or licensed psychologist will testify and be cross-examined by both

81

GA. UNIF. SUPER . C T. R. 31.4.
GA. UNIF. SUPER . C T. R. 31.1.
83
O.C.G.A. § 17-7-130.1 (2004).
84
GA. UNIF. SUPER . C T. R. 31.4(a).
85
O.C.G.A. § 17-7-131(b)(1)(A)-(E) (2004).
86
Boswell v. State, 572 S.E.2d 565, 567-68 (Ga. 2002); Moore v. State, 456 S.E.2d 708, 711 (Ga. Ct.
App. 1995); Jackson v. State, 253 S.E.2d 874, 876-77 (Ga. Ct. App. 1977); GA. SUGGESTED PATTERN JURY
INSTRUCTIONS , VOL. II (CRIMINAL CASES ) § 209.00 (3d ed. 2004). Regarding the issue of insanity at the
time of the offense, the Georgia Suggested Pattern Jury Instructions state as follows: “Every person is
presumed to be of sound mind and discretion, however, this presumption may be rebutted.” See GA.
SUGGESTED P ATTERN JURY I NSTRUCTIONS , VOL II. (CRIMINAL C ASES ) § 209.00 (3d ed. 2004).
87
Scoggins v. State, 275 S.E.2d 676, 677 (Ga. 1980) (discussing the applicable burden of proof);
Boswell v. State, 256 S.E.2d 470 (Ga. 1979); see also G A. S UGGESTED PATTERN JURY INSTRUCTIONS, VOL.
II (CRIMINAL C ASES ) §§ 209.10 (Insanity at Time of Act), 209.20 (Delusional Insanity) (3d ed. 2004).
88
O.C.G.A. § 17-7-131(c)(2) (2004); Keener v. State, 334 S.E.2d 175, 178 (Ga. 1985).
89
O.C.G.A. § 17-7-130.1 (2004).
82

305

the state and defendant.90 Both parties may also introduce evidence in rebuttal to the
testimony of the court-appointed medical witness. 91
At the close of evidence, the court must inform the jury that it may consider the verdicts
of “guilty,” “not guilty,” “not guilty by reason of insanity at the time of the crime,”
“guilty but mentally ill at the time of the crime,” and “guilty but mentally retarded.”92 In
charging the jury on the available verdicts, the court must make clear that “if [the jury]
find[s] [that] the defendant did not have the mental capacity to distinguish between right
and wrong (or acted because of delusional compulsion), they must find the defendant not
guilty by reason of insanity and must not find the defendant guilty but mentally ill.”93
The court also must charge the jury as follows:
I charge you that should you find the defendant not guilty by reason of
insanity at the time of the crime, the defendant will be committed to a state
mental heath facility until such time, if ever, that the court is satisfied that
he or she be released pursuant to law.
I charge you that should you find the defendant guilty but mentally ill at
the time of the crime, the defendant will be given over to the Department
of Corrections or the Department of Human Resources, as the mental
condition of the defendant may warrant.
I charge you that should you find the defendant guilty but mentally
retarded, the defendant will be given over to the Department of
Corrections or the Department of Human Resources, as the mental
condition of the defendant may warrant.94
If the jury finds the defendant “not guilty by reason of insanity” (or the court previously
accepted the defendant’s plea of “not guilty by reason of insanity”), the court retains
jurisdiction over the defendant and will order that s/he be detained in a state mental heath
facility to evaluate the defendant’s present mental condition.95 The defendant’s detention
may not exceed thirty days from the date of the acquittal order.96 Once the evaluation is
complete, the mental health facility must send a report of the defendant’s present mental

90

Id.
Id.
92
O.C.G.A. § 17-7-131(c)(1) (2004).
93
Keener, 334 S.E. 2d at 179.
94
O.C.G.A. § 17-7-131(b)(3)(A)-(C) (2004).
95
O.C.G.A. § 17-7-131(d) (2004); see also O.C.G.A. § 17-12-87 (2005) (noting that when an indigent
defendant is found to be “guilty by reason of insanity,” the Office of Mental Health Advocate has the right
to assume the defense and representation of such defense if the resources, funding, and staffing of the office
allow; however, the attorney who represented the defendant at trial has the option to retain responsibility of
the case).
96
O.C.G.A. § 17-7-131(d) (2004).
91

306

condition to the court, the prosecuting attorney, and the defendant’s attorney, if any.97
Based on the evaluation, the court may discharge the defendant,98 or hold a hearing to
assess whether the defendant should be committed to the Department of Human
Resources to receive involuntary treatment or other services, 99 or be subject to a period of
conditional release under certain conditions set by the court.100
In contrast, if the jury finds the defendant “guilty but mentally ill,” the court must
sentence him/her in the same manner as a defendant found guilty of the offense.101 In
fact, a finding of “guilty but mentally ill” has the same force and effect of a plea or
verdict of guilty, but it may allow certain defendants to obtain medical treatment.102
A defendant found to be “guilty but mentally ill” must be evaluated by a psychiatrist or a
licensed psychologist from the Department of Human Resources.103 Based on the
examination, if the defendant is in need of hospitalization, the defendant must be
transferred to the Department of Human Resources.104 Alternatively, if the defendant is
not in need of immediate hospitalization, the defendant must be committed to an
appropriate penal facility where s/he must be further evaluated and treated.105 The
defendant may be transferred to the Department of Human Resources at any time if such
action is “psychiatrically indicated for his[/her] mental illness.”106

97

Id.
If the defendant does not meet the “inpatient commitment criteria,” s/he must be discharged. See
O.C.G.A. § 17-7-131(e)(1) (2004). An “inpatient” is defined as:
98

A person who is mentally ill and:
(A)(i) Who presents a substantial risk of imminent harm to that person or others, as
manifested by either recent overt acts or recent expressed threats of violence which present a
probability of physical injury to that person or other persons; or
(ii) Who is so unable to care for that person's own physical health and safety as to create
an imminently life-endangering crisis; and
(B) Who is in need of involuntary inpatient treatment.
O.C.G.A. § 37-3-1(9.1) (2004).
99
To be committed to the Department of Human Resources, the defendant must meet the
“inpatient commitment criteria.” See O.C.G.A. § 17-7-131(e)(4) (2004); see also O.C.G.A. § 177-131(e)(2) (2004) (requiring a hearing to assess whether the defendant meets the “inpatient
commitment criteria”).
100
O.C.G.A. § 17-7-131(e)(5)(A) (2004).
101
O.C.G.A. § 17-7-131(g)(1) (2004).
102
Merrit v. State Farm Fire & Cas. Co., 463 S.E.2d 42 (Ga. Ct. App. 1995); United States v. Bankston,
121 F.3d 1411, 1416 (11th Cir. 1997).
103
O.C.G.A. § 17-7-131(g)(1) (2004).
104
O.C.G.A. § 17-7-131(g)(4) (2004).
105
O.C.G.A. § 17-7-131(g)(2) (2004).
106
O.C.G.A. § 17-7-131(g)(3) (2004).

307

If the defendant is found “guilty” rather than “not guilty by reason of insanity” or “guilty
but mentally ill,” s/he may present evidence of his/her mental condition as mitigation
during the sentencing phase of the capital trial.
C. Resources Provided to the Mentally Retarded and Mentally Disabled
With the passage of the Georgia Indigent Defense Act of 2003 (the Act), 107 the Office of
the Georgia Capital Defender (GCD), which is responsible for representing indigent
defendants charged with capital offenses for which the death penalty is being sought, is
authorized to hire “as many assistant attorneys, clerks, investigators, paraprofessionals,
administrative assistants, and other persons as may be necessary” to carry out his/her
responsibilities as the Capital Defender.108 As of early December 2005, the GCD had on
staff ten investigators and one forensic social worker.109 The Capital Defender also has a
budget to hire any necessary experts without approaching the court for approval.
Similarly, in cases in which the GCD is unable to represent the defendant due to a
conflict of interest, the appointed conflict attorney does not have to apply to the court for
experts or investigators.110 Rather, the conflict attorney must submit a form entitled
“Request for Pre-Approval for an Expert Witness” to the Deputy Director for Conflict
Case Management at the Georgia Public Defender Standards Council.111 The form must
include the total amount that the expert or investigator is requesting to perform the
service(s); it should not include an hourly fee to be computed at a later date, or a variable
fee based upon some future event.112 If the total cost is unknown, the form should
include an amount that will cover the expert’s anticipated initial service(s), as the
attorney may submit supplemental requests for additional services.113 Requests for fees
associated with the expert testimony should be handled in a supplemental request once
the need for the testimony arises.114 The pre-approval procedure must be followed in
order for the experts and investigators to obtain payment for their services.115
D. “Next Friend”116 Petitions On Behalf of the Incompetent

107

See supra ch. 6, discussing Georgia’s current defense services system.
O.C.G.A. § 17-12-126(a) (2005).
109
Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author).
110
Protocol for the Appointment of Expert Witnesses and Investigators in Death Penalty Cases assigned
to Private Counsel after January 1, 2005, at http://www.gidc.com/cpdsystem-forms-conflictdp_protocol_experts.pdf (last visited on Aug. 23, 2005).
111
Id.
112
Id.
113
Id.
114
Id.
115
Id.
116
A “next friend” is an individual acting for benefit of a person sui juris, without being regularly
appointed guardian. A “next friend” is not a party to an action, but is an officer of the court, especially
appearing to look after the interests of the person for whose benefit s/he appears. Where permitted, in a
capital case, this includes acting to assert claims for a defendant who seeks to waive such claims.
108

308

A “next friend” has standing to file a petition on behalf of a death-row inmate who
wishes to waive his/her right to pursue post-conviction proceedings if the “next friend”
can establish that s/he is truly acting in the best interests of the inmate117 and that the
inmate is incompetent within the definition articulated by the United States Supreme
Court in Rees v. Payton.118
Pursuant to Rees, an individual is incompetent if s/he lacks the “capacity to appreciate
his[/her] position and make a rational choice with respect to continuing or abandoning
further litigation” or suffers “from a mental disease, disorder, or defect which may
substantially affect his[/her] capacity in the premises.”119 The standard articulated in
Rees involves a determination of three issues: (1) whether the individual suffers from a
mental disease, disorder, or defect; (2) whether a mental disease, disorder, or defect
prevents that individual from understanding his/her legal position and the options
available to him/her; and (3) whether a mental disease, disorder, or defect prevents that
individual from making a rational choice among his/her options.120 Rational reasons for
choosing not to pursue post-conviction proceedings include: “[the inmate] was tired of
languishing in prison; [the inmate] was pessimistic [s/he] would ever get out of prison;
and [the inmate] truly believed [s/he] would be happier in the afterlife.”121
E. Competency to be Executed122
An inmate who is sentenced to death but found to be “mentally incompetent to be
executed” may not be executed.123 An inmate is mentally incompetent to be executed if
“because of a mental condition [s/he] is presently unable to know why [s/he] is being
punished and understand the nature of the punishment.”124
An inmate who believes that s/he may be “mentally incompetent to be executed” may
challenge his/her mental competency by filing an application with the superior court of
the county in which s/he is detained.125 However, the application cannot be filed until the
completion of the direct appeal and until the superior court judge has signed the order

117

Lonchar v. Zant, 978 F.2d 637, 641 (11th Cir. 1993) (citing Whitmore v. Arkansas, 495 U.S 149
(1990)).
118
Kellogg v. Zant, 390 S.E.2d 839, 840-41 (Ga. 1990) (citing Rees v. Peyton, 384 U.S. 312, 314 (1966)).
119
Rees, 384 U.S. at 314.
120
Lonchar, 978 F.2d at 641-42; Hauser v. Moore, 223 F.3d 1316, 1322 (11th Cir. 2000) (citing Lonchar,
978 F.2d at 641-42).
121
Hauser, 223 F.3d at 1323.
122
In 1986, the United States Supreme Court, in Ford v. Wainwright, found that procedures for assessing
an inmate’s mental competency are in violation of the Eighth Amendment of the United States Constitution
if the procedures do the following: (1) fail to include the inmate in the “truth-seeking process;” (2) deny the
inmate the opportunity to challenge or impeach the state-appointed psychiatrists’ opinions; and (3) place
the decision on the inmate’s mental capacity wholly within the executive branch. See Ford v. Wainwright,
477 U.S. 399, 413-16 (1986).
123
O.C.G.A. § 17-10-61 (2004).
124
O.C.G.A. § 17-10-60 (2004).
125
O.C.G.A. § 17-10-63(a) (2004).

309

setting a period of time within which the execution should take place.126 By filing the
application, the inmate consents to submit to a state examination to assess his/her mental
competency to be executed.127
The inmate’s application must identify the following:
1.
2.
3.
4.

The proceeding in which the applicant was convicted;
The date of the rendition and the final judgment;
Whether a time period for execution has been set;
The date of the signing of the order and the dates of the designated time period for
the execution;
5. Any previous proceedings that the inmate may have taken to challenge his/her
mental competency to be executed or his/her mental condition at the time of the
crime and/or trial; and
6. All facts in support of the assertion that the inmate is presently mentally
incompetent.128
All arguments and citations must be excluded from the application, but all relevant
evidence in support of the inmate’s assertions, including affidavits and records, must be
attached to the application.129 The application must also be verified with the oath of the
inmate or someone else on his/her behalf.130
In addition to the application, the inmate may file a request for the appointment of a
specific expert to assess his/her mental competency to be executed.131 If the court finds
that the inmate makes a sufficient showing that his/her mental competency may be a
“significant issue,” it may appoint an expert to conduct an examination of the inmate. 132
Following the filing of the application, the respondent must answer the application and
the court must schedule a hearing “as soon as possible.”133 At the hearing, both parties
may introduce witnesses and other evidence on the issue of the inmate’s mental
competency to be executed.134 After reviewing the evidence, the court must make written
findings of fact and conclusions of law upon which its judgment is based.135

126
127
128
129
130
131
132
133
134
135

O.C.G.A. § 17-10-67 (2004).
O.C.G.A. § 17-10-66(a) (2004).
O.C.G.A. § 17-10-63(b) (2004).
Id.
Id.
Id.
O.C.G.A. § 17-10-66(c) (2004).
O.C.G.A. § 17-10-65 (2004).
O.C.G.A. § 17-10-68(a) (2004).
O.C.G.A. § 17-10-68(d) (2004).

310

If the court finds that the inmate has proven his/her mental incompetency to be executed
by a preponderance of the evidence, it must enter an order to that effect.136 The inmate’s
execution then is stayed for the duration of the inmate’s incompetency.137 If and when
the inmate regains competency, the court that made the original finding as to
incompetency must be notified of the inmate’s condition.138 The court must enter an
order noting the change in the inmate’s condition and vacate the inmate’s stay of
execution.139 A copy of the order must be sent to the sentencing court, at which time it
must fix a new time period during which the inmate’s sentence must be carried out.140
In contrast, if the court denies the inmate’s application, it must telephonically notify the
parties of the judgment and dissolve any relevant stays of execution.141
The state may appeal the court’s finding of mental incompetency in any and all cases.142
But, in order for the inmate to appeal a finding of competency, s/he must obtain a
certificate of probable cause for the appeal from the Georgia Supreme Court.143 A
written application for the certificate of probable cause for appeal must be filed with the
clerk of the Georgia Supreme Court within three days of the order denying the inmate’s
application.144 Within the same period of time, the inmate also must file a notice of
appeal with the clerk of the superior court in which the inmate is detained.145 The
Georgia Supreme Court must make a decision as to the inmate’s application “within a
reasonable time after filing.”146 If the Court denies the inmate’s application, the Court
must inform the applicable superior court that the inmate lacks probable cause to
appeal.147

136
137
138
139
140
141
142
143
144
145
146
147

O.C.G.A. § 17-10-68(e) (2004).
O.C.G.A. § 17-10-71 (2004).
Id.
Id.
Id.
O.C.G.A. § 17-10-68(e) (2004).
O.C.G.A. § 17-10-70(c) (2004).
O.C.G.A. § 17-10-70(a), (b) (2004).
O.C.G.A. § 17-10-70(b) (2004).
Id.
Id.
Id.

311

II. ANALYSIS
A. Recommendation #1
Jurisdictions should bar the execution of individuals who have mental
retardation, as that term is defined by the American Association on Mental
Retardation. Whether the definition is satisfied in a particular case should
be based upon a clinical judgment, not solely upon a legislatively prescribed
IQ measure, and judges and counsel should be trained to apply the law fully
and fairly. No IQ maximum lower than 75 should be imposed in this regard.
Testing used in arriving at this judgment need not have been performed
prior to the crime.

The American Association on Mental Retardation (AAMR) defines mental retardation as
“a disability characterized by significant limitations both in intellectual functioning and
in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.
This disability originates before the age of 18.”148
Since 1989, the State of Georgia has prohibited the execution of all mentally retarded
offenders.149 The Georgia Code defines mental retardation as: (1) “significant[]
subaverage general intellectual functioning,” (2) “resulting in or associated with
impairments in adaptive behavior,” which (3) “manifested during the developmental
period.” Georgia’s definition of mental retardation is similar to the AAMR definition.
Under the AAMR definition, limited intellectual functioning requires that an individual
have an impairment in general intellectual functioning that places him/her in the lowest
category of the general population. IQ scores alone are not precise enough to identify the
upper boundary of mental retardation. Experts generally agree that mental retardation
includes everyone with an IQ score of 70 or below, but the definition also includes some
individuals with IQ scores in the low to mid-70s.150 Thus, no state should impose an IQ

148

American Association on Mental Retardation, AAMR Definition of Mental Retardation, at
http://www.aamr.org/Policies/faq_mental_retardation.shtml (last visited on Aug. 23, 2005).
149
See supra notes 1-7 and accompanying text.
150
See James W. Ellis, Mental Retardation and the Death Penalty: A Guide to State Legislative Issues, at
7 (2002) (unpublished manuscript), available at www.deathpenaltyinfo.org/MREllisLeg.pdf (last visited on
Aug. 23, 2005). Ellis notes that “relevant professional organizations have long recognized the importance
of clinical judgment in assessing general intellectual functioning, and the inappropriateness and imprecision
of arbitrarily assigning a single IQ score as the boundary of mental retardation.” Id. at 7 n.18; see also
American Association of Mental Retardation, Definition of Mental Retardation, at
http://www.aamr.org/Policies/faq_mental_retardation.shtml (last visited on Aug. 23, 2005) (noting that “an
obtained IQ score must always be considered in light of its standard error of measurement,” thus making
the IQ ceiling for mental retardation rise to 75. However, “an IQ score is only one aspect in determining if
a person has mental retardation.”); AMERICAN ASSOCIATION OF MENTAL R ETARDATION, MENTAL
RETARDATION : DEFINITION, C LASSIFICATION , AND SYSTEMS OF SUPPORT 5 (Ruth Luckasson ed., 9th ed.
1992) (“Mental retardation is characterized by significantly subaverage intellectual capabilities or ‘low
intelligence.’ If the IQ score is valid, this will generally result in a score of approximately 70 to 75 or
below. This upper boundary of IQs for use in classification of mental retardation is flexible to reflect the

312

maximum lower than 75. Clinical judgments by experienced diagnosticians are
necessary to ensure accurate diagnoses of mental retardation.151
The Georgia Code’s definition of mental retardation is similar to the AAMR definition in
that it does not set an IQ maximum for mental retardation. The Georgia Supreme Court,
however, has recognized the IQ range of “70 or below” as being “an indication of
significantly subaverage intellectual functioning.” 152 The Georgia Supreme Court has not
addressed the issue of whether an IQ score in the low to mid-70s disqualifies a defendant
or death-row inmate from being found to have mental retardation, and Georgia trials
courts, in at least some mental retardation cases, have interpreted the statute to permit the
jury to consider IQ scores as high as 75 as possibly being supportive of a mental
retardation verdict, in view of the possibility of a 5 point margin of error.
The State of Georgia also requires the defendant or death-row inmate to have significant
impairments in adaptive behavior. The AAMR definition of mental retardation includes
adaptive behavior limitations, which produce real-world disabling effects on a person’s
life, designed to ensure that an individual is truly disabled and not simply a poor testtaker.153 Under this definition, adaptive behavior is “expressed in conceptual, social, and
practical adaptive skills” and focuses on broad categories of adaptive impairment, not
service-related skill areas.154 The United States Supreme Court in Atkins v. Virginia
indicated that a limitation in adaptive behavior was comprised of deficits in at least two
of the following skill areas: communication, self-care, home living, social skills,
community use, self-direction, health and safety, functional academics, leisure, and
work.155

statistical variance inherent in all intelligence tests and the need for clinical judgment by a qualified
psychological examiner.”); A MERICAN A SSOCIATION ON MENTAL DEFICIENCY, CLASSIFICATION IN MENTAL
RETARDATION 11 (Herbert J. Grossman ed., 8th ed. 1983) (“This upper limit is intended as a guideline; it
could be extended upward through IQ 75 or more, depending on the reliability of the intelligence test used.
This particularly applies in schools and similar settings if behavior is impaired and clinically determined to
be due to deficits in reasoning and judgment.”); AMERICAN P SYCHIATRIC ASSOCIATION , D IAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 41 (4th ed. 2000) (“Thus it is possible to diagnose Mental
Retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive
behavior.”).
151
This fact is reflected in Atkins v. Virginia, where the Court noted that “an IQ between 70 and 75” is
“typically considered the cutoff IQ score for the intellectual function prong of the mental retardation
definition.” 536 U.S. 304, 309 n.5 (2002).
152
See, e.g., Perkinson v. State, 610 S.E.2d 533, 537-38 (Ga. 2005); Head v. Ferrell, 554 S.E.2d 155 (Ga.
2001); Stripling v. State, 401 S.E.2d 500, 504 (Ga. 1991); State Board Won’t Grant Clemency, Former
Fort Benning Soldier Scheduled to Be Executed Today for Conviction in “Forces of Evil” Murder 16 Years
Ago, COLUMBUS LEDGER -E NQUIRER, Mar. 31, 1994 (noting that “[a] Superior Court judge rejected
[Hance’s] claim [of mental retardation] Monday, saying Hance’s IQ of 75-79 doesn’t meet the state’s
definition of mental retardation”).
153
Ellis, supra note 150, at 8.
154
Id.
155
536 U.S. at 309 n.3.

313

Georgia courts have not explicitly defined the term “adaptive behavior,” but when
assessing impairments in a defendant’s adaptive behavior, the Georgia Supreme Court
has considered some of the same skill areas mentioned in Atkins, including: functional
academics, employment history, vocational training, and social skills.156 The State of
Georgia requires these impairments in adaptive behavior to manifest during the
“developmental period.”
The AAMR requires that mental retardation be manifested during the developmental
period, which is generally defined as up until the age of 18. This does not mean that a
person must have been IQ tested with scores in the mentally retarded range during the
developmental period, but instead, there must have been manifestations of mental
disability, which at an early age generally take the form of problems in the area of
adaptive functioning.157 The age of onset requirement is used to distinguish mental
retardation from those forms of mental disability that can occur later in life, such as
traumatic brain injury or dementia.158
Similar to the AAMR definition, the Georgia Supreme Court has defined the
“developmental period” as being under the age of 18.159
Based on this information, the State of Georgia is only in partial compliance with
Recommendation #1.
B. Recommendation #2
All actors in the criminal justice system, including police, court officers,
prosecutors, defense attorneys, prosecutors, judges, and prison authorities,
should be trained to recognize mental retardation in capital defendants and
death row inmates.

Apart from law enforcement officials, the State of Georgia does not explicitly require any
other actors in the criminal justice system to participate in training to recognize mental
retardation in capital defendants and death-row inmates. All Georgia “peace officers”160
are statutorily required to meet certain criteria161 and complete a basic course162 at a

156

Head v. Stripling, 590 S.E.2d 122, 124 (Ga. 2003).
Ellis, supra note 150.
158
Id.
159
Stripling, 590 S.E.2d at 124 n.1.
160
A “peace officer” is defined, for the purposes of this Section, as “an agent, operative, or officer of this
state, a subdivision or municipality thereof, . . . who, as an employee for hire or as a volunteer, is vested
either expressly by law or by virtue of public employment or service with authority to enforce the criminal
or traffic laws through the power of arrest and whose duties include the preservation of public order, the
protection of life and property, and the prevention, detection, or investigation of crime.” See O.C.G.A. §
35-8-2(8)(A) (2005).
161
O.C.G.A. § 35-8-8(a) (2005). One must (1) be at least 18 years of age; (2) be a citizen of the United
States; (3) have obtained a high school diploma or the recognized equivalent; (4) not have been convicted
of any state or federal felonies or sufficient misdemeanors to establish a pattern of disregard for the law; (5)
157

314

Georgia Peace Officer Standards and Training Council (POST) certified academy. 163 The
mandatory basic course consists of 404 hours of training, including such relevant areas as
“mental health, mental retardation, and substance abuse.” 164 This six hours of instruction
on “mental health, mental retardation, and substance abuse” includes, but is not limited
to, instruction for law enforcement candidates on (1) the statutory guidance on mental
retardation; (2) the proper definition of mental retardation and IQ metric for determining
the level of mental retardation according to DSM (Diagnostic and Statistical Manual of
Mental Disorders) IV; (3) characteristic signals to look for to identify a mentally retarded
person; (4) proper methods of communicating with persons whom they suspect are
mentally retarded, including additional requirements for interrogations to ensure
voluntariness of any statements made during that interrogation; and (5) appropriate
methods for dealing with mentally retarded persons who become violent, including steps
to take to avoid the use of force.165
Additionally, the Georgia Department of Community Affairs has developed a Model Law
Enforcement Operations Manual (MLEOM), which contains “professional standards and
requirements for law enforcement operations,”166 including standards on “signs to help in
the recognition of mental illness in a person.”167 The Georgia Department of Community
Affairs suggests that the MLEOM be used by law enforcement agencies to assist with
developing or revising polices and procedures.168 The Georgia Association of Chiefs of
Police has adopted a similar version of the MLEOM as its “Sample Law Enforcement

be fingerprinted for a background check; (6) possess good moral character; (7) complete an oral interview;
(8) be found free from an adverse physical, emotional, or mental condition; and (9) successfully complete
the basic training course entrance examination. Id.; see also GA. PEACE OFFICER S TANDARDS & TRAINING
COUNCIL R. 464-3-.02(a) (2005), available at http://www.gapost.org/5Trng.htm (last visited on Oct. 4,
2005).
162
O.C.G.A. § 35-8-9(a) (2005); GA. PEACE OFFICER STANDARDS & TRAINING C OUNCIL R. 464-3 -.03(a)
(2005), available at http://www.gapost.org/5Trng.htm (last visited on Oct. 4, 2005).
163
O.C.G.A. § 35-8-11 (2005).
164
GA. P EACE OFFICER STANDARDS & TRAINING C OUNCIL, 404 HOUR BASIC LAW ENFORCEMENT
TRAINING
C OURSE
(11th
ed.
2003)
(table
of
contents),
available
at
http://www.gapost.org/pdf_file/bletc404.pdf (last visited on Oct. 4, 2005) (The curriculum for this training
course, as produced by the POST Council, is the minimum level of instruction and training for law
enforcement officials required to be taught at POST-certified training academies.).
165
GA. P EACE OFFICER STANDARDS & TRAINING C OUNCIL, 404 HOUR BASIC LAW ENFORCEMENT
th
TRAINING C OURSE 3.3-1 to -9, 4.5-17 (11 ed. 2003) [hereinafter POST B ASIC TRAINING COURSE ].
166
GA. DEP ’T OF CMTY. AFFAIRS, MODEL LAW ENFORCEMENT OPERATIONS MANUAL
(acknowledgement),
at
http://www.dca.state.ga.us/development/research/programs/downloads/law/ackn.html (last visited on Oct.
4, 2005).
167
GA. DEP ’T OF C MTY., MODEL L AW ENFORCEMENT OPERATIONS MANUAL 16-6 (6th ed. 1996)
[hereinafter
MLEOM],
available
at
http://www.dca.state.ga.us/development/research/programs/downloads/law/Law.html (last visited on Oct.
4, 2005).
168
Id.

315

Operations Manual” (SLEOM).169 The extent to which Georgia law enforcement
agencies have adopted either the MLEOM or the SLEOM is unknown.
Both the Unified Appeal Proceedings Rules and the “GPDSC [the Georgia Public
Defender Standards Council] Death Penalty Defense Standards” also contain relevant
training requirements for attorneys. The Unified Appeal Proceedings Rule IIA requires
all trial and appellate counsel handling death penalty cases to receive at least ten hours of
specialized death penalty training.170 Attorneys must fulfill this requirement by taking
training related to “death penalty defense,” which could include, but is not required to
include, training on mental retardation.171 The “GPDSC Death Penalty Defense
Standards,” which were adopted by the GPDSC in April 2005 and are pending
ratification by the General Assembly in order to become effective,172 also requires that at
least one member of the defense team (one of the attorneys or the investigator or
mitigation specialist) be qualified by training and experience to screen individuals for the
presence of mental or psychological disorders or impairments, but this requirement can
be fulfilled without the defense attorney participating in any training on mental
retardation.173
Even though the State of Georgia does not explicitly require attorneys to take training on
mental retardation, training on this issue is available to prosecutors and defense attorneys
at the Office of the Georgia Capital Defender (GCD) and conflict attorneys who handle
death penalty cases. The Prosecuting Attorney’s Council of Georgia (PAC) offers
prosecutors continuing legal education programs on the death penalty that occasionally
address mental retardation, but none of the programs specifically train prosecutors to
recognize mental retardation.
All GCD attorneys receive training on mental retardation, and the GCD also offers two
major death penalty seminars each year, both of which emphasize issues surrounding

169

See GA. ASS’N OF CHIEFS OF P OLICE, S AMPLE LAW ENFORCEMENT O PERATIONS MANUAL, available at
http://www.gachiefs.com/Sample%20LE%20Manual/SCHAPTER17.doc (last visited on Oct. 4, 2005).
170
GA. UNIFIED A PPEAL R. II(A)(1)-(2).
171
Id.
172
Standards adopted by the GPDSC that are determined by the General Oversight Committee to have a
“fiscal impact” are not effective until ratified by joint resolution of the General Assembly and upon
approval of the resolution by the Governor or upon its becoming law without his/her approval. See
O.C.G.A. 17-12-8(c) (2005); see also Fax from Chris Adams, Georgia Public Defender (Dec. 2, 2005) (on
file with the author); Georgia Public Defender Standards Council, 2005 Legislative Session Report #8, at
http://www.gpdsc.com/resources-legislation-update_04-05-05.htm (last visited on Oct. 5, 2005) (noting the
General Oversight Committee “determined that all of the standards adopted [as of March 23, 2005] by the
[GPDSC] have a fiscal impact”).
173
GA. P UB. DEFENDER STANDARDS C OUNCIL, DEATH P ENALTY DEFENSE S TANDARDS, at
http://www.gidc.com/cpdsystem-standards-death_penalty_case.pdf (last visited on Oct. 7, 2005).

316

mental retardation.174 Attendance at the seminars is by invitation only and priority is
given to attorneys with active death penalty cases in Georgia. 175
The Office of Mental Health Advocate (OMHA) also offers programs to interested
defense attorneys on mental retardation.176 The last OMHA seminar, offered in May
2005, was entitled “Defense Strategies for Evaluating, Placing, and Treating the Mentally
Ill Client,” and a portion of the seminar focused on distinguishing mental illness from
mental retardation.177 All of the OMHA seminars are elective and the frequency of
seminars focusing on recognizing mental retardation is unknown.
To the best of our knowledge, there are no equivalent programs available to court
officers, judges, or prison authorities.
Based on this information, it appears that law enforcement officials are receiving
mandatory training on how to recognize mental retardation and interact with mentally
retarded suspects and witnesses, but not all actors within the criminal justice system are
required to receive this training. Therefore, the State of Georgia is only in partial
compliance with Recommendation #2.
C. Recommendation #3
The jurisdiction should have in place policies that ensure that persons who
may have mental retardation are represented by attorneys who fully
appreciate the significance of their client's mental limitations. These
attorneys should have training sufficient to assist them in recognizing mental
retardation in their clients and understanding its possible impact on their
clients' ability to assist with their defense, on the validity of their
"confessions" (where applicable) and on their eligibility for capital
punishment. These attorneys should also have sufficient funds and
resources (including access to appropriate experts, social workers and
investigators) to determine accurately and prove the mental capacities and
adaptive skills deficiencies of a defendant who counsel believes may have
mental retardation.

As discussed under Recommendation # 2, the State of Georgia does not require attorneys
representing capital defendants with mental retardation to participate in any special
training on recognizing mental retardation and understanding the impact of mental

174

th

See, e.g., Georgia Capital Defender, 13 Annual Capital Defense Training Seminar, “The Nitty-Gritty
of Capital Defense,” Agenda (Feb. 4-6, 2005) (on file with author).
175
Georgia Capital Defender, Training, at http://www.gacapdef.org/main.htm (last visited on Aug. 30,
2005).
176
See OHMA Mental Health Seminar, Georgia Public Defender Standards Council, Mental Health
Advocate, OHMA Mental Health Seminar, Agenda, at http://www.gpdsc.com/omha-resourcesseminars.htm (last visited on Aug. 23, 2005).
177
Id.

317

retardation, but training on mental retardation is available to GCD attorneys and conflict
attorneys who handle death penalty cases.
Additionally, the GCD is authorized to hire “as many assistant attorneys, clerks,
investigators, paraprofessionals, administrative assistants, and other persons as may be
necessary” to carry out his/her responsibilities as the Capital Defender.178 As of early
December 2005, the GCD had on staff ten investigators and one forensic social
worker.179 The Capital Defender also has a budget to hire any necessary experts,
including mental health experts, without approaching the court for approval.
Similarly, in cases in which the GCD is unable to represent the defendant due to a
conflict of interest, the appointed conflict attorney does not have to apply to the court for
experts or investigators.180 Rather, the conflict attorney must submit a form entitled
“Request for Pre-Approval for an Expert Witness” 181 to the Deputy Director for Conflict
Case Management at the Georgia Public Defender Standards Council.182 The costs
associated with hiring these experts also come from the state funds appropriated to the
GPDSC for use by the GCD, and the GCD planned for and set aside money for experts
for each expected case requiring conflict counsel.183
The budget for the GCD, however, was based on a projected forty death penalty cases
and an additional nine conflict death penalty cases per year.184 As of early December
2005, forty-seven capital prosecutions—thirty-five handled by GCD and twelve handled
by a conflict defender—had commenced.185 Thus, it remains to be seen whether there
will be enough money in the GCD budget to allow GCD attorneys and conflict attorneys
to hire all necessary experts.
Based on this information, it is unclear whether the State of Georgia is in compliance
with Recommendation #3.

178

O.C.G.A. § 17-12-126(a) (2005).
Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author).
180
Protocol for the Appointment of Expert Witnesses and Investigators in Death Penalty Cases assigned
to Private Counsel after January 1, 2005, at http://www.gidc.com/cpdsystem-forms-conflictdp_protocol_experts.pdf (last visited on Aug. 23, 2005).
181
The Protocol for the Appointment of Expert Witnesses and Investigators in Death Penalty Cases
assigned to Private Counsel after January 1, 2005 refers to the “Request for Pre-Approval for an Expert
Witness,” but we were unable to locate a form by that name. However, the GPDSC website contains a
similar form entitled “Requisition for Employment of Expert Witness,” which appears as if it can be used
in death penalty cases.
182
Protocol for the Appointment of Expert Witnesses and Investigators in Death Penalty Cases assigned
to Private Counsel after January 1, 2005, at http://www.gidc.com/cpdsystem-forms-conflictdp_protocol_experts.pdf (last visited on Aug. 23, 2005).
183
Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author).
184
Georgia Public Defender Standards Council, Meeting Minutes (Aug. 22, 2003), at
http://www.gpdsc.com/aboutus-council-minutes-minutes_08-22-03%20.pdf (last visited on Aug. 24, 2005).
185
Fax from Chris Adams, Georgia Capital Defender (Dec. 2, 2005) (on file with the author).
179

318

D.

Recommendation #4
For cases commencing after the United States Supreme Court’s decision in
Atkins v. Virginia186 or the state’s ban on the execution of the mentally
retarded (the earlier of the two), the determination of whether a defendant
has mental retardation should occur as early as possible in criminal
proceedings, preferably prior to the guilt/innocence phase of a trial and
certainly before the penalty stage of a trial.

In all death penalty trials where the capital trial’s guilt/innocence phase took place on or
after July 1, 1988 (the date Georgia adopted a law banning the execution of certain
mentally retarded offenders), the timing of a mental retardation determination largely
depends upon at which point in the proceedings the defendant raises the issue of mental
retardation.
The defendant may raise the issue of mental retardation and obtain a determination of the
issue at three points during the proceedings: (1) pretrial, (2) guilt/innocence phase, and
(3) post-conviction.187 The determination of mental retardation, however, generally
occurs during the guilt/innocence phase of the capital trial.188 In fact, a determination of
mental retardation is made outside of the guilt/innocence phase only if the defendant
pleads “guilty but mentally retarded” and the judge accepts the defendant’s plea, or if the
defendant failed to raise the issue during the guilt/innocence phase, s/he may raise the
issue by petitioning for a writ of habeas corpus under the “miscarriage of justice” prong
of the habeas corpus statute.189
The State of Georgia, therefore, is only in partial compliance with Recommendation #4.
Although the State of Georgia does not require that determinations of mental retardation
be made prior to the guilt/innocence phase of a capital trial, it does require that these
determinations be made before the sentencing phase. It also grants defendants who failed
to raise the issue of mental retardation at trial another opportunity to raise the issue by
filing a writ of habeas corpus.
E. Recommendation #5
The burden of disproving mental retardation should be placed on the prosecution,
where the defense has presented a substantial showing that the defendant may have
mental retardation. If, instead, the burden of proof is placed on the defense, its
burden should be limited to proof by a preponderance of the evidence.

The State of Georgia does not require the prosecution to disprove mental retardation after
the defendant has presented a substantial showing that s/he may have mental retardation.

186
187
188
189

536 U.S. 304 (2002).
See supra notes 14-44 and accompanying text.
Id.
Id.

319

Rather, Georgia places the burden of proving mental retardation on the defendant. The
requisite burden of proof varies depending upon two factors: (1) when the guilt/innocence
phase of the defendant’s capital trial takes place; and (2) when the defendant raises the
issue of mental retardation.
In all death penalty cases where the guilt/innocence phase took place or takes place after
July 1, 1988, the defendant may raise the issue of mental retardation and obtain a
determination of mental retardation at three points during the proceedings: (1) pretrial,
(2) guilt/innocence phase; or (3) post-conviction.190 A defendant who pleads “guilty but
mentally retarded” has the burden of establishing that there is “sufficient factual basis” to
find that s/he has mental retardation in order for the judge to accept his/her plea of “guilty
but mentally retarded.”191 In contrast, when a claim of mental retardation is raised during
the guilt/innocence phase or post-conviction, the defendant has the burden of proving
mental retardation “beyond a reasonable doubt.”192
In all death penalty cases where the guilt/innocence phase took place before July 1, 1988,
the inmate may raise the issue of mental retardation only once by filing a petition for a
writ of habeas corpus.193 The defendant has the initial burden of presenting through
his/her petition and supporting evidence and any evidence presented at the hearing on the
petition, if held, “sufficient credible evidence” to create a “genuine issue regarding
[mental] retardation.”194 If the court finds a genuine issue of fact, it may grant the writ
for the limited purpose of conducting a Fleming trial on the issue of mental retardation.195
At the Fleming trial, the defendant has the burden of establishing his/her mental
retardation by a “preponderance of the evidence.”196
The State of Georgia, therefore, only is in partial compliance with Recommendation #5.
The State of Georgia does not place the burden of disproving mental retardation on the
prosecution, but instead places the burden of proof on the defendant. Additionally, the
burden of proof is not limited to a preponderance of the evidence, except in cases in
which the capital trial’s guilt/innocence phase took place before July 1, 1988, and the
inmate filed a petition for a writ of habeas corpus based on his/her mental retardation. In
all other cases, the defendant must establish mental retardation beyond a reasonable
doubt, except perhaps if the judge accepts a pre-trial plea.
F. Recommendation #6
During police investigations and interrogations, special steps should be
taken to ensure that the Miranda rights of a mentally retarded person are

190
191
192
193
194
195
196

Id.
Id.
Id.
See supra notes 45-61 and accompanying text.
Id.
Id.
Id.

320

sufficiently protected and that false, coerced, or garbled confessions are not
obtained or used.

The State of Georgia does not have any laws, rules, procedures, standards, or guidelines
explicitly requiring that special steps be taken to ensure that the Miranda rights of
mentally retarded offenders are sufficiently protected or that false, coerced, or garbled
confessions are not obtained or used.
However, police departments, sheriff’s departments, state law enforcement agencies,
transportation police departments, and university police departments in Georgia certified
by the Commission on Accreditation for Law Enforcement Agencies (CALEA)197 and/or
the Georgia Law Enforcement Certification Program (GLECP)198 are required to adopt
written directives establishing procedures to be used in criminal investigations, including
procedures on interviews and interrogations.199 CALEA further requires a written
directive for assuring compliance with all applicable constitutional requirements
pertaining to interviews, interrogations and access to counsel 200 and the GLECP requires
a written directive addressing confessions and admissions.201 Additionally, both the
Georgia Department of Community Affairs’ Model Law Enforcement Operations Manual

197

Forty-two police departments, sheriff’s departments, state law enforcement agencies, transportation
police departments, and university police departments in Georgia have been accredited or are in the process
of obtaining accreditation by the Commission on Accreditation for Law Enforcement Agencies (CALEA).
See CALEA Online, Agency Search, at http://www.calea.org/agcysearch/agencysearch.cfm (last visited on
Sept. 23, 2005) (use second search function, designating “U.S.” and “Georgia” as search criteria); see also
CALEA Online, About CALEA, at http://www.calea.org/newweb/AboutUs/Aboutus.htm (last visited on
Sept. 23, 2005) (noting that CALEA is an independent accrediting authority established by the four major
law enforcement membership associations in the United States: the International Association of Chiefs of
Police (IACP); National Organization of Black Law Enforcement Executives (NOBLE); National Sheriffs'
Association (NSA); and Police Executive Research Forum (PERF)). To obtain accreditation, a law
enforcement agency must complete a comprehensive process consisting of (1) purchasing an application;
(2) executing an Accreditation Agreement and submitting a completed application; (3) completing an
Agency Profile Questionnaire; (4) completing a thorough self-assessment to determine whether the law
enforcement agency complies with the accreditation standards and developing a plan to come into
compliance; (5) an on-site assessment by a team selected by the Commission to determine compliance who
will submit a compliance report to the Commission; and (6) a final decision on accreditation based on the
on-site
assessment
report.
See
CALEA
Online,
Accreditation
Process,
at
http://www.calea.org/newweb/accreditation%20Info/process1.htm (last visited on Sept. 23, 2005).
198
Ninety police, sheriff’s, state law enforcement, transportation police, and university police departments
have obtained certification under the GLECP. G EORGIA LAW E NFORCEMENT C ERTIFICATION P ROGRAM:
STANDARDS MANUAL, at intro. (3d ed. 2002) [hereinafter GLECP S TANDARDS] (noting that the Georgia
Law Enforcement Certification Program was established in 1997 as a stepping-stone to national
accreditation under CALEA’s Standards for Law Enforcement Agencies); Georgia Association of Chiefs of
Police, State Certified Agencies, at http://www.gachiefs.com/statecertification/StateCertifiedAgencies.html
(last visited on Sept. 23, 2005).
199
COMMISSION ON ACCREDITATION OF L AW ENFORCEMENT AGENCIES , STANDARDS FOR LAW
ENFORCEMENT A GENCIES, T HE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY
ACCREDITATION PROGRAM 42-2 (4th ed. 2001) [hereinafter CALEA S TANDARDS] (Standard 42.2.1);
GLECP S TANDARDS, supra note 198, at 4 (Standard 5.23).
200
CALEA STANDARDS , supra note 199, at 1-3 (Standard 1.2.3).
201
GLECP S TANDARDS, supra note 198, at 18 (Standard 4.2).

321

(MLEOM) and the Georgia Association of Chiefs of Police’s Sample Law Enforcement
Operations Manual (SLEOM) contain standards on Miranda rights and the voluntariness
and admissibility of confessions.202 It appears, however, that the CALEA, GLECP,
MLEOM and the SLEOM standards do not require special procedures for interrogating or
taking the confession of a mentally retarded person. Similarly, the required basic course
for peace officers includes training on interviews and interrogations,203 but it is unclear
the extent to which the peace officers’ basic course covers Miranda rights and the taking
of confessions of mentally retarded persons.
Based on this information, the State of Georgia fails to meet the requirements of
Recommendation #6.
G. Recommendation # 7
The jurisdiction should have in place mechanisms to ensure that, during
court proceedings, the rights of mentally retarded persons are protected
against "waivers" that are the product of their mental disability.

Courts can protect against “waivers” of rights, such as the right to counsel, by holding a
hearing (either sua sponte or upon the request of one of the parties) to determine whether
the defendant’s mental disability affects his/her ability to make a knowing and voluntary
waiver and by rejecting any waivers that are the product of the defendant’s mental
disability. It does not appear as if the State of Georgia requires courts to conduct
hearings to determine whether the defendant’s mental disability affects his/her ability to
make a knowing and voluntary waiver, especially in cases in which the court previously
held a hearing to determine the defendant’s competency to stand trial. In Colwell v.
State,204 the Georgia Supreme Court held that trial courts are not required to conduct a
further hearing on a defendant’s competence and on the knowing and voluntary nature of
his decision about his representation when “[the defendant] had just been found
competent after a lengthy competency trial, and trial court carefully explained [the
defendant]’s rights to him and made repeated and thorough inquiries of him concerning
decisions about representation and whether those decisions were freely made.”205
The State of Georgia, however, does seem to limit which rights can be waived and
expects trial courts to take certain measures when certain rights have been waived. For
example, the Georgia Supreme Court prohibits inmates who were tried before July 1,
1998 and who create a genuine issue regarding his/her mental retardation in their habeas

202

MLEOM, supra note 167.
GA. P EACE OFFICER STANDARDS & TRAINING C OUNCIL, 404 HOUR BASIC LAW ENFORCEMENT
TRAINING
COURSE
(11th
ed.
2003)
(table
of
contents),
available
at
http://www.gapost.org/pdf_file/bletc404.pdf (last visited on Oct. 4, 2005).
204
544 S.E.2d 120 (Ga. 2001).
205
Id. at 126.
203

322

petition from waiving their Fleming trial, which is where they receive a jury
determination on the issue of mental retardation.206
Based on this information, it does not appear that the State of Georgia is in compliance
with Recommendation #7.

206

Rogers v. State, 575 S.E.2d 879, 881-82 (Ga. 2003).

323

APPENDIX

Race and Death Sentencing in Georgia
1989-1998

Glenn Pierce
Michael L. Radelet
Raymond Paternoster

January 12, 2006

A

B

Race and Death Sentencing in Georgia
1989-1998

Concerns about the possibility of racial bias in death sentencing in the United
States have been voiced for several decades. In the 1972 decision in Furman v. Georgia,
which (in effect) struck down all existing death penalty statutes in the U.S., Justice
Marshall in particular rested his concurring decision in large part on concerns that capital
punishment was discriminatorily applied against black defendants.1 Since 1972 there
have been several research studies that have continued to examine the possible effects of
defendant’s or victim’s race on death sentencing decisions. 2 In this report, we focus our
attention to the State of Georgia to see if contemporary death sentencing decisions are
correlated with the racial characteristics of defendants and/or victims.
American death sentencing patterns today are even more strongly correlated with
race than they were before the Furman decision. Between 1930 and 1976 there were
3,859 executions in the U.S., 54.6 percent of which claimed the lives of black offenders.
Among executions for homicides, 1,664 (49.9 percent) were of white offenders and 1,670
(50.1 percent) were of black offenders.3 Today we measure offender’s race and ethnicity
more precisely, breaking down minority groups into black, Hispanic, Native American
and Asian categories. Among those on death row as of October 1, 2005, 1,532 (45.3

1

Furman v. Georgia, 408 U.S. 238, 374-66 (1972).
See U.S. GEN. ACCT . OFFICE, DEATH P ENALTY S ENTENCING: R ESEARCH INDICATES P ATTERN OF R ACIAL
DISPARITIES, GAO/GGD.90-57, at 5 (1990).
3
U.S. DEPARTMENT OF JUSTICE, C APITAL P UNISHMENT, 1976 NATIONAL PRISONER S TATISTICS
BULLETIN , SD-NPS-CP-5, at 13 (1977).
2

C

percent) were white and 1,850 (54.7 percent) were nonwhite.4 Therefore, if we compare
those executed for homicide between 1930 and 1967 and those on death row today, the
nonwhite proportion has actually increased from 50.1 percent to 54.7 percent. This does
not prove racial bias, but certainly raises flags and questions.
This report focuses on Georgia, the jurisdiction where more research on race and
death sentencing has been conducted over the past three decades than in any other state.
In the following pages we will first review studies that have examined race and death
sentencing in Georgia, and then describe a relatively modest study that we conducted to
ascertain if the race of homicide defendants and victims is correlated with contemporary
death penalty decisions in Georgia.

Previous Research
One of the most sophisticated studies of the effects of race on death sentencing
before the Furman decision was conducted in Georgia. That study focused on executions
for rape. Marvin Wolfgang and Mark Riedel examined 361 rape cases from Georgia,
1945-1965, and found that blacks convicted of raping white victims were
disproportionately sentenced to death.5 This difference remained after controlling for
possible aggravating factors, such as a contemporaneous felony offense, use of a weapon,
or the offender’s prior record of criminal convictions. In fact, Wolfgang and Riedel

4

NAACP LEGAL D EFENSE AND EDUCATIONAL FUND , INC., DEATH R OW U.S.A. 3 (2005), at
http://www.naacpldf.org/content/pdf/pubs/drusa/DRUSA_Fall_2005.pdf (last visited on Jan. 4, 2006).
5
Marvin E. Wolfgang & Marc Riedel, Rape, Racial Discrimination, and the Death Penalty, in C APITAL
PUNISHMENT IN THE UNITED S TATES (Hugo Adam Bedau & Chester Pierce eds. 1976); see also Marvin E.
Wolfgang & Marc Riedel, Rape, Race, and the Death Penalty in Georgia, 45 A M. J. OF O RTHOPSYCHIATRY
658 (1975).

D

concluded that race was the single most important factor in predicting death penalty
decisions for rape.6
After Furman, the first empirical study of death sentencing in Georgia focused on
the consistency of appellate decisions. In that study, Professor George Dix looked at how
appellate courts in Georgia, Florida and Texas ensured consistency in death sentencing.7
Dix criticized the Georgia Supreme Court for focusing too much on statutory aggravating
factors and not enough on mitigating factors, and for missing several opportunities to
help trial courts reach more consistent decisions.8 This conclusion was echoed in
research conducted by Ursula Bentele, who studied decisions made by the Georgia
Supreme Court in 1981.9 She concluded that the new (post-Furman) law in Georgia “has
failed to bring about fair and evenhanded imposition of death sentences. The safeguards
that the [U.S. Supreme Court] relied on to avoid discriminatory and freakish application
of the penalty have not performed that function.” 10
Other researchers have focused squarely on the question of whether there are
racial disparities in the imposition of Georgia death sentences. The first of these studies
was published by William Bowers and Glenn Pierce in 1980, and included results from
their study of death sentencing patterns in Georgia, Florida, Texas, and Ohio.11 In
Georgia, they studied 3,793 homicides and 99 death sentences, 1972-1977. They found
that 16.7 percent of the blacks who were suspected of killing whites were sentenced to

6

Id. at 115-18.
George E. Dix, Appellate Review of the Decision to Impose Death, 68 GEO. L.J. 97 (1979).
8
Id. at 123.
9
Ursula Bentele, The Death Penalty in Georgia: Still Arbitrary, 62 W ASH. U. L.Q. 573 (1985).
10
Id. at 638.
11
William J. Bowers & Glenn L. Pierce, Arbitrariness and Discrimination under Post-Furman Capital
Statutes, 26 CRIME & DELINQ. 563 (1980).
7

E

death, followed by 4.2 percent of the whites suspected of killing whites and .5 percent of
the blacks suspected of killing blacks.12 These racial disparities remained even after
restricting the analysis to homicides with accompanying felonies, the type of homicide
most likely to lead to a death sentence.13
Samuel Gross and Robert Mauro examined data on 2,126 Georgia homicides (and
additional homicides in seven other states) that occurred between January 1, 1976 and
December 31, 1980.14 While overall 3.7 percent of the homicide suspects were sent to
death row, the researchers found that 8.7 percent of those suspected of killing whites
were sentenced to death, compared to .9 percent of those suspected of killing blacks.15
Blacks suspected of killing whites were the most likely to be sentenced to death (20.1
percent), followed by whites who were suspected of killing whites (5.7 percent) and
blacks suspected of killing blacks (.8).16 Gross and Mauro tried to explain these
disparities by focusing only on homicides accompanied by other felonies, and then only
on homicides between strangers, and then only on multiple homicides, but the racial
disparities remained persistent and strong. After variables measuring race of defendant
and race of victim were entered into a multivariate model with measures of several
aggravating factors, the researchers concluded that “the odds of receiving the death

12

Id. at 594.
Id. at 599.
14
SAMUEL R. GROSS & R OBERT MAURO , D EATH & DISCRIMINATION : R ACIAL DISPARITIES IN C APITAL
SENTENCING (1989); see also Samuel R. Gross & Robert Mauro, Patterns of Death: An Analysis of Racial
Disparities in Capital Sentencing and Homicide Victimization, 37 STAN. L. R EV. 27 (1984).
15
Id. at 44.
16
Id. at 45. Because there were only 34 cases where whites were suspected of killing blacks, the analysis
does not focus on this category.
13

F

penalty for killing a white are approximately 7.2 times greater than the odds of receiving
the death penalty for killing a black.”17
By any measure, the most comprehensive research ever produced on sentencing
disparities in American criminal courts is the work of David Baldus and his colleagues
conducted in Georgia in the 1970s and 1980s.18 As four Supreme Court justices later
wrote, the study “is far and away the most refined data ever assembled on any system of
punishment, data not readily replicated through casual effort. Moreover, that evidence
depicts not merely arguable tendencies, but striking correlations, all the more powerful
because nonracial explanations have been eliminated.”19
Baldus’s work in Georgia actually was contained in two studies: the Procedural
Reform Study (PRS) and the Charging and Sentencing Study (CSS). The former
compares 156 pre-Furman and 594 post-Furman cases (1973-78) in which a jury
convicted a defendant of murder. The latter study examined a universe of 2,484
defendants (with a sample of just over 1,000) charged with homicide and who were
convicted of either murder or voluntary manslaughter, 1973-79.
The study was able to evaluate a wide array of variables -- more than 400 -- in
their ability to predict who is sentenced to death. The most important logistic regression
model used to summarize the data used 39 predictor variables. The model revealed that

17

Id. at 66.
DAVID C. B ALDUS ET AL., EQUAL JUSTICE AND THE DEATH P ENALTY (1990). Portions of the work by
Baldus and his colleagues with Georgia data can also be found in David C. Baldus et al., Arbitrariness and
Discrimination in the Administration of the Death Penalty: A Challenge to State Supreme Courts, 15
STETSON L. REV. 133 (1986), David C. Baldus et al., Comparative Review of Death Sentences: An
Empirical Study of the Georgia Experience, 74 JOURNAL OF CRIM . L. & C RIMINOLOGY 661 (1983), and
David C. Baldus et al., Monitoring and Evaluating Contemporary Death Sentencing Systems: Lessons
From Georgia, 18 U.C. DAVIS L. REV. 1375 (1985).
19
McCleskey v. Kemp, 481 U.S. 279, 342 (1987).
18

G

for similar homicides, the odds of a death sentence for those convicted of killing whites
in Georgia were 4.3 times higher than the odds of a death sentence for those convicted of
killing blacks. 20
The Baldus study measured and controlled for dozens of legally-relevant factors
that might (in theory) have an impact on death sentencing decisions. However, the final
model that statistically controlled for all these factors was unable to eliminate the strong
power of the victim’s race in explaining who was sentenced to death.
Replicating this study today would undoubtedly cost tens of millions of dollars.
However, the question remains whether race continues to correlate with Georgia death
sentencing with more contemporary data. If so, we know from the Baldus study that
conducting a much larger study and controlling for the effects of additional variables
would be unlikely to change the overall conclusions. We now turn to the methodology
we employed to ascertain if race effects are still evident in selecting who goes to death
row in Georgia.

20

Attorneys representing Georgia death row inmate Warren McCleskey took these data to the Supreme
Court in 1987, claiming unfair racial bias in the administration of the death penalty in Georgia. But the
Court rejected the argument, as well as the idea that a statistical pattern of bias could prove any bias in
McCleskey's individual case. McCleskey, 481 U.S. at 279. The vote in McCleskey was 5 to 4. Id.
Interestingly, the decision was written and the deciding vote cast by Justice Lewis Powell, who was then
serving his last year on the Court. Four years later, Powell’s biographer asked the retired justice if he
wished he could change his vote in any single case. Powell replied, “Yes, McCleskey v. Kemp.” Powell,
who voted in dissent in Furman and in his years on the Court remained among the justices who regularly
voted to sustain death sentences, had changed his mind. “I have come to think that capital punishment
should be abolished ... [because] it serves no useful purpose.” JOHN C ALVIN JEFFRIES, JR. JUSTICE LEWIS F.
POWELL, JR .: A BIOGRAPHY 451-52 (1994). Had Powell come to this realization a few years earlier, it is
quite likely that, as in 1972, the death penalty would have been abolished, at least temporarily.

H

Methodology
To study the possible relationships between the races of homicide defendants and
victims and death penalty decisions, researchers must begin by comparing two groups of
defendants and victims: those involved in death penalty cases and those involved in
homicides that do not result in a death sentence. Should rates of death sentencing vary
between races of defendants and victims (e.g., if higher rates of death sentencing are
found among those who kill whites than those who kill blacks), researchers must then
examine legally relevant factors to ascertain if these factors account for the different
rates.
To compare defendants sentenced to death with all homicide suspects, we first
need to select a time period for study. Studying individual years is problematic because
the year under study may be idiosyncratic, and one year’s worth of homicide data may
not provide enough information to allow the identification of long-term patterns. Thus,
in this study, to obtain a representative picture of death sentence decisions we examined
death sentencing over a ten-year period. In order to study contemporary death penalty
decision-making we wanted to use recent cases, but not so recent that a substantial
number of homicides from the period would not have yet reached final adjudication. To
meet these two considerations, we selected for study all homicides from Georgia that
occurred on or after January 1, 1989 and on or before December 31, 1998.
To make comparisons between all homicide suspects and defendants sentenced to
death, information was collected on 1) all homicides committed in Georgia over the tenyear study period, and 2) the subset of all those cases which ended with a defendant being
sentenced to death. This information was collected from two data sources.
I

Supplemental Homicide Reports (SHRs): The Supplemental Homicide Reports are
the FBI’s national data collection system for homicide incidents reported to law
enforcement agencies. SHR reports on homicides are collected by local police agencies
throughout the United States. These agencies report the SHR data to the FBI, either
directly or through their state’s crime reporting program. Information on each homicide
collected through the SHR reporting system is included in the FBI’s Uniform Crime
Reports.21 While the SHR reports do not record the suspects’ or victims’ names, they do
include the following information: the month, year, and county in which the homicide
occurred, the age, gender, race, and ethnicity of the suspects and victims, the victimsuspect relationship, the weapon used, and information on whether the homicide was
accompanied by additional felonies (e.g., robbery or rape).22 Since local law enforcement
agencies usually report these data long before the suspect has been convicted (or
sometimes even before the suspect has been arrested), these data are for homicide
“suspects,” not arrested defendants or convicted offenders.23
2. Death Sentence Data Set: Information on all cases that ended in a death
sentence for murders committed in Georgia during the study period was obtained by the
Georgia Death Penalty Assessment Team (“the team”). The team obtained the majority
of this information from Georgia “trial judge reports.” Georgia law requires trial judges
to complete trial judge reports in cases in which a sentence of death is imposed.24 The

21

See National Archive of Criminal Justice Data, Learn More About the Supplementary Homicide
Reports, http://www.icpsr.umich.edu/NACJD/SDA/shr7699d.html (last visited on Jan. 4, 2006).
22
Id.
23
Id.
24
See O.C.G.A. § 17-10-35(a) (2004); Green v. State, 242 S.E.2d 587 (Ga. 1978) (placing duty upon trial
judge, not defendant, in death penalty case to prepare trial report).

J

trial judge report, which is a multi-page questionnaire, requires judges to provide
information on a number of issues, including the race of the defendant and victim, the
aggravating and mitigating circumstances, and the date of the offense.25 In cases in
which the trial judge report was unascertainable or missing pertinent information, the
team reviewed Georgia Supreme Court decisions and contacted the defense attorneys to
obtain the necessary information. Once the team gathered all of this information, it was
sent to Professor Paternoster who, with the assistance of two graduate students, entered
the data into a SPSS file, checked it for accuracy from the SPSS file back to the original
data sources, and corrected any inaccuracies.
In addition to information on the races of suspects/defendants and victims, both
data sets collected data on legally relevant factors that may be important factors in death
penalty decisions. For this analysis, we examined two legally relevant factors that are
potentially related to the decision of who is sentenced to death: 1) whether the homicide
took the life of more than one victim, and 2) whether the homicide involved
accompanying felonies, such as a rape or a robbery. With these data, we were able to
classify each homicide in both the SHR and the Death Sentence Data Set as involving
zero, one, or two potentially aggravating circumstances.

25

The trial judge report specifically asks for the race of the defendant, but asks only whether the race of
the victim is the same as the race of the defendant. See Supreme Court of Georgia, Unified Appeal Report
of the Trial Judge, at http://www2.state.ga.us/Courts/Supreme/rules_UAP/uasect6.htm (last visited on Jan.
4, 2006). In six of the thirteen cases where the race of the victim was different from that of the defendant,
we obtained the race of the victim by contacting defendants' defense attorneys. For the other cases where
the race of the victim was not the same as the race of the defendant, it was assumed that white defendants
had black victims and black defendants had white victims.

K

Results
To examine the potential effects of the suspect’s and victim’s races and the two
measured aggravating circumstances on death penalty decisions in Georgia, we first
merged the two data sets: the Death Sentence Data Set and the data on homicide suspects
from the SHR data set. Cases were matched based on the victim’s race and
defendant/suspect’s race and the known aggravating circumstances. Homicide incidents
involving victims or defendants/suspects who were neither white nor black were
excluded from the analysis because their low frequency among Georgia homicide cases
prohibits statistical analysis. Of the 59 cases in the Death Sentence Data Set, there were
three cases missing information on the race of the defendant, and four cases missing
information on the victim’s race.26 Thus, our analysis involving victim’s race uses 55
death penalty cases (Tables 1 and 2); for defendant’s race we use 56 cases (Table 3), and
we use 55 cases where we examine both defendant’s and victim’s races (Table 4). Other
researchers have used similar matching methods.27
Table 1 presents data on 55 cases that resulted in the death penalty in which the
races of both the defendant and victim were either black or white. We categorize the
death penalty cases according to whether the homicide victim was black or white, and
compare these tallies to the racial distribution of all Georgia homicides collected through
the SHR reporting system. Table 1 shows that the death penalty in Georgia is imposed in

26

Thus for death sentences we have; 56 cases where the offender was either white or black, 55 cases
where the victim was either white or black, and 55 cases when we examine the race of offenders and
victims in combination with race being restricted to with white or black.
27
See, e.g., GROSS & MAURO, supra note 14, at 38-39.

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only a small minority of homicide cases: only 1.037 percent of homicides with a
suspected perpetrator during the study period ended with a death sentence. However,
2.245 percent of those who were suspected of killing whites were sentenced to death (37
÷ 1,648), compared to .492 percent of those who were suspected of killing blacks (18 ÷
3,658). Comparing these death-sentencing rates (2.245 ÷ .492), the data show that among
all homicides with known suspects, those suspected of killing whites are 4.56 times as
likely to be sentenced to death as those who are suspected of killing blacks. This
difference, as measured by the Chi-Square test, is statistically significant.28
It is possible that the higher proportion of death sentences for those suspected of
killing whites versus those suspected of killing blacks is because white victim homicides
are typically more aggravated than black victim homicides. Under these circumstances, a
higher level of aggravation among white victim homicides would explain the higher
death-sentencing rate. To test for this possibility we developed an index of aggravating
circumstances composed of two of the most common aggravating factors in criminal
homicide cases: accompanying felonies committed in conjunction with the homicide and
multiple victims. The index enables us to categorize homicides by level of aggravation:
1) neither of the two measured aggravating circumstances are present, 2) one aggravating
circumstance is present, and 3) both aggravating circumstances are present. We were
able to classify the cases by level of aggravation in both the SHR and the Death Sentence

28

The Chi-Square test is one of the most commonly used statistical measures of significance. It is a test
of statistical significance for the difference between the observed frequencies and the expected frequencies
under the null hypothesis, which in this case involves the relationship between death sentence decisions and
our independent variables, such as race of the victim. See, e.g., ALAN AGRESTI & BARBARA F INLEY,
STATISTICAL METHODS FOR THE S OCIAL S CIENCES 248-72 (3d ed. 1997). We also report in Tables 1-4 a
more conservative Chi-Square measure called “Yates’ continuity correction.” This statistic is basically a
minor adjustment of the traditional Chi-Square test, leading to more accurate estimates in distributions with
small samples.

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Data Sets. This procedure allows us to test whether the race of the victim remains
significantly related to death sentencing rates while controlling for varying levels of
aggravating circumstances present in the homicide cases.
Table 2 examines the relationship between death sentencing and victim’s race
controlling for level of aggravating circumstances. This Table divides homicides into the
three categories of aggravating circumstances; those with zero, one, or two of the
measured aggravating circumstances present. Examining the three “totals” rows in Table
2 shows that level of aggravation is indeed correlated with death sentencing rates: only
.23 percent of the cases with neither of the aggravating circumstances we measured
resulted in a death sentence (9 ÷ 3,962), compared to 3.02 percent of the cases with one
aggravator and 13.21 percent of the cases with both aggravators. This shows that the
death sentencing system in Georgia is far from totally arbitrary; it is rational insofar as it
does respond to different levels of aggravation. It is the more aggravated cases where
death sentences are most likely to be imposed. 29
Nonetheless, the data presented in Table 2 show that the level of aggravation does
not explain the overall race of victim effect, as the victim’s race is still correlated with
death sentencing rates within each level of aggravation. Among cases with neither of the
measured aggravating circumstances present, .61 percent of those suspected of killing
whites are sentenced to death and .07 percent of those suspected of killing blacks, a ratio

29

For example, Bowers and Pierce, supra note 11, at 598-99, found that Georgia homicides that included
felony circumstances were more likely to result in a death sentence than other homicides. Gross and
Mauro, supra note 14, at 59, found that death sentencing rates increased from 0.4 percent of all homicides
with no measured aggravators to 57.1 percent of the cases which contained the three aggravators they
measured. Similarly, BALDUS ET AL., supra note 18, at 90, report a “strong association between the number
of aggravating circumstances and the probability of receiving a death sentence.”

N

of 8.66. Thus, among suspects with neither measured aggravating circumstance present,
those with white victims are 8.66 times more likely to be sentenced to death than those
with black victims. Using a Chi-Square test, we see that these differences are statistically
significant at the .01 level.
This disparity diminishes among cases where there is one aggravating
circumstance present. Here we find that those who are suspected of killing whites are
3.33 times more likely to be sentenced to death than those who are suspected of killing
blacks. The Chi-Square test tells us that the probability that these patterns could result by
chance is less than 1/1000. Finally, among cases with two aggravating circumstances
present, those who are suspected of killing whites are 1.61 times more likely than those
suspected of killing blacks to be sentenced to death. While this is still a strong
difference, because there are only 53 cases with two aggravating circumstances present
and it is difficult to generalize from such a small number of cases, the Chi-Square test is
not significant.30 That the race effects diminish at higher levels aggravation is a pattern
also found by previous researchers, and also is evidence of some rationality in the
system.31
Table 3 presents data on the relationship between death sentencing and the race of
the suspect. The data show that given a homicide, white suspects are 3.92 times more
likely than black suspects to be sentenced to death, which is a bit smaller than the race of

30

Equally important, when we breakdown the 53 cases with two aggravating circumstances by race of
victim, we find fewer than five cases in two of the four cells (i.e., there were four offenders convicted of
killing whites and three convicted of killing blacks). The Chi-square test is not a reliable test of statistical
significance when expected cell frequencies include five or fewer cases.
31
BALDUS ET AL., supra note 18, at 153-54, report that the largest race-of-victim effects in their Georgia
data are found among cases with mid-levels of aggravation.

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victim differences observed in Table 1. Overall, 2.34 percent of the white suspects were
sentenced to death, compared to only .597 percent of the black suspects. These
differences are statistically significant at the .001 level. However, this pattern may arise
because intra-racial homicides are far more common than inter-racial homicides -- whites
tend to kill white victims and blacks tend to kill other blacks, and the data in Table 1 has
already told us that suspected killers of whites are more likely to be sentenced to death
than those who are suspected of killing blacks. As a result, white homicide offenders
may receive death sentences at the higher rate because of who they are more likely to kill
(i.e., other whites). To address this question, in the next Table we examine death
sentence rates by race of the suspect while controlling for race of victim.
Table 4 displays death-sentencing rates by race of victim, broken into the two
categories of suspect’s race. Table 4 shows that among white victim homicides, the race
of the suspect has no statistically significant association with death sentencing decisions.
That is, whites who are suspected of killing whites have rates of death sentencing that are
similar to blacks who are suspected of killing whites. Similarly, among cases where
blacks are killed, 1.9 percent of white suspects are sentenced to death, compared to only
.45 percent of the black suspects. However, while the difference between the two rates
may at first appear large, the Chi-Square statistics tells us that there is no statistically
significant difference in death sentencing rates among those who are suspected of killing
blacks between white and black defendants.32 Although this difference appears to be
important, it is not statistically significant; there are only two cases where whites were

32

Indeed, the difference in rates is largely dependent on two cases of involving a white offender and
black victim, which is too few cases to actually calculate a chi-square test.

P

sentenced to death for killing blacks, which is too few to use the Chi-Square test and
draw generalizations. This frequency is too low for the Chi-Square test to be used as a
test for statistical significance.33 Overall, the data in Table 4 show that among the four
categories of suspect/victim race, the lowest rate of death sentencing is found among
cases with black suspects and black victims. This finding raises the question of whether
the comparatively low death sentencing rate among black-on-black cases is an artifact of
low levels of aggravation in such cases.
To examine the combined effects of victim’s race, suspect’s race, and aggravating
circumstances on death penalty decisions in Georgia, a multivariate statistical technique
was used. For the analysis of dichotomous dependent variables (such as death sentence
vs. no death sentence), the appropriate statistical technique is logistic regression
analysis.34 Table 5 presents the results of the logistic regression analysis. The
independent variables are all entered into the analysis as dichotomous measures. Thus,
where there was one aggravating circumstance or two aggravating circumstances, such
data were entered as dichotomous variables. Cases with neither aggravating

33

Id.
As we have explained elsewhere, “Logistic regression models estimate the average effect of each
independent variable (predictor) on the odds that a convicted felon would receive a sentence of death. An
odds ratio is simply the ratio of the probability of a death sentence to the probability of a sentence other
than death. Thus, when one’s likelihood of receiving a death sentence is .75 (P), then the probability of
receiving a non-death sentence is .25 (1-P). The odds ratio in this example is /75/.25 or 3 to 1. Simply put,
the odds of getting the death sentence in this case is 3 to 1. The dependent variable is a natural logarithm of
the odds ratio, y, of having received the death penalty. Thus, y=P / 1-P and (1) ln(y) = âo + Xâ + ξi where
âo is an intercept, âi are the i coefficients for the i independent variables, X is the matrix of observations on
the independent variables, and ξi is the error term. Results for the logistic model are reported as odds
ratios. Recall that when interpreting odds ratios, and odds ratio of 1 means that someone with that specific
characteristic is just as likely to receive a capital sentence as not. Odds ratios of greater than one indicate a
higher likelihood of the death penalty for those offenders who have a positive value for that particular
independent variable. When the independent variable is continuous, the odds ratio indicates the increase in
the odds of receiving the death penalty for each unitary increase in the predictor.” Glenn L. Pierce &
Michael L. Radelet, Race, Region, and Death Sentencing in Illinois, 1988-1997, 81 OR . L. R EV. 39, 59
(2002).
34

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circumstance present were left out of the equation so they could be used as the reference
or comparison category. Similarly, variables measuring the racial combinations of
victims and suspects were entered into the analysis as dichotomous variables: one for
white suspects and white victims, a second for white suspects and black victims, and a
third for black suspects and white victims. Cases with black suspects and black victims
were left out of the equation so they could be used as the reference or comparison
category.
To examine the estimated effect of a single independent variable, controlling for
the effects of all other variables, we use the exponentiated value of the Beta (ß)
coefficient, which is the logistic regression beta coefficient, Exp(ß). Only three of the
five independent variables show statistically significant effects on death penalty decisions
in Georgia: cases with one aggravating circumstance, cases with two aggravating
circumstances, and cases where whites are suspected of killing other whites. The Exp(ß)
coefficients in Table 5 shows that the odds of receiving a death sentence for homicide
cases with one aggravating circumstance increase by a factor of 15.826 controlling for the
other independent variables, and that the odds of receiving a death sentence for homicide
cases with two aggravating circumstances increase by a factor of 59.711, again
controlling on the other independent variables. In addition, Table 5 shows that the odds
of receiving a death sentence for homicide cases where the suspect is white and the
victim is white increase by a factor of 6.097 (relative to the reference group of black
suspect/black victim homicides), controlling on the other independent variables. The
other two combination of victims’ and suspects’ race (i.e., black on white homicides and
white on black homicides) are not statistically significant predictors of death sentence
R

decisions in Georgia. Overall, the logistic analysis shows that homicide cases with
higher levels of aggravating circumstances are statistically more likely to receive the
death sentence in Georgia, and that white-on-white homicides are more likely than blackon-black homicides to result in a death sentence, even after the level of homicide
aggravation is statistically controlled.

Conclusion
This study focused on death sentences in Georgia that were imposed for
homicides committed over a ten-year period: January 1989 through December 1998.
Since previous studies by David Baldus and his colleagues focused on homicides through
1979, and Gross and Mauro studied death sentencing through 1980, the data presented
herein significantly update our previous understandings about death sentencing in
Georgia.
Our data indicate that there is at least some rationality or consistency in Georgia
death sentencing. Table 2 shows that death sentences are more likely to be imposed in
the more aggravated homicide cases, and racial disparities in death sentencing are lower
among the more highly aggravated cases.
Nonetheless, we also find that both the race of the defendant and the race of the
victim predict who is sentenced to death, with white suspects and those who kill white
victims being more likely to be sentenced to death than black suspects and those who kill
black victims. The data in Table 4, however, shows that only 525/5,257 homicides in the
study (9.9 percent) are inter-racial. This makes it impossible to examine the effect of
defendant’s race without also considering victim’s race. Table 5 shows that rather than
S

talking about the race of defendant or race of victim effects alone, we need to speak of
their combined effects. When we do so, we find that our two measures of aggravation
continue to predict who is sentenced to death. In addition, and controlling for the two
measures of aggravation, we find that white suspects with white victims are significantly
more likely than black suspects with black victims to be sentenced to death. In short, the
widespread disparities documented by researchers with data from the 1970s have
continued in the 1990s.
These relatively recent findings from Georgia are quite consistent with many
other post-Furman studies that have found persistent race-of-victim disparities in death
sentencing. Those studies conducted prior to 1990 were reviewed by the General
Accounting Agency; their report concluded that in 82 percent of the studies “race of
victim was found to influence the likelihood of being charged with capital murder or
receiving the death penalty.”35 Since then, studies in Florida,36 Illinois,37 Maryland,38 and
California,39 among others,40 have also found that those who are suspected of killing
whites are much more likely to be sentenced to death than those suspected of killing nonwhites. Clearly, the Georgia data echo what has been found elsewhere: in contemporary
death sentencing decisions in the United States, race matters.

35

See U.S. GEN. ACCT. OFFICE, supra note 2, at 5.
Michael L. Radelet & Glenn L. Pierce, Choosing Those Who Will Die: Race and the Death Penalty in
Florida, 43 FLA. L. REV. 1 (1991).
37
Pierce & Radelet, supra note 34.
38
Raymond Paternoster et al., Justice by Geography and Race: The Administration of the Death Penalty
in Maryland, 1978-1999, 4 MARGINS 1 (2004).
39
Glenn L. Pierce & Michael L. Radelet, The Impact of Legally Inappropriate Factors on Death
Sentencing for California Homicides, 1990-1999, 46 S ANTA CLARA L. REV. 1 (2005).
40
For a review, see David C. Baldus & George Woodworth, Race Discrimination in the Administration
of the Death Penalty: An Overview of the Empirical Research with Special Emphasis on the Post-1990
Research, 39 C RIM. L. B ULL. 19