Tomorrow, the State of Georgia intends to execute William Sallie, who was convicted of killing a man in 1990. It would be Georgia's 9th execution this year, a modern state record and nearly twice the previous high-water mark of 5 executions, set 1st in 1987 and again in 2015.
I served as a justice on the Supreme Court of Georgia for over 15 years. During that time I participated in dozens of death-penalty cases and affirmed many of them. That experience, though, exposed me to some of the significant flaws in the system - not just the injustice of the death penalty itself, but specific problems with the way capital cases are handled. Mr. Sallie's case is a prime example.
Perhaps the biggest problem with Georgia's system, and one of the reasons the state carries out so many executions, is that it often fails to provide people with lawyers. Mr. Sallie, for example, missed a filing deadline for a federal review of his case by 8 days, in part because he didn't have a lawyer at the time to help him. And this isn't just a delay tactic; he has several strong claims about constitutional failings during his trial that, if proved, could require the reversal of his conviction. As things stand, he will be executed without review.
Fundamental fairness, due process and the prohibition against cruel and unusual punishment require the courts to provide an attorney throughout the entire legal process to review a death sentence. Virtually every capital-punishment state has this safeguard. Georgia is an outlier.
I saw this firsthand as the presiding justice on the State Supreme Court in 1999, in an appeal of a post-conviction hearing for a man named Exzavious Gibson, who was 17 at the time of his crime. It was a critical proceeding, where a lawyer should have raised important details about whether he received adequate representation during his trial - except that, ironically, no volunteer attorney was available. Mr. Gibson, who was poor and apparently, from the records, intellectually disabled and afflicted by acute mental health problems, was forced to represent himself.
That sham of a proceeding is one of the most deplorable vignettes in Georgia's legal history. But a majority of my fellow justices were less moved, and the court decided, 4-3, that people with death-penalty convictions have no right to counsel at that critical post-conviction stage - a ruling still in force today.
As a result, a door that would have been open to Mr. Sallie in almost any other state was closed to him in Georgia. If it were open, he would be able to present the facts about his trial, which appear to show serious problems with juror bias.
Mr. Sallie's lawyers amassed volumes of public records and witness statements showing that one of the jurors, despite having a known bias, apparently misled the trial judge and the parties in order to join the jury. (She omitted vital, likely disqualifying information, including striking similarities between her traumatic history of divorce and interstate child custody fights and the domestic strife at the center of Mr. Sallie's case.) In 2012, after his conviction, she bragged to an investigator that she had persuaded the jury, which was evenly divided between life and death, to vote unanimously for death.
The problem is not just Georgia. The United States Supreme Court has not ruled that the Constitution guarantees a right to an attorney during the critical post-conviction review stage in state courts. Georgia continues to deny counsel - and denies a man like William Sallie the opportunity to defend his life.
Source: The New York Times, Op-Ed; Norman S. Fletcher served on the Supreme Court of Georgia for over 15 years and was its chief justice from 2001 to 2005, November 5, 2016
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