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Five Things Wrong With Georgia’s Death Penalty

On the eve of the next execution, a look at the state’s history of bad lawyering and faulty evidence.

Since December 2014, Georgia has executed a man whose drunk lawyer bungled the case, a man with intellectual disabilities, a veteran with post-traumatic stress disorder, and a woman who planned but did not actually commit murder.

On Thursday, the state will put to death a man who was not conclusively identified by DNA from the crime scene.

These cases are no outliers; they are emblematic of a particularly harsh time in our state’s history when death sentences were handed out frequently despite substantive and procedural flaws. And they encapsulate what’s wrong with capital punishment in Georgia.

Related To learn more about the death penalty — and Robert Holsey’s case — visit The Next to Die.

Here, a closer look at those flaws.

Offering ineffective assistance of counsel

Georgia’s statewide public defender office opened in 2005, and in the past ten years, there has been a sharp decline in death sentences. Before 2005, however, the right to counsel was a crapshoot for capital defendants. Robert Wayne Holsey was convicted and sentenced to death in 1997 for armed robbery of a convenience store and the murder of a Baldwin County Sheriff’s Deputy Will Robinson. Andy Prince was appointed to represent him. Prince chose not to present a defense based on Holsey’s intellectual disability; he retained a psychologist but never presented evidence of any tests or opinions about Holsey’s condition. Tests later confirmed that Holsey had an IQ of 70, a borderline intellectual disability diagnosis. If Prince had shown jurors that Holsey was intellectually disabled, his execution might have been barred under the Supreme Court’s mandate in Atkins v. Virginia.

Prince drank a quart of vodka each night during Holsey’s trial (he eventually was sentenced to prison and disbarred for his conduct in another case). He brought in an inexperienced attorney to assist him on the eve of the penalty phase and told her to handle mitigation issues. Prince was paid $3,500 by the state to hire a mitigation specialist but didn’t do so. If he had, the jury might have learned that Holsey was beaten as a child for wetting the bed until he was 13 years old. A state court judge later found that Holsey had received ineffective assistance of counsel and ordered a new sentencing hearing. But the Georgia Supreme Court reversed that judge’s ruling and reinstated Holsey’s death sentence. Robert Wayne Holsey was executed December 9, 2014.

Executing veterans with mental illness

Andrew Brannan was a decorated Vietnam veteran who was convicted and sentenced to death for the 1998 murder of Laurens County Deputy Sheriff Kyle Dinkheller during a traffic stop. In Vietnam, Brannan saw many die, including two commanding officers, and had survivor’s guilt during the following decades. His service records praise Brannan for outstanding conduct in a combat environment. Brannan had no criminal history and had been declared “100 percent disabled” by the Veterans Administration due to PTSD in 1990 and bipolar disorder in 1996. Brannan had been living in a shack in the woods without water or electricity.

The traffic stop escalated wildly into a gunfight between Brannan and Deputy Dinkheller after Brannan became erratic and pulled a rifle from his car. The episode was recorded on the dashboard camera of the patrol vehicle. Deputy Dinkheller died at the scene. The jury never heard the details of Brannan’s military service or heard from his VA psychiatrist about Brennan’s PTSD — or that he had not taken his medication for several days before the crime. Andrew Brannan was executed on January 13, 2015.

Applying an impossibly high standard of proof for intellectual disability

Georgia made history in 1988 when it became the first state to ban the execution of people with intellectual disability (formerly known as mental retardation). But today, Georgia is the only state to require a defendant to prove his intellectual disability “beyond a reasonable doubt,” a standard that has, predictably, proven nearly impossible to overcome. In 2002 when the Supreme Court decided in Atkins that it was unconstitutional to execute people with intellectual disability, Georgia maintained its high standard of proof while other states applied the lower, “preponderance of the evidence” standard.

Warren Hill was convicted and sentenced to death in 1991 for killing a fellow prisoner. The State’s doctors quickly declared that Hill was not “mentally retarded,” clearing the way for his execution. A decade later, however, they came forward and admitted they had been wrong; that Hill was intellectually disabled beyond a reasonable doubt. But procedural barriers prevented Hill’s new diagnosis from ever being considered in Georgia’s courts or federal courts. Warren Hill was executed on January 27, 2015.

Arbitrarily applying the death penalty

Kelly Gissendaner was convicted and sentenced to death for the murder of her husband, Douglas Gissendaner, in 1997. While Gissendaner was legally culpable for murder, she was not the person who killed her husband; she was not even present at the crime scene. Her boyfriend agreed to carry out the planned killing, and now is serving a life sentence. He is eligible for parole in seven years, because he made a deal with prosecutors. Gissendaner’s death sentence was the first since the reinstatement of the death penalty in Georgia in 1976 in which a person who did not commit the murder was sentenced to death.

While incarcerated, Gissendaner was a model prisoner, helping fellow inmates who were contemplating suicide. Her case for parole garnered support from Pope Francis and Former Georgia Supreme Court Chief Justice Norman Fletcher, who has recently opposed the death penalty. The Board of Pardons and Paroles heard a renewed request for clemency and pleas from her children to spare her life. Her request was denied. Kelly Gissendaner was executed on September 30, 2015.

Scheduling executions despite inconclusive DNA evidence

Marcus Ray Johnson was convicted and sentenced to death for the murder of Angela Sizemore in 1994. Johnson’s conviction rests on dubious eyewitness testimony and inconclusive physical evidence. The blood on the ground at the site where she was murdered was never tested, for example, and none of Johnson’s DNA was found inside or near the car where her body was found.

Johnson was first scheduled to be executed in 2011 but he was granted a stay after police belatedly turned over new biological evidence from the murder scene. That evidence was tested but was not conclusively linked to Johnson. At that hearing, a forensic pathologist also testified that the pocket knife, which prosecutors claimed was the murder weapon, did not test positive for blood and did not match the victim’s wounds. Johnson’s new trial motion was nevertheless denied. A request for clemency has been made to the Board of Pardons and Paroles, who will hear his case on November 18. His execution is scheduled for November 19, 2015.

Sara J. Totonchi is the Executive Director of Southern Center for Human Rights, a Georgia-based advocacy group.