Ga. lawmakers push death penalty rule change; want 'hybrid' system
By Greg Bluestein
ATLANTA — Georgia lawmakers are taking the first steps toward revamping the state's capital punishment rules after a deadlocked jury allowed courthouse gunman Brian Nichols to avoid the death penalty.
A measure filed this week would make Georgia one of six states that allow the death penalty without a unanimous jury decision.
Georgia would also become the only state with the death penalty to have a "hybrid" system that factors in both the jury and judge's decision, said Richard Dieter of the Death Penalty Information Center.
The Georgia bill would allow a judge to impose a death sentence if at least ten jurors vote for capital punishment. State law now requires a unanimous jury to return a death sentence.
The proposal is another sign of the growing backlash to a jury's decision not to sentence Nichols to death for murdering a judge, a court reporter, a sheriff's deputy and an off-duty federal agent in a 2005 shooting spree that began in a downtown Atlanta courthouse.
Republican state Rep. Tim Bearden, a former police officer, sponsored the measure.
"To me, this always has been a victim's rights bill to make sure we don't forget about the victims once the crime scene tape is put away," Bearden said.
State law now requires a judge to decide whether to sentence a defendant to life in prison, with or without the possibility of parole, if any of the 12 jurors will not support a sentence of death.
Superior Court Judge James Bodiford was forced to make that choice Saturday after the Nichols jury deadlocked at 9-3, with nine in favor of the death penalty and the other three in favor of life without parole.
Fulton County District Attorney Paul Howard said jurors had told him the three holdouts refused to deliberate and were adamantly against the death penalty. One of the three, he said, was listening to headphones during the closed-door deliberations.
The Georgia House has twice passed proposals over the last two years to allow judges to impose a death sentence if one or two jurors vote against it. Both plans failed in the Senate amid concerns it would put too much power in the hands of a judge.
Nichols would not have gotten the death penalty under the bill, which requires at least 10 jurors to agree on death.
But the Nichols case has given supporters of the changes new momentum.
State Sen. Preston Smith, who voted against a similar proposal in March, has said he will reconsider the changes. And Bearden said he expects support from other legislators who are frustrated with death penalty opponents who intentionally sabotage capital cases.
"The wheels of justice turn slowly," he said. "But they shouldn't be ground to a halt."
Thirty-six states allow the death penalty, according to the Death Penalty Information Center. Four states - Florida, Alabama, Delaware and Montana - allow a judge to impose capital punishment after a jury issues a nonbinding recommendation. Nebraska has a similar law, but relies on a three-judge panel to make the decision.
Georgia's proposal would still require a death penalty if a jury reaches a unanimous decision. But it would also give the judge the power to impose the death penalty if one or two jurors voted against it.
This sort of compromise could make Georgia more "vulnerable" to legal challenges, said Dieter.
"Georgia would have the only statute in the country like this, and it could lead to the argument that it's cruel and unusual because its purpose is to get more death sentences," he said. "The more out of line to the rest of the country it is, the greater the risk that it could be overturned."
Other critics say legislators shouldn't consider upending centuries of legal tradition in the wake of one of Atlanta's most notorious crimes.
State Rep. Mark Hatfield said a gut-reaction to the Nichols case "misses the larger point: That's going to apply in every case in which somebody is going to be put on trial for the death penalty. And we know clearly from history that we have people on death row that are innocent."
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