Hope for the Best and Prepare for the Worst: the Capital Defender's Guide to Reciprocal Discovery in the Sentencing Phase of Georgia Death Penalty Trials

• Citation: Vol. 23 No. 4
• Publication year: 2010

Georgia State University Law Review

Volume 23 , ,

Article 1

Issue 4 Summer 2007

6-1-2007

Hope for the Best and Prepare for the Worst: The Capital Defender's Guide to Reciprocal Discovery in the Sentencing Phase of Georgia Death Penalty Trials

Adam Levin

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Levin, Adam (2006) "Hope for the Best and Prepare for the Worst: The Capital Defender's Guide to Reciprocal Discovery in the Sentencing Phase of Georgia Death Penalty Trials," Georgia State University Law Review: Vol. 23: Iss. 4, Article 1. Available at: http://digitalarchive.gsu.edu/gsulr/vol23/iss4/1

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HOPE FOR THE BEST AND PREPARE FOR THE WORST: THE CAPITAL DEFENDER'S GUIDE TO RECIPROCAL DISCOVERY IN THE SENTENCING PHASE OF GEORGIA DEATH PENALTY TRIALS

Introduction

Jeremy Gross was on trial for the violent murder of a young store clerk, and the prosecution pursued the death penalty.¹ His lawyer offered no legal defense as to Jeremy's guilt because of the insurmountable evidence. Instead, the lawyer provided a sympathetic explanation for the crime Jeremy committed. This explanation came in the form of mitigating evidence offered at the sentencing phase of Jeremy's trial in an attempt to spare his life.⁴ In preparation for the sentencing phase, the defense spent years scouring Jeremy's background and amassed a wealth of information, which ultimately saved Jeremy from execution.⁵ In Georgia, this mitigating evidence is now discoverable to prosecutors in cases where defendants elect to use (opt-in) Georgia's Criminal Procedure Discovery Act (hereinafter "the Act").⁶ The Act is a major obstacle for defense attorneys hoping to tailor the presentation of mitigating evidence after conducting an exhaustive search that may reveal evidence unfavorable to the defendant.

The purpose of the reciprocal discovery provision of the Act was to promote efficiency and fairness by giving both defendants and prosecutors access to their counterpart's bounty of potential evidence

1. Alex Kotlowitz, In the Face of Death, N.Y. times, July 6, 2003, § 6 (Magazine), at 32.

2. Id. Evidence in the trial included a security video showing Mr. Gross shooting the young store clerk at point-blank range while the clerk appeared to beg for his life as he reached out his hands in a last-chance request for help. Id.

3. See id.

4. Id.

5. Id. (including information about his negligent and abusive mother, foster homes, and Jeremy's unrealized potential as a young boy).

6. See O.C.G.A. § 17-16-2(e) (Supp. 2007).

7. See discussion infra Parts I-III. The phrases "opt in" and "opt out" are used to describe a defendant's decision to use or not use, respectively, the reciprocal discovery provisions of the Act.

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in felony trials.⁸ Prior to the Criminal Justice Act of 2005,⁹ which amended the Act, Georgia's reciprocal discovery statute did not cover items to be used for mitigation during the sentencing phase of death penalty trials.¹⁰

This Note seeks to highlight the issues associated with the Act and its application in death penalty trials, particularly those created by the recent inclusion of the sentencing phase in reciprocal discovery. Part I explains the Act's mechanics, history, and adoption of the subsequent amendment making the statute applicable in the sentencing phase.¹¹ Part II summarizes the Georgia Supreme Court case of State v. Lucious and analyzes its effects on defendants who do not elect (opt out of) reciprocal discovery. Part III applies the analysis of Lucious and its progeny to the amended portion of the Act to determine what effects the amended Act will have on those who

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opt out. Finally, application of the Act to the sentencing phase of Georgia's death penalty trials raises interesting constitutional challenges. Section IV analyzes several of the possible challenges and resolves them in favor of finding the Act constitutional.¹⁴ Additionally, Section IV makes suggestions for legislation intended to preempt any constitutional challenges to the Act.¹⁵

I. The Act

The United States Supreme Court has held that due process does not prevent a state from "experimenting with systems of broad

8. See O.G.G.A. §§ 17-16-1 to -10, 20, 22 (Supp. 2007); Ga. Governor's Message, Governor of Ga., Governor Purdue Signs Criminal Justice Act of 2005 (April 5, 2005) [hereinafter Governor's Message].

9. 2005 Ga. Laws 20.

10. See Governor's Message, supra note 8.

11. See infra Part I.

12. See infra Part II.

13. See infra Part III.

14. See infra Part IV.

15. See infra Part IV.C.

2007] CAPITAL DEFENDER'S GUIDE TO RECIPROCAL DISCOVERY 997

discovery."¹⁶ Indeed, states vary widely in their implementation of pre-trial criminal discovery.¹⁷

In Georgia, the Act provides for a two-way street of discovery in felony trials. Reciprocal discovery in felony cases applies when the defendant chooses to have the Act apply and provides written notice to the prosecuting attorney.¹⁹ Both the prosecutor and defense counsel acquire particular obligations after a defendant opts in to the Act, as discussed below in Part 11(C).²⁰

A. Discovery Prior to the Act

Prior to the Act, defendants in Georgia had no general right to pretrial discovery in a criminal trial.²¹ Instead, defendants could access certain information as required by the Fourteenth Amendment's Due Process Clause, the corresponding doctrine of Brady v. Maryland, and a limited number of Georgia statutory and constitutional provisions ²⁴

Prior to the Act, prosecutors had access to far less pretrial information than defendants. Prosecutors were restricted to obtaining three categories of information: "[1] notice of the defendant's intent to rely on an insanity defense, [2] notice of the

16. Wardius v. Oregon, 412 U.S. 470,474 (1973).

17. Samuel r. Gross, Expert Evidence, 1991 Wis. L. rev. 1113, 1141 n.79 (1991). See generally, e.g., Mich. Ct. r. 6.201(A)(l)-(6); N.y. Crim. P. Law § 240.45; Cal. Penal Code § 1054.4 (2005).

18. See O.C.G.A. §§ 17-16-4 to -10 (Supp. 2007).

19. O.C.G.A. § 17-16-2(a) (Supp. 2007). Note that application of the Act is automatically triggered if a defendant seeks civil discovery under the Georgia Civil Practice Act. O.C.G.A. § 17-16-2(c) (Supp. 2007). Additionally, in a multi-defendant case, if one defendant elects to have the Act apply then the Act will apply to all defendants. O.C.G.A. § 17-16-2(a) (Supp. 2007).

20. See O.C.G.A. § 17-16-4 (Supp. 2007). The Act and its requirements are applicable if, and only if, a defendant elects to have them apply. O.C.G.A. § 17-16-2(a) (Supp. 2007).

21. See Shearer v. State, 376 S.E.2d 194, 196 (Ga. 1989) ("There is no general constitutional right to discovery in a criminal case----") (quoting Weatherford v. Bursey, 429 U.S. 545, 559 (1977)).

22. U.S. const, amend. xiv, § 1. The Fourteenth Amendment's Due Process Clause requires the prosecution to disclose evidence favorable to the defendant, but full discovery in the ordinary sense of a civil suit is not implicated. See Moore v. Illinois, 408 U.S. 786, 794-95 (1972).

23. 373 U.S. 83 (1963).

24. See, e.g., O.C.G.A §§ 17-7-110, -210 to -211 (repealed 1995); State v. Madigan, 292 S.E.2d 406, 407-08 (Ga. 1982).

25. See John r. Martin & Donald F. Samuel, The 1994 Georgia Criminal Procedure Discovery Act, 31 Ga. St. Bar J. 54, 55 (1995).

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defendant's intent to introduce evidence relating to the victim's prior misconduct, [3] and copies of scientific reports prepared by defense experts of certain evidence."²⁶ Additionally, general limitations implicated by the Fifth Amendment's privilege against self-incrimination hampered prosecutorial attempts at pretrial discovery.²⁷

B. Passage of the Act

Motivation to pass the Act included a desire to alleviate overburdened courts by providing more accurate information for use in the bargaining stages of criminal prosecutions.²⁸ Additionally, Georgia legislators and prosecutors harbored a desire to end unsavory trial practices.²⁹

State Representative Thomas E. Cauthorn, III, sponsored the bill, which ultimately became the Act.³⁰ While Representative Cauthorn shepherded the bill through Georgia's legislature, members from Georgia's criminal defense bar and prosecutors from several counties provided the substance of the bill.³¹ After its introduction to the Georgia General Assembly in 1993, the Act became effective on January 1, 1995.³²

26. Id. at 55. Seealso O.C.G.A. § 17-7-130 (requiring defendants to file notice of intent to rely on an insanity defense); Syfrett v. State, 435 S.E.2d 470, 473 (Ga. Ct. App. 1993) (discussing timeliness of notice required to be given by the defendant before introducing evidence of the victim's prior misconduct); Rower v. State 443 S.E.2d 839, 842 (Ga. 1994) (discussing defendant's obligation to disclose scientific testing results and specifically those involving written reports by the defendant's experts intended to be introduced at trial).

27. See generally U.S. const, amend. v ("No person ... shall be compelled in any criminal case to be a witness against himself . . . ."). But see Williams v. Florida, 399 U.S. 78, 85 (1970) (holding that statutory mandates to disclose possible alibis were outside the scope of Fifth Amendment protection, except when the only witness to disclose is the defendant).

28. See 1994 Ga. Laws pp. 1895-96.

29. See Jeffrey A. Hannah, Legislative Review, 11 Ga. St. U. L. Rev. 137, 137-38 (1994) (mentioning the unsavory trial practices of "surprise and trial by...