Not So Shocking: the Death of the Electric Chair in Georgia at the Hands of the Georgia Supreme Court in Dawson v. State - Patricia Roy

• Publication year: 2002

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Not So Shocking: The Death of the Electric Chair in Georgia at the Hands of the Georgia Supreme Court in Dawson v. State

The electric chair is indigenous to the United States: it was invented here and is not used as an execution method anywhere else in the world.¹ However, the electric chair is facing its own mortality in this country. Currently, only one of the thirty-eight states that practices capital punishment requires electrocution as the sole method of execu- tion.² Georgia was among this minority until April 28, 2000, when the Georgia Legislature ("Legislature") amended section 17-10-38 of the Official Code of Georgia Annotated (hereinafter "Death Penalty Statute"), switching from electrocution to lethal injection as the sole method of execution for capital offenses.³ However, the Legislature preserved the electric chair for those capital offenders whose crimes were committed prior to May 1, 2000.⁴ No other legislative body in the country had changed its execution method to lethal injection while still requiring electrocution for certain death row inmates.⁵ Typically, states that maintain electrocution after changing to lethal injection avoid judicial review by using lethal injection unless the inmate chooses electrocution.⁶

The Legislature's amendment opened the door for the Georgia Supreme Court to revisit the issue of the constitutionality of death by electrocution.⁷ In a four to three decision, the supreme court in Dawson v. State and Moore v. State (consolidated cases for purposes of interim appeal, hereinafter "Dawson"),⁸ held that the Legislature's change to lethal injection constituted objective evidence that the people of Georgia condemned electrocution and that its future use would constitute cruel and unusual punishment in violation of the Georgia Constitution.⁹ Therefore, the court determined that those portions of the Death Penalty Statute that retained electrocution were void.¹⁰ Consequently, capital offenders previously sentenced to die in the electric chair will be executed by lethal injection. The Georgia Supreme Court is thus far the only appellate court at the state or federal level to declare electrocution cruel and unusual punishment.¹¹ The court's decision is informative because it provides Georgia's first modern constitutional analysis of the Cruel and Unusual Punishment Clause as applied to a method of execution.¹² It also serves as an interesting case study of the democratic process.

I. Facts

Prior to Dawson, the Georgia Supreme Court was a reluctant pioneer. Despite the national disfavor into which electrocution had fallen, the court resisted declaring electrocution unconstitutional until the Legislature changed to lethal injection while retaining electrocution. At that point, the court actively sought an appropriate vehicle to reevaluate the constitutionality of electrocution. In fact, after the change to lethal injection, the supreme court stayed capital cases that were in the final stage of the appeals process until the court settled the issue.¹³ A year after Georgia's change to lethal injection, the court constructed an appropriate case by combining Dawson v. State and Moore v. State.¹⁴ Both cases were before the court on interim appellate review, and once their applications for review were granted, the court consolidated the cases and converted them to an appeal on the question of "whether electrocution remains a constitutional method of execution in Georgia,"¹⁵ limiting its review to the state constitution. This was Dawson's first appeal to the supreme court but was Moore's fourth. Moore's previous direct appeal and two habeas petitions had been unsuccessful.¹⁶ At the trial level, the court in Dawson ruled that electrocution was unconstitutional under the state and federal constitutions, while the court in Moore upheld electrocution. The supreme court combined the two cases, plausibly to resolve the contradictory trial court rulings and to create a complete evidentiary record, which Dawson alone did not provide. At the trial level in Dawson, the State, despite warnings by the trial judge, declined to enter any evidence in support of its position that electrocution remained constitutional. Moore's case, however, was replete with evidence from both the State and the defense.¹⁷

In Moore's case, the record recalls the events of the afternoon of December 12, 1976. Teresa Allen, an eighteen year old who worked as a cashier at a Majik Market convenience store in Cochran, Georgia, was kidnapped from her place of employment. Carzell Moore and Roosevelt Green had robbed the store, abducted Ms. Allen, and fled in her car. Moore drove the car while Green raped the young woman. The two then exchanged places, and Green drove while Moore raped Ms. Allen. Moore then shot Ms. Allen with a 30.06 rifle, firing one shot into her abdomen and another into her face, in an attempt to make her identification difficult. Two days later, Ms. Allen's body was found lying near a dirt road in Monroe County. On February 15, 1977, a grand jury indicted Moore and charged him with rape and first-degree murder. Following a jury trial, Moore was sentenced to death for both offenses.¹⁸

Moore's lengthy appellate history spans twenty years.¹⁹ Most notably in 1987, the Eleventh Circuit Court of Appeals set aside Moore's death sentence based on erroneous jury instructions. The court of appeals found that during the sentencing phase of Moore's trial, the trial court failed to inform the jury of its option to impose a life sentence even if it found a statutory aggravating circumstance.²⁰ Therefore, Moore was not sentenced to death at the time the supreme court granted his interim review application, which raised a potential standing issue not addressed in the supreme court's opinion.

Moore first moved the trial court to bar electrocution in 1995 prior to the Legislature's change to lethal injection, but was denied on the ground that the issue had been decided repeatedly in Georgia, and, therefore, did not need to be revisited.²¹ In 2000 after Georgia changed to lethal injection, Moore sought reconsideration, arguing that the first hearing should be re-opened because it was prematurely aborted after only one witness testified. The trial court granted the motion and conducted a full evidentiary hearing on March 13-14, 2001, in the Superior Court of Monroe County before the Honorable Arthur Fud-ger.²² Both the State and Moore presented extensive testimony, including Georgia's protocols for execution by electrocution and lethal injection.²³ The States' experts testified, inter alia, that (1) "Georgia's electrocution protocol results in immediate unconsciousness upon the initial application of electricity, and that this unconsciousness continues throughout the execution process;"²⁴ (2) death results primarily from the "denaturing" or cooking of the brain from the electricity; (3) the brain reaches between 135 and 145 degrees Fahrenheit during the electrocution; (4) the inmate may retain functioning in the brain segment that controls basic life functions and that breathing or "agonal gasps" may occur after the electrocution; and, (5) the brain is destroyed by the electrical current. In addition, the State presented victims of a lightning strike and an accidental electrocution who suggested that they experienced no pain at the moment of electrocution.²⁵

Moore's experts testified that Georgia's electric chair likely does not produce instantaneous unconsciousness because despite the high voltage applied, the skull shields the brain from much of the electricity.²⁶ In addition, one expert stated that the alternating current could reactivate the brain "causing the perception of excruciating pain and a sense of extreme horror."²⁷ The defense also offered evidence that in two executions the inmates continued to breath after being electrocuted, and an additional cycle of electrocution became necessary. In one case, the prisoner not only appeared to be breathing during the first and second applications of electricity, but also appeared to be conscious during the process, as his head bobbed side to side, a movement that the autonomic nervous system does not produce.²⁸ The defense also presented autopsy reports of twenty of the twenty-three men executed in Georgia from 1976 to October 2001. The reports established that prisoners' bodies are burned to different extents in electrocution, and that "slippage" of the skin on the scalp, back of the head, and legs also occurs.²⁹ Moore further argued that the Legislature's change to lethal injection constituted objective and clear indicia of the contemporary values of the people of Georgia and to "permit electrocution would abrogate what is now an evolving standard of decency under Georgia law."³⁰ The trial court concluded that the evidence was conflicting and subject to conjecture and ruled that Moore had not met his burden of proof that death by electrocution constituted cruel and unusual punishment.³¹ Moore then filed his Application for Interim Review, which the Georgia

Supreme Court granted.³² Eventually, Moore pleaded guilty and is serving a life sentence without the possibility of parole.³³

Timothy Dawson's alleged crimes transpired two decades after Moore's. Just after 8:00 a.m. on October 18, 1998, a maid at the Atlanta Hilton & Towers discovered the bodies of three men in their twenty-fourth floor room. Each man was lying face down on the floor. The men were each stripped down to their underwear, had been robbed, and had been shot in the head several times. Dawson stands accused of the killings as well as the shooting deaths of two others. Police allege that Dawson had been on a week-long crime binge that culminated in the triple homicide.³⁴ After Dawson's arrest, the State indicted him in Fulton County, Georgia on four counts of murder, among others, and thereafter sought the death penalty.³⁵

On July 22, 1999, Dawson moved the trial court to bar...