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The Night the Lights Went Out in Georgia

Brennan Center fellow Andrew Cohen on how the state is about to execute a man after a patently unfair trial.

December 2, 2016

William Sallie is scheduled to die next week in Georgia for a murder he committed in 1990 and for many people that is the end of the matter. But the story of his second trial, the one that resulted in the conviction and death sentence he now faces, should shock the conscience of every person who believes that due process of law is not reserved only for the innocent. Here’s what recent court pleadings allege.

In the middle of an awful custody fight with his estranged wife, Sallie murdered his father-in-law and grievously wounded his mother-in-law. His first trial, in 1991 ended in a conviction and death sentence but that was overturned by the Georgia Supreme Court after it was discovered that one of Sallie’s court-appointed lawyers was at the same time working as a law clerk for judges in the same district. His second trial, in 2001, was affected by juror misconduct and judicial negligence to an extent I cannot recall in 20 years as a legal analyst.

One of Sallie’s potential jurors, a woman, repeatedly lied under oath about her background during the voir dire process. She allegedly lied about having no personal experience with spousal and family violence, about the criminal history of her family members, about the ways in which she and her family had been crime victims, about contentious divorces she had experienced, and the resulting child custody and support fights she had fought. All of this, remember, in a case involving a murder occurring in the context of divorce, custody, and domestic violence. She nevertheless made it onto the panel.

If lying about her relevant history and experiences were all this juror had done it should have been enough to remove her from the jury before trial. And even if she had told the truth no reasonable judge should have permitted someone to sit as a juror whose life had such close parallels with the lives of the people at the heart of a murder case. But no one did anything, not the trial judge who as we will see should have known better nor Sallie’s trial counsel, who evidently was oblivious to the truth about the juror’s life experiences.

Indeed, one of the arguments Sallie’s lawyers now make as they scramble to save his life is that his trial attorney failed to explore the inconsistencies in this juror’s statements. But here the story gets even stranger. The trial judge refused to remove the juror from the panel even after Sallie’s trial attorney objected to the fact that she insisted she would follow Biblical law over Georgia law when it came to capital sentencing decisions. This, too, automatically should have precluded her from jury service in a death penalty case. But the Georgia Supreme Court ruled years later that this did not show bias on her part.

But there was more. According to court documents filed by the defense, after Sallie was sentenced to death the trial judge revealed that the female juror had been carrying on an adulterous affair with another juror during the pendency of the case (raising questions about his qualifications to sit in judgment on Sallie). The trial attorneys inexplicably did not adequately investigate this bombshell dropped by the judge even though they had 15 months to do so before their perfunctory motion for a new trial was denied. Why the trial judge did not on his own order a new trial given what he knew about the jurors’ affair is another inexplicable component of this case.

There is still more. It turns out that this judge himself—Sallie’s judge, the one who sentenced him to death—had previously presided over three of the first four divorces the female juror had obtained before she joined Sallie’s jury. One of those divorces, Sallie’s lawyers allege, was particularly acrimonious and contained dramatic courtroom scenes. How this judge could not have remembered all that, either before or after Sallie’s trial, is incomprehensible. So is the fact that no court since has overturned the conviction or death sentence based on this record.

Here’s how Sallie’s lawyers frame their case: You have a man scheduled to be executed next week who was represented by an arguably incompetent attorney, then judged by a dishonest juror who believed that Biblical law trumped the Constitution, and then sentenced by a judge who forgot or ignored the fact that the juror against whom bias was alleged had been a frequent presence in his own courtroom in cases eerily similar to the Sallie case.

And all of this has been countenanced for the past decade or so by state and federal judges who have hidden behind procedural standards to avoid facing the substance of misconduct in the case. One judge after another has looked at this record and concluded that Sallie has no right to relief, that the “rule of law” requires finality and certainty even with these basic questions of fairness swirling around the result here.

Sallie’s lawyers now are asking the U.S. Supreme Court to halt the execution so that, finally, some judge somewhere can hold a substantive hearing to explore the truth about what happened in that second trial. Georgia, meanwhile, insists that Sallie is barred from that hearing, and from a meaningful remedy, because he missed a deadline by eight days at a time when he had no lawyer at all and could not possibly have known from his jail cell the significance of the procedural hurdles the state threw up to defend this conviction and sentence.

No one argues that Sallie deserves leniency for his crime. But no one deserves to be executed in the circumstances presented here, where basic due process was repeatedly denied by our courts of law. Each of us, including those of us accused of committing the most serious crimes, are entitled to be judged by fair and honest jurors, who pledge to apply the Constitution and not the Old Testament, and then to be sentenced by judges who have the courage and dignity to call out blatant misconduct when they see it. That didn’t happen in this case and the Supreme Court should do something about it.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

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