We need your help.
On March 27, 2016, the State of Georgia executed Daniel Lucas. His execution marks the fifth person executed this year. We must end this trend of violence that is plaguing our communities. We are powerful united in our efforts to abolish the death penalty in Georgia. Last week we organized a call-in to Governor Deal urging him to influence his parole board. We stood outside of Daniel's clemency hearing to show solidarity with Daniel, his family, and his legal team. There is more to be done.
Please join Georgians For Alternatives to the Death Penalty ( GFADP) as we strategize on what we can continue to do to bring attention to the fact that there are several more dates to come.
When: May 12, 2016
Time: 6:30pm until 8:00pm
Location: 75 Marietta Street, 5th floor/ Suite 501, Atlanta, GA 30303
We at GFADP look forward to hearing your input on May 12, 2016. If you are unable to attend, but would like to get involved go to our website at www.gfadp.org or contact Dorinda Tatum at 404-749-6889 or firstname.lastname@example.org.
Dorinda on behalf of GFADP
Last night the State of Georgia executed Daniel Lucas. He was the fifth person executed this year. Y’all, it is only April.
A very important piece of doing death penalty abolition work is lifting up the person executed and highlighting their full humanity. Daniel said it best when he wrote: “Some guys ask, “Why change when they are going to kill you?” But I think that if you become a better person, accomplish your goals, and leave something of yourself behind, you are showing that you are a person capable of change, good, and that there is hope even for the worst of people."
Daniel started practicing Buddhism in 2010. Given this, we wanted to make sure that the vigils highlighted Daniel’s faith. There were Buddhist leaders present at the vigils at the Capitol and at Jackson. We learned that Daniel was thrilled to know that we were honoring that part of him. There was an international call to prayer for Daniel with monasteries all over the world praying for him. It was incredibly moving to learn that his body will be returned to the Shambhala Meditation Center in Decatur, where someone will be with his body 24 hours a day until his funeral on Saturday.
One of the beautiful parts of the vigils is that people get an opportunity to share either personal experiences with the person and/or what they’ve learned about that person through others who knew them. This is one of the ways we honor that the person is more than the worst thing they’ve ever done. We learned that Joshua Bishop, who was executed last month, and Daniel were very close friends and that in fact, before Josh was executed, he wrote a letter to the parole board on Daniel’s behalf. Josh described Daniel as the person you went to do feel grounded and as “a source of inspiration, for me, and many other guys on our cellblock…Daniel had the most impact on other men with the way [he] has chosen to live his life here.”
We have the incredible opportunity of meeting new people at the vigils that for various reasons have been inspired to get involved. Some of those people included two high school acquaintances of Daniel’s and people who were incarcerated with Warren Hill and Brian Terrell who have continued to come back. I wanted to include a link to photos that were taken at the Jackson vigil.
Last night was gut wrenching and painful. We extend our deepest sympathizes to Daniel’s family and friends. We are grateful for the incredible work of his legal team. One of his lawyers and his spiritual advisor witnessed Daniel’s execution. Please keep them in your thoughts.
Something that was highlighted for me last night was the incredible grace and compassion Daniel exhibited in his last words. He said: “To the Moss family, I’m sorry for Mrs. Moss. And to family and friends, I love them.” And then he recited a Buddhist prayer: "All beings are basically good, all beings are basically kind, all beings are basically strong, all beings are basically wise.”
Thank you all for everything that you do to highlight and end this barbaric practice that strips away at our humanity every time an execution moves forward. We are grateful for you and need you all now more than ever. We are expecting more warrants to be issued.
Onward and in solidarity,Kathryn Hamoudah on behalf of GFADP
The Georgia Board of Pardons and Parole is holding a hearing for Daniel Lucas on Tuesday, April 26 at 9:00 am. He is scheduled to be executed on Wednesday, April 27 at 7:00pm, unless the board intervenes. You can read Daniel’s clemency petition here.
Here are three things you can do:
While the parole is the only entity that can grant clemency, the five members are appointed by the Governor. Please take a moment to contact Governor Deal and urge him to intervene. Please take this action TODAY. Below is a sample script.
“Hi, my name is ______, and I am a Georgia voter from ______. I am writing to ask you to urge your parole board to grant clemency for Daniel Lucas. Mr. Lucas is scheduled to be executed on April 27 and I am deeply troubled that Georgia might proceed with this execution. Again, please urge your parole board to grant Daniel Lucas clemency. Thank you.
Governor Nathan Deal
Office of the Governor
203 State Capitol; Atlanta, GA 30334
Kenny Fults was executed last night at 7:37pm. The state went forward despite the fact that Kenny was intellectually disabled and at least one juror and Kenny’s own defense attorneys had used racial slurs against him. The parole board and the courts refused to intervene. Kenny was the fourth person executed in Georgia this year. We know that rampant racism is not unique in the criminal legal system. But we expect our state to do better. We expect the parole board, entrusted with the duty to show mercy and act as a failsafe when the courts get it wrong, to do the right thing. Yet we see them time and time again choose vengeance over mercy.
We learned a few days ago that Daniel Lucas has an execution date on Wednesday, April 27, and we’ve been told to expect more execution dates to be set in the coming months.
While we are seeing progress nationally with criminal justice reforms and an emphasis on rehabilitation and redemption, the folks on the row are completely left out of this conversation by virtue of being condemned to die. They become invisible and forgotten by many. Their stories of redemption and rehabilitation are seldom known. And there are many.
This slew of executions is upsetting and horrifying and not at all in touch with the momentum away from the death penalty in Georgia and the rest of the nation. Today, death sentences are rarely imposed by Georgia juries, a fact that speaks volumes about Georgians’ current attitude toward the death penalty. The state would nonetheless lead us to believe that these executions are being done in our names.
People have been asking “what can we do?” We know that you all are a creative and passionate group. We need you. For those of you in Atlanta, please join us next Thursday, April 21 at 6:30 for our monthly meeting. This meeting will be dedicated to strategizing about what we can do to bring attention to the fact that our state executed 5 people in 2015, and 4 people so far this year with two more planned and even more to come.
When: Thursday, April 21, 2016
Location: 75 Marietta Street, 5th floor/Suite 501, Atlanta, GA 30303
If you are unable to attend the meeting on the 21st or you’re outside of Atlanta and want to do more, please contact us.
There is a lot of work to do and we are so grateful to be in community and in struggle with all of you.
Kathryn Hamoudah on behalf of GFADP
We're very sorry to share that the Georgia Board of Pardons and Parole denied Kenny Fults' clemency petition. Please plan to attend a vigil near you. Click here for a full list of vigil sites:
PUBLISHED: 18:35 EST, 11 April 2016 | UPDATED: 18:35 EST, 11 April 2016
ATLANTA (AP) — The State Board of Pardons and Parolesdeclined to grant clemency for a Georgia death row inmate scheduled to die this week.
Kenneth Fults, 47, is set to be put to death atby injection of the barbiturate pentobarbital at the state prison in Jackson. Fults pleaded guilty in 1997 to killing 19-year-old Cathy Bounds in January 1996, and a jury sentenced him to die.
The parole boardheld a clemency hearing for Fults that wasn't open to the public or the media. As is its custom, the parole board did not give a reason for denying clemency, saying only that its members considered the facts and circumstances in the case. The parole board is the only entity that can commute a death sentence in Georgia.
This undated photo released by the Georgia Department of Corrections, shows Death row inmate Kenneth Fults. The Georgia State Board of Pardons and Paroles has set a clemency hearing for Fults scheduled to be put to death next week. Fults was convicted of killing Cathy Bounds, who was shot five times in the back of her head. Prosecutors say Fults killed Bounds after breaking into her house during a weeklong crime spree in January 1996.
In a clemency petition submitted to the parole board, Fults' lawyers detailed a childhood characterized by neglect and abuse at the hands of heavy-drinking family members and his mother's string of violent boyfriends.
"Throughout his life, Kenneth Fults was abandoned and rejected by those who were supposed to care for him, ridiculed and dismissed by those who could have helped him, and beaten up and down by family members and strangers alike," his lawyers wrote.
Fults has an intellectual disability that means he "functions in the lowest 1 percent of the population," meaning he has insufficient reasoning abilities, lacks impulse control and fails to learn from experience, the clemency petition says.
He is extremely remorseful, having told Bounds' mother at trial that he would trade places with Bounds if he could, and took responsibility for his actions by entering a guilty plea, his lawyers wrote.
Fults' trial lawyer failed to tell the jury during sentencing that Fults is intellectually disabled and didn't go into the details of his rough childhood, his lawyers wrote. Jurors quoted in the clemency petition say the trial lawyer slept through parts of the sentencing and didn't seem prepared or interested in protecting the best interests of his client.
His death sentence is unfair because one of the jurors who sentenced him to die was motivated by racial prejudice, Fults' lawyers wrote.
During jury selection, Thomas Buffington told the judge and lawyers on both sides he felt no racial prejudice. He was selected for the jury that sentenced Fults to death.
An investigator who was part of Fults' legal team reached out to Buffingtonto ask about his experience on the jury.
"Once he pled guilty, I knew I would vote for the death penalty because that's what that (N-word) deserved," Buffington said, according to an affidavit signed April 12, 2005.
Buffington died in 2014.
Though many of these arguments have already been rejected by various courts, Fults' lawyers say the parole board isn't bound by the same rigid rules and ask the board to commute his sentence to life without parole.
Fults' lawyers also have asked the U.S. Supreme Court to halt his execution and to consider his claims that his death sentence is unconstitutional because of Buffington's alleged racial prejudice.
Prosecutors have said Fults killed Bounds during a weeklong crime spree that started when he stole two guns during burglaries. After trying unsuccessfully to kill his former girlfriend's new boyfriend with one of the stolen guns, Fults broke into the trailer next to his, where Bounds lived with her boyfriend.
Bounds, who was home alone, pleaded for her life, but Fults forced her into the bedroom, wrapped electrical tape around her head, put her face-down on the bed, put a pillow over her head and shot her five times in the back of the head, prosecutors said.
Fults would be the fourth man executed in Georgia this year. Another man, Daniel Lucas, is scheduled to die.
Georgians For Alternatives to the Death Penalty ( GFADP) Strategy Session/Monthly Meeting on April 21, 2016
Did you Know? Since February the state of Georgia has already executed three people, Brandon Jones ( February 3, 2016), Travis Hittson ( February 17, 2016), and Joshua Bishop ( Marcy 31, 2016). Kenny Fults is scheduled to be executed, . We are still waiting to hear if the Georgia Board of Pardons of Parole will grant Kenny clemency. Thank you to everyone who took action. As you know, there is a date set for Daniel Lucas on . More warrants may be issued, but we must stay vigilant in our efforts to end this horrible practice once and for all.
We need your help in ending a culture of violence and death by advocating against ending human life. As an abolitionist, I strongly believe that we are more powerful united in our efforts to abolish the death penalty in Georgia than divided. So please join Georgians For Alternatives to the Death Penalty ( GFADP) as we strategize on what we can do to bring attention to the fact that our state executed 5 people in 2015, 3 people this year with two more planned and even more to come.
Location: 75 Marietta Street, 5th floor/Suite 501, Atlanta, GA 30303
We look forward to seeing on April 21, 2016. Please let us know if you plan to attend as we prepare to get a head count for refreshments.
Dorinda on behalf of GFADP
As you know, the Georgia Department of Corrections has scheduled an execution date for Kenny Fults for Tuesday, April 12 at 7:00pm. We now know that at least one juror and Kenny’s own defense attorneys had used racial slurs against him, including calling him “a little n____.” This racism violated Kenny's constitutional right to a fair trial and an impartial jury. Despite this documented racism and the unconstitutionality of Kenny's jury, Georgia still plans to execute Kenny.
Please support efforts to stop Kenny’s execution. Visit www.savekennyfults.com and sign his clemency petition.
Below is a piece that was published last year in Mother Jones about Kenny’s trial and the racism that permits his case.
If the state goes forward with Kenny’s execution, he will be the 4th person executed this year. This must stop. Please take action today.
A prejudiced juror, a racist lawyer, and a death sentence no court is willing to reconsider.
By Marc Bookman | Tue Mar. 24, 2015 6:15 AM EDT
"The one place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box." —Lawyer Atticus Finch in Harper Lee's To Kill A Mockingbird
In April 2005, nearly eight years after Kenneth Fults was sentenced to death for kidnapping and murdering his neighbor Cathy Bounds in Spalding County, Georgia, one of the trial jurors made a startling admission under oath: He'd voted for the death penalty, he said, because "that's what that nigger deserved."
It shouldn't come as too much of a surprise, given the circumstances—a black man admitting to the murder of a white woman in the deep South—that some white jurors might secretly harbor racist views. The surprising part was that this juror, Thomas Buffington, came right out and said it. And what should have been the most surprising development of all (alas, it wasn't) came this past August, when a federal appeals court, presented with ample evidence, refused to consider how racism might have affected Fults' fate.
In fact, state and federal courts have routinely avoided the evidence and consequences of racism in the criminal-justice system. (See "5 Death Penalty Cases Tainted by Racism .") Consider one of the most famous examples, the 1987 Supreme Court case of McCleskey v. Kemp, in which lawyers for Warren McCleskey, a black man sentenced to death for killing a white police officer, presented statistics from more than 2,000 Georgia murder cases. The data demonstrated a clear bias against black defendants whose victims were white: When both killer and victim were black, only 1 percent of the cases resulted in a death sentence. When the killer was black and the victim white, 22 percent were sentenced to death—more than seven times the rate for when the races were reversed.
Prosecutors sought death for black defendants in 70 percent of murder cases with white victims, but just 15 percent of cases in which the victim was black.
It wasn't just jurors who were biased. Prosecutors sought the death penalty for black defendants in 70 percent of murder cases when the victim was white, but only 15 percent when the victim was black.
The Supreme Court was less than impressed with all of this. Justice Lewis Powell, in a 5-4 majority opinion he would later call his greatest regret on the bench, wrote that McCleskey could not prove that "the decisionmakers in his case acted with discriminatory purpose." In short, evidence of systemic racial bias had no relevance in individual cases. Further on, Powell got down to his true concern: "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system."
Justice William Brennan dissented with one of the most memorable statements of his iconic career: "Taken on its face, such a statement seems to suggest a fear of too much justice." He went on: "The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role."
Georgia executed McCleskey in 1991, but the McCleskey rationale—which the New York Times labeled the "impossible burden" of proving that racial animus motivated any particular prosecutor, judge, or jury—has been used by dozens of courts to reject statistical claims of discrimination in capital cases, even though today's numbers are not much better .
The Fults case was different, though. Here was an actual juror explaining his decision to impose the death sentence through a blatantly racist lens. It was precisely the sort of evidence the Supreme Court claimed was lacking in the McCleskey case. So why has Kenneth Fults not been granted a new sentencing?
Fults during a prison visit with his son
Justice Powell's concerns are understandable. After all, what part of the criminal justice system is untouched by racism? Some death penalty critics, in fact, view capital punishment as a direct descendent of lynching.
The phrase "legal lynching" first appeared in the New York Times during the infamous 1931 Scottsboro Boys trials, in which nine black youths were charged with raping two white women in Alabama. Their lack of counsel, coupled with the explicit exclusion of black jurors, led the Supreme Court to intercede twice and reverse convictions.
It's hard to read those opinions today without feeling a sense of horror. Within two weeks of the alleged crime, eight of the nine young men had been sentenced to death in three separate trials by the same jury. Although there was no shortage of black men in Scottsboro County who were legally eligible to serve on juries, there was no record of any of them ever serving on one. Perhaps most remarkably, none of the defendants had a lawyer appointed to represent him until the morning of trial. In 2013, more than 80 years after the arrests, the Alabama Board of Pardons and Paroles posthumously pardoned the three Scottsboro Boys whose convictions still stood.
Do "not take Jews, Negroes, Dagos, Mexicans, or a member of any minority race on a jury, no matter how rich or well educated," reads a 1963 Dallas prosecution manual.
We have not come nearly as far from these outrages as you might think. People of color are still dramatically underrepresented  on juries and grand juries, even though excluding people based on race is illegal and undermines "public confidence in our system of justice," as the Supreme Court put it in 1986. Prospective black jurors are routinely dismissed at higher rates than whites. The law simply requires some rationale other than skin color.
"Question them at length," a prominent Philadelphia prosecutor suggested to his protégés after the Supreme Court banned race as a reason for striking jurors. "Mark something down that you can articulate at a later time." For instance, a lawyer might say, "Well, the woman had a kid about the same age as the defendant, and I thought she'd be sympathetic to him."
In 2005, a former prosecutor in Texas revealed that her superiors had instructed her, if she wanted to strike a black juror, to falsely claim that she'd seen the person sleeping. This was just a dressed-up version of the Dallas prosecution training manual from 1963, which directed assistant district attorneys to "not take Jews, Negroes, Dagos, Mexicans, or a member of any minority race on a jury, no matter how rich or how well educated."
The 1969 edition of the manual, used into the 1980s, promoted a more subtle brand of stereotyping, noting that it was "not advisable to select potential jurors with multiple gold chains around their necks." But it hardly mattered: Overt, covert, or in between—the result was the same.
North Carolina prosecutors were striking black jurors at twice the rate of whites; the odds of that being race-neutral were less than 1 in 10 trillion.
Virtually every state with a death penalty has dealt with accusations that black jurors have been improperly kept off juries. During the 1992 death penalty trial of a defendant named George Williams, for example, a California prosecutor dismissed the first five black women in the jury box. "Sometimes you get a feel for a person," he explained, "that you just know that they can't impose it based upon the nature of the way that they say something." The judge went even further, noting that "black women are very reluctant to impose the death penalty; they find it very difficult." In 2013, the California Supreme Court ruled that these jury strikes were not race-based, and deemed the judge's statement "isolated." Williams remains on death row.
After North Carolina passed its Racial Justice Act, a 2009 law that let inmates challenge death sentences based on racial bias, a state court determined that prosecutors were dismissing black jurors at twice the rate of other jurors. The probability of this being a race-neutral fluke, according to two professors from Michigan State University, was less than 1 in 10 trillion; even the state's expert agreed that the disparity was statistically significant. Based on these numbers, the court vacated the death sentences of three inmates and resentenced each to life without parole. Six months later, the state legislature repealed the Racial Justice Act.
The answer is simple. He lied:
Defense attorney: Do you have any racial prejudice resting
on your mind?
Even this sort of cursory questioning wasn't required by the Supreme Court until 1986, and then only in capital cases—and when the defense requests it. In order to function, the justice system has to presume that jurors will tell the truth under oath, just as it presumes lawyers are competent. 
And what of the lawyers' role? Since 1976, when mandatory death sentences were ruled unconstitutional, the decision of whether to seek execution has rested entirely with the local district attorney. In practice, this means a white man usually gets to decide who should face the death chamber. A 2009 study found that more than 85 percent of chief prosecutors in the United States were white, and the majority were male.
Prosecutor William McBroom wasn't the type to fret over moral ambiguities: He sought death sentences at every opportunity.
In the Fults case, that white man was William McBroom, district attorney of the Griffin Judicial Circuit. McBroom had already put two men on death row by the time he prosecuted Fults, and continued to aggressively seek and obtain death verdicts until 2004, when he lost his reelection by a hair. He wasn't the type to fret over moral ambiguities: McBroom sought death sentences at every opportunity, thereby avoiding allegations of discrimination in the charging process.
His tough approach found an unlikely ally in Johnny Mostiler, the Spalding County public defender, who happened to be representing Kenneth Fults. "We're finding ourselves facing crimes we think are Atlanta big-city crimes," Mostiler proclaimed at one point. "We're a law-abiding town. We want our criminals prosecuted."
McBroom and Mostiler knew each other so well that the Fults transcript sometimes reads like old friends reminiscing: McBroom points out how Mostiler is going to respond, mentions an argument his rival made in an earlier case, and refers to him by first name before handing over the floor for closing arguments. "Mostiler was the toughest trial lawyer in Spalding County," McBroom recalled some years after the Fults trial. "He would take cases where you didn't think defendants had a chance, and you'd be fighting for your life."
He had every reason to praise Mostiler. A death verdict is
invariably followed by appeals in which the defense attorney's work comes under
close scrutiny. Prosecutors routinely hail their adversaries as giants in the
field of capital defense to make it harder for any defendant to claim his
lawyer was incompetent. And McBroom, who had obtained death verdicts against
Mostiler in several prior cases, needed to defend some deplorable behavior: For
all intents and purposes, Johnny Mostiler, like Thomas Buffington, was a
Spalding County, 40 miles south of Atlanta, has but a single public defender to represent criminal defendants who can't afford an attorney—and a great majority cannot. All through the 1990s, Mostiler was that defender, responsible for handling as many as 900 felonies a year . He also maintained a significant civil practice on the side and took on serious felony cases outside of Spalding County. But he was hardly your humble, nose to the grindstone type. According to a 2001 profile in The American Prospect, he stood out in a black cowboy hat; a silver beard with handlebar mustache; six gold, silver, and onyx rings; and three gold bracelets. He also drove a mustard-green 1972 Cadillac El Dorado convertible—with cattle horns as a hood ornament.
Clients and fellow lawyers recalled Fults' defense attorney using the N-word. Of one client, he allegedly said: "That little ni----- deserves the chair."
But Mostiler's true legacy—he died of a heart attack a few years after the Fults trial—involved the case of his former client Curtis Osborne, who was tried in 1991, found guilty of murder, and finally scheduled for execution in 2008. As the clock wound down on Osborne's appeals, a former US attorney general, a former Georgia chief justice, and former President Jimmy Carter (previously the governor of Georgia) all spoke out against the execution. They had heard the allegation by another one of Mostiler's clients, a white man named Gerald Huey, that Mostiler had told him, speaking of Osborne, that "that little nigger deserves the chair."
Some time later, a Georgia lawyer named Arleen Evans stepped forward with a sworn recollection about Mostiler's personal conduct:
I recall one occasion when I was in the lawyer's lounge at the Spalding County Courthouse. There were a number of other lawyers there including Mr. Mostiler. Mr. Mostiler began telling racist jokes filled with racial epithets like "nigger." Some of the lawyers would laugh. Some would laugh nervously. Some would try to ignore it. And others would leave the room to get away from it. On another occasion, I remember walking into the lawyer's lounge and Mr. Mostiler was again telling racist jokes. Ms. Nancy Bradford, who is now deceased, looked at me, noticed that it was making me uncomfortable, and told me "that's just Johnny."
Osborne's lawyers soon dug up yet more evidence: a transcript from the trial of Derrick Middlebrooks, a black defendant who was so troubled by the racist talk that he asked the judge to dismiss Mostiler as his public defender: "He indicated to me that he wouldn't—he couldn't go up there among them niggers because them niggers would kill him," Middlebrooks said. "Now personally I don't know if he meant anything really by it. But I find it, you know, kind of hard to have an attorney to represent me when he uses those type of words. It doesn't help my confidence in my attorney."
"I honestly don't remember," Mostiler responded when the judge asked him about it. "I don't use those terms out in public. And I probably—if I did use it I certainly am sorry. I didn't mean to indicate that it was any—or any racial overtones. I think my—I think my record on race is…"
"Well documented in this court," the judge interjected.
Mostiler was long dead by the time his racist language became an
issue in the Osborne case, but several prosecutors, including McBroom and his
successor, District Attorney Scott Ballard, spoke up in his behalf. Mostiler
had presented a "very adequate defense" of Curtis Osborne, Ballard
argued. He urged that the execution go forward.
Small counties tend to have incestuous legal communities. Public defenders and assistant district attorneys often swap sides and socialize together too; top assistants become bosses, and, most predictably, district attorneys end up on the bench. Such was the case with Johnnie Caldwell, Fults' trial judge.
Caldwell had preceded McBroom as district attorney of the Griffin Judicial Circuit. As both a prosecutor and a judge, Caldwell was well aware of the racism allegations surrounding Mostiler. It was he, in fact, who had heard Middlebrooks' claim and used the opportunity to assure the public defender, saying: "It's unchallenged in this court with your actions concerning the races and certainly of standing up for the rights of all individuals regardless of their race or color or religious preference." Turning to Middlebrooks, he added: "I find nothing in Mr. Mostiler's conduct of this trial or in representing you that would cause me to disqualify him."
"I find nothing in Mr. Mostiler's conduct of this trial or in representing you that would cause me to disqualify him."
By suggesting that the public defender of Spalding County—a man hired year after year by the county commissioners—was a racist, Middlebrooks had also, unwittingly, impugned the dignity of the prosecutor and the presiding judge. Caldwell was clearly put out:
Middlebrooks: My motion for a new attorney is denied?
When race became an issue in the Osborne case, Caldwell didn't step forward to disclose his interactions with Mostiler, nor did any of those other lawyers in the lounge, who had certainly heard the same racist jokes and comments Arleen Evans had. (Caldwell had his own problems: He resigned his judgeship in 2010 in light of allegations that he was soliciting female attorneys in open court. He was nonetheless elected, soon after, to the Georgia Legislature.)
Ultimately, neither local nor federal courts were moved by the consistency of the race testimony. In 2006, the 11th Circuit Court of Appeals soundly rejected Osborne's claim that Mostiler was ineffective due to racial animosity. (Osborne was executed two years later.) Citing McCleskey, the court said it was the racial animus of the decision makers—the prosecutors and the jurors, not the defense attorney—that mattered.
So what would the same court say eight years later, when lawyers for Kenneth Fults came before it with claims of racial animus involving a decision maker, the juror Thomas Buffington?
In September 2013, a three-judge panel of the 11th Circuit Court of Appeals convened in Miami to hear Fults' claim. Half of their questions focused on legal hurdles, such as procedural default, cause and prejudice, impeachment of the verdict, and waiver. The other half dealt with the inexcusable nature of Buffington's admission. The state wanted the court to reject Fults' bias claim on a procedural technicality involving the rules of evidence, and Adalberto Jordan, the most outspoken of the judges, was struggling to understand why.
"When you have a claim of a juror potentially recommending a sentence of death because of flat-out racial bias," Jordan asked, "why would the state of Georgia not want that claim heard on the merits?"
Assistant Attorney General Sabrina Graham insisted that Georgia law was clear on the issue. A verdict could not be reversed based on jury deliberations, no matter what any juror had to say about them afterward. In the process, she spent some awkward moments trying to persuade Jordan and Judge Stanley Marcus that what Buffington said wasn't as damning as it sounded.
Graham: I think there could not be any prejudice.
That's when Jordan, seemingly surprised by Graham's answer, suggested that there was a "safety valve under Georgia law." That is, if an evidentiary rule resulted in a violation of a defendant's constitutional rights, it might justify an exception to that rule.
Graham conceded that such a ruling might be possible. "They have left that possibility open, but they have never actually done anything about it." She then pointed out that there are many reasons to trust a juror's answers during jury selection rather than statements the juror might make after a verdict of death is returned: "Fine, you want to say Mr. Buffington lied during voir dire. [But] you have the trial court, and you have defense counsel all watching these jurors."
She was suggesting, in essence, that Johnny Mostiler, who had been
accused of racism more than once, and Judge Caldwell, who'd belittled the claim
of racism against Mostiler before being removed from the bench for harassing
women in his own court, were suitable watchdogs to ensure an impartial jury.
Was it possible she didn't realize who they were?
The 11th Circuit was not entirely unfamiliar with juror bias. Back in 1986, a man named Daniel Neal Heller had been convicted of tax evasion in Florida. Evidence showed that Heller, a Jewish man, was the butt of anti-Semitic jokes in the jury room that consistently prompted "gales of laughter." The trial judge, when confronted by vague claims of discriminatory comments by the jury, cursorily asked each juror if he or she was "affected by prejudice." The 11th Circuit's three-judge panel reversed Heller's conviction, writing that the jurors' religious prejudice was "shocking to the conscience," and concluding: "The people cannot be expected to respect their judicial system if its judges do not, first, do so."
The judges hearing the Fults case seemed to have forgotten the lessons of Heller. Despite their pointed questioning during oral arguments, the opinion they released 11 months later expressed neither shocked consciences nor fear of diminished respect for the system. If they were offended by Buffington's admission, it was lost amid all of the procedural arcana.
The prevailing narrative about legal technicalities is that they open jailhouse doors. Quite the opposite.
The prevailing narrative about legal technicalities, thanks to Hollywood portrayals and posturing politicians, is that they open jailhouse doors—which is one reason crime sometimes seems to be on the rise when in fact it is plummeting. In reality, though, legal technicalities are far more often used to preclude people from having their postconviction claims heard. The Fults opinion, written by the outspoken Judge Jordan, is a virtual primer on how the law has evolved to block, rather than illuminate, allegations of injustice.
During oral arguments, Jordan seemed to be advocating a hearing to determine the circumstances of Buffington's admission. In his opinion, however, he condemned the defense for failing to provide sufficient detail about how or when Buffington's prejudice was discovered. While he had earlier questioned why Georgia didn't want a claim of "flat-out racial bias" heard on its merits, his opinion articulated every reason the claim had not been properly presented, and now could not be considered.
Finally, "in an abundance of caution," he addressed the
argument he seemed to be championing 11 months earlier: that the failure to
consider Fults' racial-prejudice claim would be a miscarriage of justice. Once
again, Jordan felt compelled to explain that this claim had not been properly
presented. In any case, he concluded that Fults had not shown that his sentence
was a miscarriage of justice. For while it's true that in Georgia a single
juror can stop a death sentence from being imposed—the jury has to be
unanimous—the bar is much higher for a death row inmate seeking to overturn his
sentence. Fults' legal burden was to demonstrate that no reasonable juror would
have voted to give him the death penalty. And this, in the court's view, he had
So how, exactly, does a "reasonable juror" think?
It's difficult to think of any decisions more subjective than who should live or die. Every death penalty state has a statute with language intended to objectify the determination, but when all is said and done, it's highly personal: Will the person be a danger in the future? Do the circumstances of the crime trump the defendant's background? Do the reasons for a life sentence outweigh those for a death sentence?
And how might this hypothetical reasonable juror regard Kenneth Fults? The man pleaded guilty to a horrible crime. He committed two burglaries and stole some handguns, all with the intention of killing a man involved with his former girlfriend. Instead, he ended up shooting a neighbor, Cathy Bounds, five times in the back of the head.
But, as the Supreme Court has pointed out, there are "potentially infinite" reasons a juror might want to sentence someone who has committed a heinous crime to something less than death. Kenneth Fults' history was packed with them.
"We stayed there alone without any adults watching over us so long that the power company had turned off all the utilities."
"I just lost sight of raising my kids," his mother, Juanita Wyatt, told a state court judge, explaining the result of her crack and alcohol addictions. She was court-martialed from the military for writing bad checks to buy drugs, moved her children from house to house and state to state, abused them with switches and belts and electrical cords—using the plug end when the cord itself ceased to have the necessary impact. Whatever boyfriend happened to be with her at the time often joined in. As for Kenneth's father, the man was no more than a name to him.
Kenneth's mother didn't just lose sight of raising her children—she lost sight of them entirely. His younger sister remembered how their mom had abandoned the kids after moving the family to Houston:
We stayed there alone without any adults watching over us so long that the power company had turned off all the utilities. We didn't have heat or lights; I don't remember if we had water. I don't remember how long we were alone…I know it was at least a couple of months. I was really scared. Kenny and Michael tried to make it like it was fun and we were just camping out or something. I know they started stealing for us to have something to eat, because we did not have any money. I also remember that Michael had them dig a hole in the ground in the backyard to bury some of our food to try and keep it cold when our electricity was turned off.
Legally speaking, the most compelling reason not to sentence Fults to death is that he may be intellectually disabled. Three separate IQ tests over a 16-year period, one of them seven years prior to the murder, all fall within the range for mental retardation. By seventh grade, Fults was testing near the bottom in basic skills. In eighth, he was placed in a "special class…for slow learners." In that class, a former teacher recalled, Kenny was the "poorest performing student." There also was abundant testimony that he was incapable of keeping his money straight or filling out job applications. And as a child, he related to far younger children.
Even Judge Jordan, in rejecting Fults' claim of intellectual disability in the 11th Circuit, acknowledged that his lawyers' argument was "not without some force." But again, procedural rules came into play: Since the state court had rejected the claim, its decision was presumed correct, and only "clear and convincing" evidence could overturn it. The IQ tests, the academic struggles, the affidavits of family members and teachers and friends detailing his "slowness," none of that was enough.
As for what a reasonable juror might have done with all of this
information, we'll never know. Johnny Mostiler didn't present any of it to the
Kenneth Fults has one last stop before his appeals run out. The likelihood that the US Supreme Court will review any matter is remote, but there could be a tiny sliver of hope for him in a civil case, Warger v. Shauers, that the court decided last December. On its face, the unanimous ruling seems as though it would be to Fults' detriment: Justice Sonia Sotomayor's majority opinion echoes what lawyer Sabrina Graham had argued on Georgia's behalf in the Fults case: that what a juror says later cannot be used to attack the verdict.
How do we know when we've crossed the line, when our justice system can't tolerate a result that its technical rules encourage?
You have to read the fine print, footnote No. 3 to be exact, to find the passage that could be Fults' saving grace: "There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process."
As much as Georgia wants to make the case about a rule of evidence, it is not really about that at all. It is, instead, about Footnote No. 3, and that most extreme form of juror bias: sentencing a man to death based on racial hostility. And maybe it's also about how far we are willing to go, and how many procedural barriers we are willing to erect, to avoid dealing with the ramifications of such behavior.
How do we know when we've crossed the line, when our system of justice simply can't tolerate a result that its technical rules encourage? Here's Buffington's full statement: "That nigger got just what should have happened. Once he pled guilty, I knew I would vote for the death penalty because that's what that nigger deserved."
Racism doesn't get much clearer than that. Now it'll be up to the Supreme Court to decide whether the rules of evidence might, just this once, take a backseat to the principle that no man should be judged by the color of his skin.
The Georgia Department of Corrections has set yet another execution date. Kenny Fults is scheduled to be executed on April 12.
Kenny is a Black man who has an IQ that places him in the bottom 3% of the population. After Kenny’s trial, it came out that at least one juror and Kenny’s own defense attorneys had used racial slurs against him, including calling him “a little n____.” This racism violated Kenny's constitutional right to a fair trial and an impartial jury. Despite this documented racism and the unconstitutionality of Kenny's jury, Georgia still plans to execute Kenny. Please support efforts to stop Kenny’s execution. Visit www.savekennyfults.com and sign his clemency petition.
Also, as you know there is an execution scheduled next week, March 31, for Joshua Bishop. If you’ve yet to take action, please do so. You can find more information here: http://www.gfadp.org/latestnews/takeactionforjoshuabishop.