Closer court watch on death penalty

Barring a last-minute delay, a cell door on death row in the Georgia state prison will swing open June 5 and a condemned man will take the short walk to the execution room.

Jack Potts is scheduled to be electrocuted just as the US Supreme Court, for the first time in four years, is signaling its concern about the way death penalty is being applied in the United States.

"i don't see any sense in prolonging it any longer. I want to get it over with." With these words, condemned murderer Potts, at a prison press conference, made clear his intention to waive his right to federal appeal, which attorneys here feel could save him from execution.

But most condemned prisoners do not feel the same way. Currently, there are more than 635 inmates in death row cells around the country -- more than half of them in Texas, Florida, and Georgia. And with these cells filling up at the rate of about 20 a month, or 240 a year, attorneys experienced in appealing capital punishment sentences are being spread thin.Often, the appeals involve last-minute efforts to obtain the free services of an already overworked attorney to block a scheduled execution.

Prosecution attorneys often fight just as hard to have the death penalty imposed.

But a May 19 decision by the US Supreme Court overturning the death sentence of Georgian Robert Godfrey, a convicted murderer, has given fresh hope to opponents of the death penalty. They see the decision as the first clear signal in four years that the high court plans close scrutiny of the way states apply the death penalty.

The decision puts state supreme courts on notice that they must be sure the death penalty is applied only in the narrow sense outlined in a 1976 Supreme Court ruling, says Jack Boger, an attorney with the NAACP Legal Defense and Educational Fund Inc.

And the Godfrey case illustrates the point.

Under the current Georgia law, a jury must find one of 11 "aggravating circumstances" present before the death penalty can be imposed. The one used in the Godfrey case was that the murder be "outrageously or wantonly vile, horrible , or inhumane, in that it involves torture, depravity of mind, or an aggrevated battery to the victim."

In overturning Godfrey's sentence, the US Supreme Court ruled that the Georgia Supreme Court took into account only the first part of the cited circumstance in affirming the death penalty. The high court said there was no "evidence of serious physical abuse of the victim before death," as outlined in the second part of the criterion.

Opponents of the death penalty have asserted that state supreme courts were not applying the death penalty in such a narrow way. "Godfrey will give us further ammunition in that claim," Mr. Boger says.

The Godfrey decision "is going to have a big effect on a lot of states," says Dennis Balske, attorney for the Southern Poverty Law Center, another group of opposed to the death penalty.

Mr. Balske points out that a number of Alabama death sentences are similar to the Godfrey case in Georgia.

A week after the Godfrey decision, the US Supreme Court overturned six other Georgia death sentences on similar grounds. On June 2, the high court upheld two Georgian death sentences but on grounds not likely to have much impact on other cases, says Patsy Morris of the Atlanta chapter of the American Civil Liberties Union (ACLU).

Henry Schwarzchild, executive director of the Capital Punishment Project of the ACLU sees more limited application of the Godfrey ruling to other states. He says this is because the language in other state capital punishment laws differs from that of Georgia's.

But he says the long-run implication is that the court is watching closely to be sure states apply death sentences only under clearly defined circumstances.

In 1972, the US Supreme Court struck down the death penalty as then applied in 39 states, saying it was being applied unevenly. In 1976, the high court ruled the death penalty could be applied under precisely defined circumstance.

The Potts conviction does not fall under the Godfrey ruling.

Nevertheless, the southern regional office of the ACLU has filed a last-minute appeal of a sentence on behalf of the Rev. Murphy Davis, who has counseled Mr. Potts. But legal experts say such appeals, without the approval of the condemned invididual, are seldom successful.

The ACLU contends that the condemned is unable to make a rational decision on waiving his appeal rights because he is in constant pain. Potts was wounded during his arrest for the 1975 kidnapping and murder of an auto mechanic.He claims he has been unable to get satisfactory medical treatment since his imprisonment.

Since 1967 only three people have been executed: Gary Gilmore (1977) and Jesse Bishop (1979) both waived final appeals; John Spenkelink (1979) lost his final appeal.