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Wednesday, August 27, 2014 - 3:12pm

How Does Death Row Clemency Work In Georgia? We Might Never Really Know

Updated: 3 months ago.

Botched executions across the country have people talking about the death penalty again. While that trend hasn’t touched Georgia, another rare occurrence occurred on the state’s Death Row. Tommy Lee Waldrip’s clemency in July was only the ninth in Georgia since the resumption of executions in the 1970s.

So, how does an inmate escape execution in Georgia?

Death penalty convictions increased so much under the new Baldwin District Attorney Fred Bright in the 1990s, that the Atlanta Journal Constitution wrote about it. Baldwin had tried a lot of those death penalty cases.

“I’ve got one coming up,” said Bright. “Robert Wayne Holsey. It’s supposed to be carried out this fall.”

Robert Wayne Holsey killed Baldwin Deputy Will Robinson in 1995 while Robinson responded to what began as an armed robbery call. At some point in what followed, Holsey shot Robinson. Bright recalls the case.

“Walked right over to him and shot him in the head when Robinson had fallen on the ground.”

Since his conviction, Holsey pursued the usual legal avenues to reduce his sentence. None succeeded.

But after all the appeals are over, his last best hope for a life sentence will be outside the judicial system -- to seek clemency from the Georgia Board of Pardons and Parole. Bright is no stranger to this process. He has successfully argued against death row clemency three times before the five-member board.

“They’re all appointed by the governor,” said Bright. “Clemency is determined by a majority vote of the board, which would be three members.

Georgia is one of only five states where clemency is decided by an appointed board, rather than a governor. Making your case to the board is nothing like what happens in court.
“There’s no rules of evidence, there’s no objections,’ Bright explained. “They pretty much {say} ’Mr. District Attorney, put up whatever you want.’ "

Lawyers can present anything and everything in the hearing - mothers, fathers, psychologists. But neither prosecutors nor the lawyers for the death row inmate are allowed to hear each others’ arguments. There are no rebuttals.

Attorneys aren’t there for the final vote. And there’s never a written decision.

All you find out in the end, says Bright, is the ultimate outcome.

Some people have a problem with the informality and the lack of transparency.

Richard Dieter, head of the Death Penalty Information Center. He says the clemency process is what it is for one reason -- to keep the courts from infringing on the executive’s power. Remember, the governor, head of the state’s executive branch, appoints the board.

“This has been challenged right up to the Supreme Court, that the death penalty in its clemency lacks a due process,” said Dieter.

Donald Wilkes taught DA Fred Bright at the University of Georgia law school and studied boards of pardons and parole. He says boards aren’t even required to publish its decision.

“ Occasionally they will but as a general rule they will not, and the courts will not question that."

Wilkes says that courts will review clemency hearings, but only with clear evidence of some prejudice. He says boards don’t publish clemency proceedings for fear of attracting the attention of the courts.

Attempts to speak with representatives of the Board of Pardons and Parole on the process were unsuccessful.

Wilkes sees another problem. Three of the five members of the Board of Pardons and Parole have long work histories in either corrections or law enforcement. One board member was even a sheriff’s deputy in Baldwin County where Robert Wayne Holsey killed Deputy Will Robinson.

“The agents of the law enforcement establishment now decide whether or not you’ll be arrested, whether or not you’ll be prosecuted, whether or not you’ll be punished and now whether or not you’ll be granted clemency,” said Wilkes.

Wilkes says he doesn’t doubt the basic decency of the board members.

“Nonetheless, they do come to the table with a history of being involved in law enforcement and that undoubtedly affects how they decide issues of clemency.”

For District Attorney Bright, questions about the fairness of the clemency process miss the larger point-- you don’t just land on death row with the snap of a prosecutor’s fingers.

“Jurors who have heard both sides and the whole evidence in a fair jury trial have said the only justice is the death penalty. And it takes a lot to get them there,” said Bright.

Before Robert Wayne Holsey’s execution date, he will likely have his day before the Board of Pardons and Parole. Bright will be there arguing against his clemency. He’ll prepare that argument in his third floor office, around the corner from the memorial for slain Baldwin County Deputy Will Robinson.

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