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Lawyers hope to derail death penalty cases

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POSTED: October 24, 2007 5:01 a.m.

ATLANTA -- Death penalty lawyers have in the past unsuccessfully argued in Georgia courts that the state's lethal injection procedures are inhumane, but they hope to have better luck now as they try to stop two executions set for later this month.

Standing in their way are prosecutors seeking justice for the victims, backed by aggressive enforcement of Georgia's death penalty from Attorney General Thurbert Baker's office.

"Unless the courts change the constitutionality of lethal injection, then our position won't change," said Kelley Jackson, a spokeswoman for Baker. "Our responsibility is simply to uphold the law."

Besides state or federal courts, the only other entity in Georgia that can stop an execution is the state Board of Pardons and Paroles, and the panel evaluates cases individually.

Time is running out for condemned inmates Jack Alderman and Curtis Osborne.

Alderman, 56, convicted of killing his wife in 1974, is scheduled to be executed Oct. 19. Osborne, 37, who killed two people in 1990, is scheduled to follow him to the death chamber at the state prison in Jackson on Oct. 23. The executions would be Georgia's second and third this year.

The last man to be put to death in Georgia, John Hightower, made a last-ditch effort for a stay by arguing that the state's lethal injection procedures amount to cruel and unusual punishment. A Superior Court judge denied Hightower's request, and he was executed in June for killing his wife and two stepdaughters in 1987.

But Hightower's lawyer, Jack Martin, said the landscape has changed after the U.S. Supreme Court recently agreed to hear a Kentucky case that involves the same issue.

"It's unfathomable to me that Georgia would go forward with an execution before the U.S. Supreme Court decides whether the procedure is constitutional," Martin said.

Many states that have lethal injection as a means of capital punishment use a similar three-drug cocktail to kill the inmate. There are differences in some states, however, in the dosage and types of drugs used.

Unlike some other states, Georgia also offers the condemned inmate anti-anxiety medication an hour before an execution that can make the person drowsy. A Department of Corrections spokeswoman, Tracy Smith, said it is up to the inmate whether he wants the Ativan pill.

George Kendall, a New York attorney who has worked on death penalty cases for 28 years in various states, said he doesn't believe the pill or the dosages of lethal chemicals given to condemned Georgia inmates make a difference.

"I think the Georgia Supreme Court surely if asked has the power and, one would say, the duty in the wake of the U.S. Supreme Court taking the Kentucky case to halt the executions in Georgia," Kendall said.

Kentucky's state Supreme Court upheld the state's procedures, but the U.S. Supreme Court agreed recently to hear an appeal. The arguments could take place possibly in late 2007 or early 2008.

Texas and Alabama are among other states that have seen recent challenges to their lethal injection procedures.

Several states have halted executions altogether or delayed some because of questions over the constitutionality of lethal injection procedures, but Georgia isn't one of them.

Michael Siem, one of Alderman's attorneys, is hoping to change that. He said an upcoming appeal of Alderman's scheduled execution will be based on the constitutionality argument.

An attorney who has represented Osborne in the past did not return calls seeking comment. Legal observers expect his attorney also will argue the lethal injection procedures issue in last-ditch appeals.

If the court appeals don't work, Alderman and Osborne also will have a shot to argue their case for clemency before the state parole board.

Siem said Georgia has not offered "one scintilla of evidence disputing our case" that the state's method of execution is unconstitutional.

"The state of Georgia, just like every other state, is going to have some issues," Siem said. "They know it's coming."

 

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