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State Supreme Court Says Whitehead's Accused Killers Eligible for Death Penalty | News

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State Supreme Court Says Whitehead's Accused Killers Eligible for Death Penalty

The accused killers of Bibb County deputy Joseph Whitehead are eligible for the death penalty, even though they didn't know he was a law officer.


That's what the state supreme court says in a decision released today. It's the second time the state's high court has ruled on the same issue.


Damon Jolly and Antron Fair are accused of killing Whitehead during a March 2006 no-knock drug raid.


In Georgia, a person who kills a law officer is eligible for the death penalty.


But both men's lawyers argued that they didn't know he was an officer.



Today, by a 5-2 vote, the court said that didn't matter.

In her dissent, Chief Justice Carol Hunstein called the ruling an "absurdity."

She notes that, under Georgia law, people are immune from prosecution if they shoot unlawful intruders into their homes.

Yet the shooter may not know, until after they pull the trigger, whether the intruder is a criminal home invader or a law officer on a raid, like Whitehead.

She called that a "bizarre state of affairs" and wrote, "I cannot in good conscience be complicit in this perversity..."


No trial has been scheduled for the two men.

Here is the state court's summary of the case and their ruling.


FAIR V. THE STATE (S10A1034) and JOLLY V. THE STATE (S10A1035)
For the second time, the Georgia Supreme Court has ruled 5-to-2 that if Antron Dawayne Fair and Damon Antwon Jolly are found guilty of murdering a Bibb County law enforcement officer, they will be eligible for the death penalty regardless of whether they knew at the time the victim was a peace officer.

Fair and Jolly are co-defendants who will be tried separately for the same alleged crime. The State is seeking the death penalty against them for the 2006 murder of Sheriff's Deputy Joseph Whitehead during an attempt to serve a warrant on a house in Macon that was the suspected site of illegal drug trafficking. This is the second time the case has been appealed to the Georgia Supreme Court prior to the co-defendants' trials.

According to the State, in the early morning hours of March 23, 2006, nine drug investigators with the Middle Georgia Task Force and the Bibb County Drug Unit burst into the house on Atherton Street. Whitehead, who was leading the investigation, had obtained a warrant with a "no-knock" provision based on information from a "concerned citizen" and two unnamed informants who had witnessed the selling of illegal drugs at the house, as well as the presence of guns. Within seconds of entering, Whitehead, who was first into the house, was killed.

Officers found Fair and Jolly in a back bedroom, along with an Uzi-type machine gun and a chrome handgun. While processing the crime scene, investigators found pieces of crack cocaine, as well as 21 packages of marijuana on the countertop. They also found two pit bull dogs inside and surveillance cameras outside.

Fair and Jolly were formally charged with murder, and the State announced it would seek the death penalty. Following pretrial hearings, the Supreme Court granted the first interim review to determine:

• Whether the trial court was wrong to refuse to require the State to prove that the defendants knew they were shooting at a law enforcement officer.

• Whether the trial court erred in not deciding before trial whether the defendants were immune from prosecution based on laws allowing the use of deadly force to defend oneself or one's property.

In July 2008, the state Supreme Court ruled in a 5-to-2 decision that under state law, a person found guilty of murdering a law enforcement officer is eligible for the death penalty regardless of whether he knew the victim was an officer. It was the first time the high court addressed the issue. Official Code of Georgia § 17-10-30 lays out 11 "aggravating circumstances," one of which must be proved to impose the death penalty. Among the 11 is one which states that the death penalty may be imposed if the "offense of murder was committed against any peace officer...while engaged in the performance of his official duties." In the 2008 ruling, the Supreme Court also found that the trial court should have ruled on the issue of immunity prior to trial, so it sent the case back with instructions to do so. The trial court subsequently ruled that Fair and Jolly were not immune from prosecution under the law because, regardless of what they may have believed at the time, the entry by the officers was lawful.

In their second appeal to this Court, Fair and Jolly's attorneys argue that in its July 2008 ruling, the high court ruled on the issue of the knowledge requirement on statutory grounds, but not on constitutional grounds. In this appeal, they contend that the statute that lists the aggravating circumstances violates their constitutional rights to "equal protection" because a person who kills an undercover officer without knowing he's an officer should not be treated the same as one who kills an officer knowing he's an officer.

In today's opinion, written by Justice Harold Melton, the majority disagrees. "The legislative intent behind omitting a knowledge requirement from [the statute] was to protect peace officers by providing as a sentencing option the severest form of punishment for anyone who murders a peace officer or other designated official while in the performance of his official duties," the majority opinion states. The U.S. Supreme Court has recognized that "the life of a police officer is a dangerous one." "Undercover officers operate at an even-further-heightened risk to their safety," today's opinion says. The majority concludes "the trial court did not err in holding that the...statutory aggravating circumstance does not violate equal protection."

In the 37-page opinion, the majority addresses a number of other issues raised on appeal. Among them, it concludes that the trial court correctly found that a defendant may claim immunity, "if and only if, he is responding to an 'unlawful' force." Whitehead's use of force when he entered the house "was necessarily lawful," and therefore Fair and Jolly are not immune from prosecution.

However, the majority has reversed the portion of the trial court's order stating that if the jury returned a death sentence, members would be asked a question related to the defendant's knowledge of the victim's status as a peace officer. And because Fair was absent from a hearing in which the trial court heard evidence regarding an alleged conflict of interest in allowing the Georgia Capital Defender's Office to represent both defendants, the high court has vacated the trial court's order on that issue. It is sending the case back to the trial court to conduct a new hearing on the matter or obtain a waiver from Fair.

In a 3-page dissent, Chief Justice Carol Hunstein reiterates her disagreement that the aggravating circumstances statute does not require a person to know he's killing a police officer. "Contrary to the majority's conclusion, I can discern no 'rational basis' for imposing the death penalty on defendants who at the moment they fired the fatal shots neither knew nor should have known that their victim was a police officer," the dissent says. "The absurdity of the result reached under the majority's analysis...is amplified in light of our construction of the immunity statute...as applicable only when deadly force is employed against one whose entry is unlawful in fact. According to the majority, both the defendant's eligibility for the death penalty and his entitlement to claim immunity depend on circumstances entirely beyond his knowledge at the time he committed the crime."

"The act of shooting may be identical, the intent to defend habitation identical; yet depending on circumstances beyond his knowledge or ability to know at the moment the trigger is pulled, the shooter may be subjected to death in one instance, entitled to immunity in the other," the Chief Justice writes, calling it a "bizarre state of affairs" and stating, "I cannot in good conscience be complicit in this perversity..." Justice Robert Benham joins in the dissent.

Attorneys for Appellant (Fair): Brian Steel, Elizabeth Rogan
Attorney for Appellant (Jolly): Jeffrey Grube, James Stokes
Attorneys for Appellee (State): Howard Sims, District Attorney, Kimberly Schwartz, Asst. D.A., Garrison Wood, Asst. D.A., Laura Murphree, Special Asst. D.A.




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