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SOUTHERN CENTER FOR HUMAN RIGHTS
83 POPLAR STREET, N.W.,
ATLANTA, GEORGIA 30303 USA
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««« FOR IMMEDIATE RELEASE-- JUNE 11, 2002, 2:30 p.m. «««
GEORGIA SUPREME COURT ASKED TO HALT
EXECUTION FOR MAN CONDEMNED TO DIE
AFTER 27-MINUTE SENTENCING HEARING
ATLANTA, GEORGIA – Today, attorneys for Wallace Fugate filed an Application
for
Certificate of Probable Cause to Appeal in the Georgia Supreme Court,
stating that
the "Court has the constitutional, legal and moral obligation to prevent
an execution
that would be wholly out of line with previous executions carried out
in this state since
1976 and other cases in which death has been imposed since that time."
Fugate was convicted of a murder of his ex-wife, Pattie, in an extraordinarily
brief trial
that lasted only two days. Fugate, then 42, had no criminal record.
He had worked as
a carpenter and craftsman in Putnam County, building and repairing
homes. The
sentencing hearing – where the jury could have heard anything about
Fugate’s life as a
productive citizen – lasted only 27 minutes, less time than the average
real estate
closing.
"The death sentence was imposed in this case not because of what happened
or the
background of Mr. Fugate, but because of pathetic representation by
two
court-appointed lawyers who should have never been assigned a capital
case," said
Stephen Bright, Director of the Atlanta-based Southern Center for Human
Rights and
one of Fugate’s attorneys. "The jury did not know what happened and
it knew nothing
about Mr. Fugate."
Since turning himself in the night of the tragedy, Fugate has steadfastly
maintained
that his gun discharged accidentally. However, his court-appointed
lawyers did not
present evidence that because of a design defect, the gun was
susceptible to
accidental firing. Nor did they inform the jury that the state’s only
eyewitness, his son,
who told the jury that he saw the shooting, had told law enforcement
officers
immediately after it that he had not seen it. In fact, the court-appointed
lawyers did
almost nothing. They refused, even when prompted by the judge, to ask
for funds for
an investigator or expert witnesses. They did not make a single objection
during the
entire trial.
Attorneys for Fugate argue that the death penalty is a grossly excessive
punishment
for a person with no prior criminal history whose behavior was in the
heat of passion
and perhaps accidental. The cases of the 29 people who have been executed
by
Georgia since 1973 have all been far more aggravated. Nor is there
anyone under
death sentence in Georgia at this time with no prior record and a similar
crime. A
person with no criminal record for 42 years who suddenly commits a
murder of a
ex-spouse is usually punished in Georgia by life imprisonment, not
death.
Mr. Fugate's execution is scheduled for Tuesday, June 18, 2002 at 7
p.m. He has
been on Georgia's death row for over 10 years.
MEDIA OPPORTUNITY
CLEMENCY HEARING- Mr. Fugate's Clemency Hearing is scheduled for
Friday, June 14, at 10:00 a.m. at the Pardons and Parole Board office in
the "Sloppy Floyd Building at 2 Martin Luther King Avenue in Atlanta.
Although the press cannot be present during the hearing, attorneys and
participants will be available for interview immediately following the
hearing.
The following contains background information on Wallace Fugate,
a death row
inmate in Georgia who is scheduled to be executed on June 18, 2002.
1. Background and Introduction
Wallace Fugate, at age 42, was convicted at a trial that lasted just
two days of the
murder of his ex-wife in the course of an altercation. It was his first
conviction ever.
From the day he turned himself in to police through his testimony at
trial, Mr. Fugate
steadfastly maintained that the gun discharged accidentally. He was
condemned to
death after a penalty phase that lasted less than half an hour.
Fugate’s case demonstrates how arbitrarily the death penalty is imposed
in Georgia.
The death penalty is not imposed in many similar cases and even in
many cases far
more aggravated, such as those involving multiple victims.
It is also an example of the poor legal representation received by people
who cannot
afford to hire their own lawyers. The two lawyers appointed to represent
Mr. Fugate
filed just three pre-trial boilerplate motions; only one cited a case.
When asked by the
judge, the attorneys refused to seek funds for an investigator, any
experts or any other
purpose. They engaged in no plea negotiations. They did not object
even once during
the brief trial. They were ignorant of the law. One lawyer testified
that he could not
name any criminal law decision from any court with which he was familiar.
The case arose out of an altercation between Mr. and Mrs. Fugate on
May 4, 1991, a
few months after they had divorced. On that morning, Mr. Fugate’s car
broke down
near the house the family had shared during the marriage. Mr. Fugate
knew that his
son’s car had mechanical problems and he decided to go to the house
to fix it. He
testified that he did not expect his ex-wife, Pattie, or son, Mark,
to return that day – a
Saturday – because Pattie had told him they would be in South Carolina
for the
weekend, and had given him their hotel number. Telephone records confirmed
that he
called the number several times during the day.
However, to Wallace’s surprise, Pattie and Mark came home shortly before
5:30 p.m.
Upon their arrival, an argument between Mr. and Mrs. Fugate quickly
escalated into an
altercation. During the struggle, a gun which Mr. Fugate had taken
from his disabled
car discharged twice. The first shot went into a floor in the house;
the second resulted
in the fatal wound. Mr. Fugate turned himself into the police shortly
after the shooting,
and gave a statement explaining that the gun discharged accidentally
as he was trying
to get Mrs. Fugate into her van so that they could go to the sheriff’s
office.
2. Facts the jury never heard
The issue at the guilt phase was whether the shooting was accidental
or intentional.
Wallace Fugate testified at trial, as he had maintained since turning
himself in, that the
gun discharged accidentally. The prosecution called a weapons expert
who testified
that the gun had to be cocked or a great deal of pressure had to be
exerted on the
trigger in order to fire it. The jury was not informed that the gun
had a design
defect that made it prone to inadvertent cocking and accidental firing
because
the court-appointed lawyers did not consult with an expert on firearms,
and were
unaware of the susceptibility of the gun to accidental discharge.
The only eyewitness to the shooting, Mark Fugate – Wallace and Pattie’s
only son –
told the police immediately after the shooting in a statement reduced
to writing that he
did not see the manner in which his mother was shot. At trial, however,
Mark Fugate
testified that he saw his father hold his mother by the hair, pull
her head back, and
shoot her. The lawyers appointed to defend Mr. Fugate failed to impeach
Mark
with his prior written statement in which he said he did not see the
shooting.
The lawyers also failed to contest other critical aspects of the prosecution’s
case. The
state’s medical examiner recorded in the autopsy report "a distant
gunshot wound" –
consistent with Mr. Fugate’s statement and contrary to the verison
of events given by
Mark at trial. However, at trial, the medical examiner testified at
trial that the barrel of
the gun could have been close to Mrs. Fugate’s head when it was fired.
The defense
lawyers failed to bring out that the medical examiner had twice written
in the autopsy
report that the gunshot was "distant."
Expert assistance was not sought simply because the court-appointed
lawyers never
considered seeking it. Indeed, one of the lawyers testified that in
his over forty
years of practice, he had never used an investigator, and could not
specifically recall ever having an expert witness. In the absence of
any
adversarial testing of the prosecution’s case, the jury found Mr. Fugate
guilty.
The court-appointed lawyers did no better at the penalty phase. Despite
the tragic loss
of life, nothing about the death of Mrs. Fugate in an emotional argument
with her
former husband, who had no criminal record in his 42 years, distinguishes
this case
as one that was appropriate for the death penalty based on the circumstances
of the
offense or the offender. Wallace Fugate had a long history of community
service,
military service, and gainful employment. His neighbors considered
him an
exceptionally decent man because of the help he had provided on numerous
occasions. He was married to Pattie Fugate for almost his entire adult
life and was
devastated when their marriage ended.
However, the jury did not receive this evidence about the life and background
of Mr.
Fugate because his court-appointed lawyers waited until the month of
trial to even
begin to look for mitigating evidence. Although Mr. Fugate provided
the lawyers with a
list of 35 potential mitigation witnesses, the lawyers did not contact
many of the people
on it. One lawyer said that they divided the list between them, but
the other lawyer said
he did nothing to prepare for the penalty phase. Only one individual
of the 35
listed was called as a witness, but he, like two other witnesses, was
asked only to give
his opinion on Mr. Fugate’s character and propensity for violence and
the sentence he
should receive. One witness testified only that Mr. Fugate had a "rather
well
character," and another testified only that Mr. Fugate was "mighty
quiet" and "a mighty
hard worker." The lawyers called Mr. Fugate’s mother, eliciting her
conclusions that
Mr. Fugate had been a good, non-violent child, had always been employed,
and was a
good father. The lawyers presented no information in any depth to the
jury. After this
sad example of how not to try the penalty phase of a capital case,
the jury sentenced
Mr. Fugate to death.
3. The sentence is excessive
The death penalty is supposedly reserved for the worst crimes committed
by the most
incorrigible criminals – people who repeatedly commit crimes, including
murder; those
who kill more than one person; those who kill and rape or torture their
victims; and
people who kill police officers or children. Georgia has put to death
29 people under
its current death penalty law which was upheld by the Supreme Court
in 1976. Seven
of those executed committed more than one murder, and five others had
killed other
people in separate incidents. Twelve had committed murder as part of
a robbery of a
stranger for money; one robbed a person he knew for money; one committed
murder
to collect insurance. Six raped or sexually assaulted their victims
before killing them.
Five killed a child. At least three engaged in prolonged torture before
killing their
victims. Two killed police officers.
Wallace Fugate’s case is not such a case. Had the jury been fully informed,
it would
have found that the death in this case was an accident, not intentional.
But even
assuming that the death was not an accident, this case is not one for
which Georgia
juries usually impose the death penalty. A person with no criminal
record for 42 years
who suddenly commits a murder of a ex-spouse is punished in Georgia
by life
imprisonment, not death.
The death sentence imposed in this case is an aberration. It can be
explained not by
the facts of the crime or the criminal history of the offender, but
by the poor legal
representation that Wallace Fugate received.
This case involves a tragic loss of life. But it did not involve multiple
murders; it was not
to obtain money; there was no torture or murder of a child. This case
involves a man
who had been married to the victim for 20 years, who was 42 years old
at the time,
who had no prior criminal convictions, and who has maintained all along
– with
corroboration from an expert at state habeas proceedings that the gun
had a
manufacturing defect – that the shooting was accidental. The ultimate
punishment,
death, is reserved for the worst offenders who commit the most heinous
crimes.
Wallace Fugate is not such an offender and his crime is not one those
so heinous that
it is usually punished by death.
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