GEORGIA SUPREME COURT ASKED TO HALT EXECUTION FOR MAN

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FOR IMMEDIATE RELEASE
Tuesday, June 11, 2002 Media contact: Sara Totonchi
(404) 688-1202 or (404) 314-2230 cell

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 Fugateís 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 Fugateís 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 stateís 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.

BACKGROUND AND INTRODUCTION

The following contains background information on Wallace Fugate, a death row inmate in Georgia who is scheduled to be executed on June 18, 2002.

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.

Fugateís 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. Fugateís car broke down near the house the family had shared during the marriage. Mr. Fugate knew that his sonís 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 Wallaceís 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 sheriffís 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 Pattieís 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 prosecutionís case. The stateís medical examiner recorded in the autopsy report "a distant gunshot wound" ? consistent with Mr. Fugateís 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. Fugateís 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 prosecutionís 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. Fugateís 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. Fugateís 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.

C. 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 Fugateís 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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