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Thou shalt not die 

Georgia's dismal death-penalty record helps double murderer avoid execution

Dale Hayes, who stabbed to death his father and stepmother and escaped from jail four times, has evaded the state's harshest punishment.

It was not Hayes' cunning, however, that provided him a detour from the death penalty. His life was spared because Georgia has proven itself -- at least, by one judge's estimation -- wishy-washy when it comes to executions.

"The state of Georgia is not committed to carrying out the sentences handed out by judges and juries across the state," Rabun County Superior Court Judge Ernest H. Woods III said May 11, moments after he sentenced Hayes to life without parole.

Defense attorneys arguing against the death penalty generally prefer jury trials, because if one of 12 jurors holds out, the death sentence cannot be given. But Hayes' lawyer Mike Mears waived his client's right to a jury trial and opted for the judge to decide Hayes' guilt and his punishment.

Rabun County District Attorney Michael Crawford said he had never even discussed the death penalty with Woods, nor had Mears. Neither man knew what to expect.

But Mears, a well-known death-penalty opponent, gambled well. And his tactic drew a bonus: yet more criticism of Georgia's record on executions -- this time from a rural judge's bench.

The Rabun County courthouse is far from the epicenter of the debate on capitol punishment. But Georgia as a whole has become something of a death-penalty debating ground in recent weeks.

On May 1, the state Supreme Court voted 6-1 to hear a case that could outlaw death by electrocution. Fulton County Superior Court Judge Wendy Shoob had ruled at the trial level that the electric chair, at least in the case of Timothy Dawson, was unconstitutional. Dawson awaits trial for the murders of three men in the Atlanta Hilton. Shoob's order was the first in Georgia to declare that the chair is cruel and unusual punishment, but her decision applies only to Dawson.

If the Supreme Court upholds Shoob's order -- most likely, sometime this summer -- it would be the first state high court to find execution of any form unconstitutional. It also effectively would ban the use of the chair for the 135 Georgia inmates under death sentence. (The General Assembly switched the form of execution from electrocution to lethal injection, but the switch applies only to crimes committed after May 1, 2000.)

Outlawing the chair would arrive too late for the 23 men who have died at the hands of the state since 1983. But this month records of those executions, some of which required two cycles of volts to complete the death, boosted the argument against death by electrocution.

On May 2, National Public Radio and ABC's "Nightline" aired audio tapes of some of the electrocutions, which Mears had been peddling to journalists as evidence that Georgia's prison system administers them inhumanely. The shows were aired in anticipation of the scheduled May 16 lethal injection of Oklahoma City bomber Timothy McVeigh, before McVeigh's execution was postponed due to the FBI's mishandling of evidence.

Georgia is the only state known to have recorded executions, and local media aired the tapes in the past. Mears has entered the tapes as evidence in at least 10 death-penalty cases since 1997.

"I think that the overall strategy that has come together on this is working well," says Mears, who vows to challenge the constitutionality of lethal injection should the electric chair be banned. "I hope all of this is working toward some grand end, if not of the death penalty, at least of the electric chair."

Mike Bowers, who was state attorney general when the tapes were recorded, attributes the cooling of the death penalty fervor to changes on the state Supreme Court rather than to Mears' maneuvering.

"I can't speak for other places," Bowers says, "but in the Georgia judicial system since 1990, particularly on the Georgia Supreme Court, I think there's much less support for the death penalty than there once was."

But the issue that surfaced in Rabun County is not lost on Bowers. He says support has wavered partly because liberal justices have replaced conservative ones and partly because of "the measure of speed" by which executions are carried out.

The 23 men executed in Georgia since the death penalty was reinstated waited an average 11 years on death row. Thirteen men have been sitting on death row more than 20 years. And about half of the approximate 320 death sentences handed down since 1983 were eventually overturned in an appeals process that lasts five years, at the very shortest.

"I mean, the time from crime to execution is just unbelievable," Bowers says.

Mears had no way of knowing that the very criticism raised by Bowers, a fierce death-penalty advocate, would become his ally in the Rabun County case.

He was worried, however, that potential jurors would be unsympathetic to a man accused of the notorious stabbings of his father and his father's third wife. It didn't help that Hayes married his father's second wife. And Mears doubted that jurors would be familiar with any of the shortcomings surrounding Georgia's death penalty.

But the judge, Mears thought, might.

Woods began hearing evidence on May 9. The following afternoon he convicted Hayes of two counts of murder, which Mears was not contesting. The next day, the sentencing phase of the abbreviated trial began. About 50 onlookers, mostly friends and family of the victims and defendant, sat through the testimony of a dozen witnesses.

Fay Gibson, Hayes' mother, described how Hayes' father wouldn't allow her to take the boy to the hospital when he cut his finger to the bone at age 9, while carving a slingshot. She recalls Hayes' father saying, "That will learn that little S.O.B not to play with knives."

Nearly 25 years later, in December of 1997, Hayes broke into his father's trailer in the middle of the night and stabbed him 18 times. He slashed the necks, front and back, of his father and his father's third wife, nearly decapitating them, according to testimony.

"I submit to you, your honor, that if you believe in the death penalty, this is one of the most deserving cases there will ever be," District Attorney Crawford said in his closing statements.

The judge spent about an hour in his chambers and returned with Hayes' sentence, as well as an answer to the district attorney's plea.

"I do support the death penalty as a deterrent to crimes as heinous ... as ones like this," the judge said.

But he would not put another man on death row. The judge then said, "These sentences must be swift and they must be certain."

Woods apologized to the courtroom audience. He said he was sorry he could do nothing to reconcile their losses. The death penalty, he said, is no consolation. Nor is it a sufficient threat.

"These sentences do not provide their most serious purpose," Judge Woods said, "to be a deterrent to future crimes."

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