Brian Kammer on Capital Punishment in Georgia

Brian shares his expertise on capital defense, habeas corpus and the death penalty in Georgia.

  • The importance of responding to the injustices within the criminal justice and capital punishment systems.
  • Constitutional violations that led to the wrongful conviction
  • Reduction of death sentences handed out
  • Federal habeas corpus appeals and overturning cases
  • History of Habeas corpus and due process
  • Lack of resources for poor Georgians
  • Current death row statistics and impact of the Georgia Resource Center
  • The capital punishment system is embedded within a racist culture
  • Influence of national “tough on crime” culture
  • Mercer University’s ABS Project
  • Resources to get involved:

Episode Transcript:

Susan Cooper 0:00
Welcome to Inclusion Catalyst with your hosts Mickey Desai and Susan Cooper. We invite diversity leaders to the table to deconstruct complex social justice issues and showcase the best inclusion practices in our workplaces and our communities.

Mickey Desai 0:17
Hello again, my friends this is Mickey Desai. I’m your host for this episode of the inclusion Catalyst. I have my co host with me here on the line. Susan, are you there?

Susan Cooper 0:26
Hey everybody, this is Susan Cooper.

Mickey Desai 0:28
And our guest for today is Brian Kammer. Brian has served as Executive Director of the Georgia Research Center since 2009, providing representation to death sentence prisoners in Georgia in state and federal habeas corpus proceedings. Although Brian you’ve recently joined Mercer University School of Law to do something different, isn’t that right?

Brian Kammer 0:47
Yes, I am directing the Mercer University School of Law ABS projects, which is a non capital habeas corpus clinic for third year law students.

Mickey Desai 1:00
Interesting, and I definitely want to talk about that. But the reason I asked you first to join us on the podcast was to talk about your, your past capital defense work. And you and I met when we were both serving on a board together and I learned about your work, then I asked you at that time why you did it. Why would you help? Why would you help with indigent capital offense defense? And, and your answer was it just sucks you in.

Brian Kammer 1:25
Yeah, that’s exactly what happened to me. I think it happens to a lot of young aspiring attorneys and law students who are exposed to capital defense work, usually during law school. And when you are exposed to it through an internship or through hearing, you know, various speakers on the subject. Yes, it’s very it’s very compelling work. And it you know, it does really draw you in once you’ve had some contact with it and you’re you’re interested in the is social justice oriented work and, you know, you, you you feel a need to respond to the injustices that occur within the criminal defense or rather criminal justice and capital punishment systems.

Mickey Desai 2:17
Just to be clear, we are talking about helping people who can’t otherwise get defense to actually have defense in capital trials, capital punishment trials, these are people who are already sentenced to death. And you are helping them find justice?

Brian Kammer 2:34
Well, yes. So my just to to set the stage there. There’s the capital trial, where you have a jury deciding guilt and then in a separate hearing, punishment, and then there’s a direct appeal where the state court staff status reviews that conviction and sentence and affirms that usually. At that point, the option becomes for prisoners to go into habeas corpus, which is a what is what’s known as a collateral stage of review.

In a nutshell, it’s it’s a kind of this quasi civil criminal lawsuit that a prisoner files alleging that his or her conviction and or or death sentence are unconstitutional or the product of constitutional air. And so, my work was to represent indigent prisoners sentenced to death, who are then who are going into Habeas corpus. I did not do capital trial work. But I definitely know good bit about capital trial work, since the focus of my work was to you know, challenge the, the the errors or raise errors that may have arisen during the trial, especially with respect to the quality of the original defense lawyering.

Susan Cooper 4:08
in that work, is there any overlap in what you do or collaboration with the Georgia Innocence Project?

Brian Kammer 4:15
There is overlap in the just in the sense that, you know, our our, you know, innocence claims were certainly within our wheelhouse in death penalty cases, the Innocence Project in Georgia handled claims of innocence and DNA testing type situations in habeas corpus usually, or or other kinds of post conviction or entities but in non capital cases so in a lot of for example and rape cases, the Innocence Project has exonerated quite a few people who had been wrongfully convicted in prisons based on DNA testing, for example, or other other kinds of constitutional violations that led to the wrongful conviction. So, you know, we we do the same kind of work in the capital context, but we of course, also represent people who don’t have claims of factual innocence. We we will represent any we represented any and all prisoners who were coming through the appeal pipeline will in that sense, my office was like a public defender office. We didn’t pick and choose cases. So, you know, we we scrutinized all of the cases for constitutional air, either at the guilt innocence phase of the trial or the capital sentencing phase of the trial, and often the work would involve questioning the quality of the original trial at tourneys performance, especially when it came to investigating and presenting mitigating evidence at the sentancing phase.

Mickey Desai 6:08
Isn’t this work…let me rephrase my question here so well, you know, I’m just gonna ask – it isn’t this isn’t the work you guys did at the Resource Center, just a little bit duplicative of what exists publicly anyway? I mean, I think there’s already a, the Georgia Capitol defense association or something, isn’t there?

Brian Kammer 6:28
So it’s not duplicative, It’s a different stage of appeal. Capital defender office is part of the Georgia public defender system. It came online in 2005. And what it provides is trial level capital defense services. So you’re accused of a capital murder. You are prosecuted. And you get the lawyers you get if you are indigent, which 99.9% of the time you are our lawyers. The capital defender office, and they are highly trained attorneys who specialize in capital defense and they have highly trained investigators and social workers and so forth, who are specifically trained to investigate capital cases and they are the first line of defense see when when the appeal if they and this this office since 2005. The Georgia capital defender has done incredible work defending people being prosecuted for capital murder. They have in the last five years basically never lost a case at trial. And they have settled that is pled cases took two licenses and the vast majority of capital prosecutions in the state such that they have radically reduced the number of death sentences that are that have been handed out. In fact, in the last five years, only one death sentence has been handed out by a jury in the past that I say five years, only one death sentence been handed out. And that was the case where the defendant refused to be represented by anymore. So, that’s the first line of defense. If, if the, you know, just for the sake of argument if, if they if they lose the case, the person is sentenced to death, the person appeals, the destines and convictions are affirmed on appeal. At that point, we will get involved and handle the habeas corpus stage of the case. And typically, we will represent the prisoner from the initial state habeas corpus action all the way through other federal habeas corpus remedies and through clemency and to the ultimate resolution of the case whether that’s clemency and a life without parole commutation or know, released in the courts or execution,

Mickey Desai 9:04
Right. Goodness, so many questions. So one thing I would like to ask is, is there anything you would like the general public to know about how these cases get conducted? I think that I think the whole actual process of doing capital defense, maybe something of a mystery. You know, I think I think people hear that this person’s convicted to the you know, this person received the death sentence and that’s the end of it.

Brian Kammer 9:28
Right? I mean, I think that is a common, there is a lot that there is not a lot of public perception of how the capital punishment system works much less frankly, the criminal justice system. But in in the capital punishment system, the first of all, capital trials are extremely link can be very lengthy and they’re very expensive because the resources that need to be brought to bear to prevent a wrongful conviction and or death sentence are very substantial and require you know, a lot of the a lot of inputs that you don’t have in in non capital criminal cases, there’s going to be more investigators, they’re going to be expert witnesses in fields of mental health, forensic, you know, evidence of different kinds, the case is going to be scrutinized on both sides by at a level that is magnitudes more intense than an ordinary criminal case. So and that’s all very expensive, so that, you know, an ordinary capital trial can cost, you know, hundreds of thousands of dollars. Once the person is sentenced to death, it’s far from the end of the story. At that point, as I I mentioned you know, you’ve got a first round of state habeas corpus appeals. If you lose that you go on to a round of federal habeas corpus appeals in the federal court system. And and then you, you know, you’re going to be moving towards an execution warrant, usually years and even decades later. And there’s going to be the potential at that point for stays of execution but also proceedings before the clemency board for example, here in Georgia. So the process takes can take a very long time because as we found and certainly in my work, the especially, you know, in cases that came cases that were trying before the capital defender came online, that the quality of the lawyering and the defense side was very poor. The the rigor with which the court scan the cases for error was poor. And so in our work, we were able to overturn essences fairly regularly. Probably just as many, if not more cases have been overturned in habeas corpus than have resulted in execution in the past 25 years.

Mickey Desai 12:31
That helped us that whatever rate, right, and that’s amazing. But also just to make sure we’re not missing the obvious here. Can you define habeas corpus for us?

Brian Kammer 12:43
Sure. Habeas corpus is a very it’s an ancient writ. A legal remedy that was originated in England in the 13th century. And the idea was that the king was detaining people without giving them an opportunity to challenge their detention, for example, to say I’m not the right guy, or I, whatever I did, doesn’t amount to a, an offense for which I should be detained or something along those lines. And in other words, the king was not allowing any due process and the, the nobleman of the time revolted around that and other issues of oppression by the king, and forced the king to recognize the right of due process, essentially, and that was written down in a document that was called the Magna Carta. And that aspect of the Magna Carta and became enshrined in English law as Habeas corpus. So it was a a remedy, or a writ that if you are a person who’s being detained by the government, you can petition the government for to basically go into court and get up and had to produce the body of the prisoner. Which is the literal meaning of habeas corpus is you have the body and at that point to demonstrate why the prisoner should not be released for cause. And it’s an opportunity to force the government to, you know, rebut claims that that the prisoners being held legitimately in violation of law. And so habeas corpus became a part of American law in the colonies, and then became incorporated into state constitutions and then the Federal Constitution. So it’s enshrined in both the Georgia and federal constitutions and in the 80s, it became a very important part of capital litigation. Because it’s a mechanism for going back and scrutinizing how capital convictions and death sentances have been obtained. And it’s especially important to as a vehicle for examining whether whether defendants were represented fairly and effectively at the time of their trials. It’s also been an important mechanism for uncovering and exposing instances where the state has hidden evidence or suppressed evidence in some way that would would have otherwise been favorable to the defense at trial, which happens with a regularity and frequency which is, unfortunately, rather frequent.

Mickey Desai 15:47
No kidding.

Brian Kammer 15:48
Yeah. So those are and so in habeas corpus, you know, it’s an opportunity to reinvestigate these cases. Then to present additional evidence for that, for example, the jury didn’t have at the time with the original trial, but should have had. And then to argue that, you know, because the jury was deprived of that evidence that the resulting convictions and senses are unfair. So that can be you know, anything from evidence of innocence, alibi evidence or what have you that the defense either failed to uncover or the state uncovered but failed to disclose. It can also be mitigating evidence such as evidence of abuse or neglect or trauma that was experienced by the defendant in his life or her life that the jury didn’t hear about that might help explain an incident of homicidal violence or give context to that kind of violence such that the jury might not have been inclined to vote for death. So it’s, it’s It’s a comprehensive reexamination of those cases.

Mickey Desai 17:05
So you’re talking about real justice for people who couldn’t otherwise afford quality defense.

Brian Kammer 17:12
Yes. So all of our clients are indigent, and unfortunately in in George’s capital punishment system and across the country, the problem has been that, you know, the people who are prosecuted for capital murder are poor. And they are they are they have, they are coming from the margins of society. They are, you know, and therefore, they have had no access to the kinds of resources and services that might have prevented them from ending up in in circumstances where violence could occur. But also they don’t, I’m sorry, go ahead. And but also they’re deprived of the ability to to avail themselves of effective trial representation so that in Georgia before capital defender came online this practice was for judges to appoint, you know, local attorneys who who really didn’t tend to have any experience in death penalty cases, and didn’t know really how to do it, and didn’t do much to defend their clients. And so, you know, juries were were being presented with basically no dust, no evidence in the defense of of the defendant whose lives life that they held in their hands. Right.

Susan Cooper 18:33
So how many people in Georgia are currently on death row and how does that compare to other states?

Brian Kammer 18:40
Well, Georgia is down now to approximately 50 people on death row. When I started doing this work in the mid 90s. There was more like 130 or 140. Wow. And basically because Georgia has been an activeexecutioner over the past 20, quarter century, the number has gone down. But but very significantly, as I said before, the rate of error that we have exposed in the work of the Georgia Resource Center has been very, very significant and has resulted in as many or more overturning of deaths since as followed by the sentencing to life in most cases, so that has also removed people from death row. And then finally, we have in the last 10 years or so since the capital defender has really been able to do its work many, many fewer death sentences, so that there’s fewer cases coming in front end, even as older cases continue to result in executions or relief is being granted. So it’s being whittled away at either end, so to speak, and that’s why we have this drastic reduction. How does it compare to other states? I mean, George’s death row is fairly it’s it’s perhaps it’s a medium sized death row. California has a death row of approximately 700-800 people. The governor there recently issued a mass reprieve centrally. Pennsylvania has another large death row of approximately I want to say two or 300 people however, the the post conviction defender organizations up there that are sort of like that resource center are very large and have have had extraordinary success up there at overturning death sentences and so their death row has been whittled down as well in other states and the number of people on death row is declining, also, for all the same reasons, but across the Country, what you’re seeing that is especially notable is that juries are no longer handing down death sentences. This is a trend that has really become market in the last three or four years.

Mickey Desai 21:15
And I’m kind of glad to hear that. I mean, I’ve been my past readings, I’ve always thought that that the death penalty was archaic out of you know, it doesn’t actually help anybody. I’ve read statistics that say that violent crime actually occurs in a much more frequent rate in countries that actually have the death penalty. But there’s a number of reasons we can there’s a number of reasons I’m sure we could talk about why the death penalty is a bad idea. Yeah.

Brian Kammer 21:42
But, you know, it’s the fact that, you know, the death penalty. Well, studies have, I think, pretty much concluded that, you know, there is no evidence for any kind of deterrent effect by virtue the death penalty is extremely costly and it’s far more costly to prosecute in prison and execute a capital defendant than it is to imprison that person for life term. So for all those kinds of practical reasons, it doesn’t work as advertised. It’s not reliable or accurate in terms of either getting the you know, getting the right person as the guilty party or in actually sentencing to death The so called worst of the worst intends to sentence it sentences people to death who are poor, basically,

Mickey Desai 22:46
And they’re not and they’re not necessarily the worst of the worst.

Brian Kammer 22:49
Yeah. Now that you know, that there’s there are so many homicide cases in Georgia that are not prosecuted capitally which have absolutely no – there’s no way to distinguish them from any of the cases that involve the death penalty. It really is an arbitrary function of, you know, costs and and who the prosecutor is what county it’s in. It’s extremely arbitrary. Saranda, almost

Mickey Desai 23:18
Let me ask a potentially very controversial question, then do you think the system is intentionally biased towards or against groups when it comes to signing death penalty?

Brian Kammer 23:28
I don’t think it’s intentionally biased, but it is is this. It’s that the capital punishment system is embedded within a racist culture. And it’s embedded within a white supremacist culture. And so, it’s been very clear, it’s been very clear for four decades now that, for example, you know, the key factor in determining whether someone gets the death penalty is whether the victim was black or white, or white and not or non white. And if the victim is white, with respects to just in general, the victim is white, the defendant is something like four or five times more likely to get the death sentence than if the victim is non white. In Georgia, that was the statistic that was found in analyses that happen back in the late 80s. And early 90s. The Valdas study by David Valdas was very, it was a very remarkable and landmark study that found that that you know, that statistic but but also that if the defendant is black and the victim is white, for example, then that the likelihood of get a death sentence goes up to as much as you know, it’s 11 times more likely that the defendant will get death because the because of the combination of the race of the victim and the race of the defendant. So it’s riddled with this kind of bias and discriminatory impact. And the when the Supreme Court was confronted with that evidence in a case called McCleskey versus camp in the early 90s, the court basically said, You know what? It’s undisputable that there is a race bias built into the capital punishment system and the criminal justice system, but to, to do anything about it would be to basically undermine the entire criminal justice system. So it can’t be a basis for any kind of relief. So essentially, they institutionalized a racial bias in the criminal justice system, especially the death penalty system. And that bias has been shown in just about every jurisdiction where capital punishment is in existence. Pennsylvania, for example, has even more egregious race bias statistics.

Susan Cooper 26:00
So it sounds like you know, the bias has been proven the ineffectiveness of the death penalty. You know, the data is there. Do you? Do you see a future in our lifetimes? I mean, obviously we I think we can all agree that, that the criminal justice system needs to be overhauled, but what about capital punishment? Do you do you see an end to that in our lifetime?

Brian Kammer 26:26
I am more work, I think I can see it a little bit more clearly today than I could when I started doing the work in the mid 90s. Back then, you know, that was a time when there was this. This real tough on crime attitude in the government. And in the culture. There was this notion of it’s, it’s been discussed recently, I think this this notion of, you know, teen super predators and we had to do something about them and There were higher crime rates at that time and many urban areas and there was, you know, legislation was passed at the national level that is dogging, for example, Joe Biden right now, which would make, you know, gates license to law enforcement to be very harsh and in, you know, policing methods and prosecutorial discretion and so forth and sentencing, that which resulted in a surgeon and mass incarceration in this country. At that time, the death penalty seemed like it would never go anywhere. The there was also the terrorist bombing by Tim Mcveigh, which which spurred legislation that was supposed to have sped up federal habeas corpus appeals and caused executions to go quicker, didn’t do a whole lot in that regard, but nevertheless, the sentiment was emblematic of the time. And today, you know, I think that the the revolution and DNA testing as well as the, the the heightened dialogue around race bias in institutions, especially criminal justice is paving the way for a radical rethinking of the death penalty. You know, and in California as, as we discussed, you know, the governor has issued a mass reprieve. That’s really incredible.

Mickey Desai 28:32
Yeah, and I’m kind of surprised that California would actually have 700 people on death row. I mean, I’ve always thought of California is being sort of progressive and liberal compared to the rest of the country.

Brian Kammer 28:42
Part of it is, yeah, but the other part of it is is Reagan country and proposition 13 country and you know, lock him up country. That’s Southern California for the most part, and that’s where the essences are handed down, most of them in Los Angeles County. But, you know, even there, you know, obviously things are changing in Pennsylvania, there is a real push for abolition. And of course, they haven’t executed anyone there in decades. You know, Georgia does, it remains a top execution or state, even though as I’ve said, death sentences are really no longer being handed down. In any case, where the where, where the capital defender office represents the defendant. And that is incredibly significant as we you know, we confront the reality that, you know, in Georgia, we don’t really, we don’t send people to death anymore, effectively. And yet, we continue to carry out executions of cases much older cases, which, which were in those cases, you know, those are older cases. They were represented by subpar defense attorneys at a time when the capital defender office didn’t exist, they represent, you know, those cases that are that are resulting in executions in the last couple of years or so. All those cases had they been defended by the the capital defender office that exists today, almost certainly would have resulted in life sentences. So it is like this, you know, it’s like, you know, John Kerry testifying before Congress back in the 70s he they said, you know, who will be the last man to die for this? This religion or and, and that’s kind of the situation we have here in Georgia who’s going to be the last person to to die to be executed in a system we know is is really it’s broken.

Mickey Desai 30:59
Yeah. Brian, we’re almost running out of time here. I wanted to talk very quickly about the new work you’re doing. You’ve transitioned away from the Resource Center, and now you’re leading Mercer’s ABS project. Can you tell us a little bit about that?

Brian Kammer 31:12
Sure. So that this work kind of leverages my experience in the habeas corpus around into a clinical setting where I, where where we represent clients who are in habeas corpus, these are non capital clients. We get referrals from the Georgia Supreme Court, when clients or who have been representing themselves have been able to get an appeal from a denial of habeas relief, and then we can get on that case and then litigate the appeal and then go you know, if it gets remanded, we can go back into the heaviest court and help litigate there. We also do some parole work. And we will occasionally take a case into the first round of habeas litigation. So it’s an opportunity for students to to get real experience in the courts and to meet actual clients who are typically incarcerated. And it’s a great, great learning experience for students.

Susan Cooper 32:27
Yeah, I’m actually a Mercer Alum myself. Not law, but undergrad.

Mickey Desai 32:33
That is very cool. Brian, if we always try to end our shows with a call to action, and if, if a listener wanted to get involved in in the fight against capital punishment, or in legal justice reform of any kind, what would you suggest they do?

Brian Kammer 32:49
Well, in Georgia, there’s an organization called Georgians for Alternatives to the Death Penalty, which is sort of an activist group around abolition. So that are certainly easy to Google online. The Southern Center for Human Rights also does some excellent work around the death penalty and advocating for its abolition. And they’re also online at I believe. The Georgia Resource Center is also Google and and you can always email them and see if they’ve got any volunteer opportunities. And then, you know, when if and when executions are scheduled. There are always you know, opportunities, especially with organizations like Georgians for Alternatives to the Death Penalty to protest and make your voices heard around individual executions. So, those are all some ways of getting involved and I certainly do encourage it. I think we can see a time down the road where we get rid of the death penalty in Georgia and cross the Country.

Mickey Desai 34:01
Yeah, I think that the tide is definitely turning on that, especially as as you’re saying we’re seeing fewer convictions come through that carry the sentence. And I hope we do get to see that. I think that that bodes well for our country.

Brian Kammer 34:13
I do too.

Mickey Desai 34:14
Susan, do you have any other questions for Brian?

Susan Cooper 34:18
No, not at the moment.

Mickey Desai 34:19
Brian, I can’t thank you enough for taking the time to do this. I know you’re very busy outside of outside of your work. So. So thank you. Thank you for making the time to do this podcast with us.

Brian Kammer 34:29
My pleasure. Thanks for having me.

Mickey Desai 34:31
And to our listeners. Thanks again for joining us. This has been another episode of the Inclusion Catalyst. We’ll see you again with another episode another week or two. Thank you very much.

Susan Cooper 34:40
And that’s it for this episode of inclusion catalyst. If you enjoyed it, please subscribe and share with your friends and colleagues.

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