Warner Robins inmate on death row among longest serving in Georgia

bpurser@macon.comDecember 4, 2012 

WARNER ROBINS -- A Warner Robins man who is seeking to come off Georgia’s death row is among the three longest serving inmates sentenced to execution in the state.

Roger Collins, 53, has spent the past 35 years under a death sentence at Georgia Diagnostic and Classification Prison in Butts County for the 1977 rape and murder of a 17-year-old girl in a Houston County pecan orchard.

His case has been in limbo for more than 20 years after a 1991 court-ordered hearing to determine if he is mentally disabled never took place. Both state and federal laws prohibit the execution of mentally disabled persons.

Recently, a Houston County prosecutor said he will seek a mental evaluation for Collins. The case started moving again after a watchdog group petitioned the state Attorney General’s Office for a reduced sentence of life with the possibility of parole. The state contacted the Houston County District Attorney’s Office.

The long delay in the Collins case may factor into whether records may be found to determine whether he’s mentally disabled.

Also, his case begs of questions about the length of time inmates are on death row and whether there are other death sentence cases in limbo with remands to determine mental disability.

A comparative look

Georgia’s inmates spend an average of 14 years on death row, which is slightly higher than the national average of 13.1 years, according to the U.S. Bureau of Justice.

The longest serving death row inmate in Georgia has been in prison one year longer than Collins and one other inmate.

Virgil D. Presnell Jr., 58, has been on death row since 1976. He was convicted of drowning an 8-year-old girl and raping a 10-year-old girl he had kidnapped as they were walking home from their elementary school in west Cobb County in May 1976. A 1992 federal appeals court found that he didn’t get a fair trial in regard to sentencing. Presnell was retried and resentenced to death in 1999.

Like Collins, Eddie W. Finney, Jr., 55, has been on death row since November 1977.

Finney was convicted of kidnapping and beating to death elderly Macon residents Thelma Kalish and Ann Kaplan in a wooded area of Jones County in September 1977. Co-defendant Johnny Mack Westbrook had his death sentenced reversed by the Georgia Supreme Court. Westbrook died from heart disease in prison in 1993.

Also, Collins and Finney are among seven inmates on death row whose cases were remanded back to the jurisdiction each was prosecuted in after enough evidence was found by a Superior Court judge to question whether the convicted killer was mentally disabled. In each case, an order was issued in the 1990s for a hearing on whether the person was mentally disabled, but none of the cases moved forward, according to the September 2012 status report on death penalty cases from the Georgia Attorney General’s Office.

Like the Collins case, it’s unclear why the cases languished.

Languishing cases

Stephen Bright, president and senior counsel for the Southern Center for Human Rights, which provides legal representation to people facing the death penalty, was reluctant to talk about the cases specifically but agreed to talk in general terms.

He signed a letter as representing Collins in 1991 when the remand order was issued. Bright said he doesn’t remember but suspects he signed the document as the head of the office, and other attorneys under him likely handled Collins’ case directly.

Generally speaking, Bright said if a death row inmate’s case is indefinitely in limbo on a mental disability remand, it becomes by default a life sentence. Also, if there appears to be compelling evidence the inmate is mentally disabled, the prosecutor may not push to move forward because the inmate isn’t going anywhere, Bright said.

In contrast, should an inmate under a death sentence push for the hearing on the issue of mental disability, a jury could find the inmate is not mentally disabled, and that finding could move the execution forward, Bright said.

Regardless, the inmate would still be able to appeal to the State Board of Pardons and Paroles, he said.

As for the length of time inmates spend on death row, Bright said there are internal factors that come into play with each case, such as the mental disability remand in Collins’ case. External factors also impact and slow all death penalty cases such as grappling with the method of execution. Anytime there’s a broad issue before the courts, all the cases pretty much go on hold, he said.

“Why do death row inmates stay on death row so long? It’s an endless appeals system,” said Fred Bright, district attorney for the Ocmulgee Judicial Circuit.

Bright has prosecuted 13 death penalty cases as the district attorney and 12 other death penalty cases as second chair when he served as the assistant district attorney. He is no relation to Stephen Bright.

Fred Bright, who has been district attorney since 1994, inherited the Finney case. The case was returned to the trial court for a jury trial on the mental disability issue in March 1991.

Recently, there’s been movement in Finney’s case as well. Bright and George Kendall, a New York attorney representing Finney, met Nov. 28 and signed an order seeking a mental evaluation of Finney to address the remand issue, Bright said.

Kendall said there’s strong evidence from “cradle to the age of 18” that Finney has a mental deficit, and he’s always tested low on mental assessments. Kendall declined comment on why the case has been on hold for 20 years.

Possible outcomes

Fred Bright was reluctant to talk specifically about Finney or other similar cases but talked generally about the mental disability issue.

Because state and federal law prohibits the execution of a mentally disabled person, a finding of a mental disability would mean the death penalty would come off the table, Bright said.

Also, what reduced sentence options could be considered would be based on what the law was at the time the person was convicted and originally sentenced. In both the Collins and Finney cases, there was no sentence option of life without the possibility of parole -- only life with the possibility of parole, Bright said. Also, the time that must be served before consideration before parole was seven years when both were originally sentenced, he said.

Bright said to be eligible for parole consideration does not mean it will be granted. Also, depending on the individual inmate’s case, other sentencing options may be available such as multiple, consecutive life sentences that in effect result in the convicted never leaving prison, he said.

Georgia was the first state to outlaw execution of the mentally disabled in 1988. In the 2002 Atkins versus Virginia case, the U.S. Supreme Court prohibited the execution of persons with mental disability. How to determine whether an inmate had such a disability was left to the individual states.

With the remand cases such as Collins and Finney, Bright said the hearings come down to “the battle of psychologists” with each side calling its own expert and the jury left to make the call.

Also, although the burden of proof “beyond a reasonable doubt” rests with the defense on the issue of mental disability, Bright said wisdom would merit the prosecution accepting the lower threshold of a “preponderance of the evidence” in determining mental disability.

“The bottom line in Georgia, beyond reasonable doubt is still the law,” Bright said. “But you’re skating on thin ice.”

Houston County Deputy Chief Assistant District Attorney Daniel P. Bibler has met with Amy Vosburg-Casey, an attorney for the Georgia Resource Center, a nonprofit law group that Bibler said is representing Collins. She could not be reached for comment. However, Bibler said he understands Burt Baker, a supervising attorney with the Georgia Capital Conflict Office, may take over Collins’ case. Baker said he may inherit the case if it goes to trial on the remand issue, but for now the Georgia Resource Center still has the case.

Clara B. King, one of five criminal defense attorneys who comprise Watchdogs for Justice, which started the ball rolling again in Collins’ case, said Collins remains under the impression that Mark E. Olive, a Tallahassee, Fla., capital defense attorney, has agreed to take over his case -- though Collins has not had recent contact with Olive, she said. Olive, who represented Collins in 1991 when he worked for the Georgia Resource Center, is known for his litigation work in the landmark Atkins versus Virginia case. He could not be reached for comment.

To contact writer Becky Purser, call 256-9559.

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