ATLANTA — Two men accused of killing an undercover officer who raided their suspected drug compound are fighting a prosecutor’s attempt to try them with the death penalty.
Antron Fair and Damon Jolly are charged in the shooting death of Bibb County Sheriff’s deputy Joseph Whitehead, the first of nine undercover agents who raided their Macon residence using a special “no knock” warrant in March 2006.
Jolly and Fair have pleaded not guilty and say they shouldn’t face a death penalty trial because they didn’t know Whitehead was a police officer.
The Georgia Supreme Court is considering whether a state law that allows prosecutors to pursue the death penalty if “the offense of murder was committed against any peace officer” should apply.
Defense attorney Brian Steel asked the court Monday to strike down the provision as unconstitutional. He argued it violated equal protection laws because it meant suspects who kill an officer — even unknowingly — could face execution while suspects convicted of murdering someone else face only life in prison.
“It doesn’t foster any good for the state of Georgia to kill someone if the person didn’t know they were killing a police officer,” Steel said.
Bibb County District Attorney Howard Simms said prosecutors can prove that the men knew the invaders were law enforcement officers. He said they announced who they were before raiding the building, but Simms said that shouldn’t matter.
“It’s a dangerous job,” said Simms. “We owe them the extra bit of protection because this is probably the most dangerous job in law enforcement.”
The pretrial maneuverings have infuriated the law enforcement community, which has worried the top court could set a precedent.
Prosecutors say the house where the two suspects stayed was a heavily guarded drug compound. The place was ringed with video cameras and barking pit bulls were standing at the ready in case officers tried to take it by force.
When Whitehead and the other officers surprised the men about 1 a.m. March 23, 2006, authorities said Jolly and Fair were ready. They found the two in a back bedroom, armed with an Uzi-type machine gun and a chrome handgun.
Simms said the least the state can do is affirm that defendants convicted of murdering a police officer should face the death penalty — whether they knew they were firing at an officer or not.