Attorneys representing two men accused of fatally shooting a Bibb County deputy argued before the Georgia Supreme Court this morning that the "no knock" warrant used by deputies to enter a house without warning was invalid, and because their clients didn't know they were firing on lawmen they should not be prosecuted.
"They believed they were robbers and that's why they fired," said Douglas Ramseur, an attorney representing Antron Fair, 23. "Now the state is trying to execute them and we think that's unfair."
Fair and Damon Jolly, 22, are accused of fatally shooting Bibb County Deputy Joseph Whitehead as he and other deputies served a "no knock" search warrant at a house on Atherton Street on March 23, 2006.
To qualify for the death penalty, in addition to proving a defendant is guilty of murder beyond reasonable doubt, the prosecution must also prove there was at least one of 11 aggravating circumstances afforded by Georgia law.
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The prosecution has argued throughout pretrial hearings that Fair and Damon Jolly knew they were firing on deputies, one of the aggravating circumstances listed in Georgia law.
Bibb County District Attorney Howard Simms argued that Georgia law doesn't require that Fair and Jolly knew they were shooting at a deputy in order for them to be punished by the death penalty.
Even if it did, he said the deputies identified themselves as law enforcement upon entering the house and surveillance cameras positioned outside would have given Fair, Jolly and other people inside the house warning that deputies were coming in.
He said the cameras were connected to a TV inside the house and pit bulls in the yard started barking at the deputies.
Further, Ramseur argued that Fair had the right to defend himself against the perceived threat of a robbery to the house where he had been living part time.
Simms told the court both Fair and Jolly told officers on the night of the shooting that they lived on Baxter Avenue in Riverside Gardens Apartments and received government subsidies for residences there. It wasn't until later when another man was in trouble with the law that the man testified Fair lived in the house part-time and helped pay the bills, he said.
"This is a crack house," Simms told the court. "That's all it is.
"It's not a second home."
When asked by justices what proof existed beyond verbal statements that Fair lived at the house, Ramseur listed a bed, dresser, TV and clothing that Fair kept at the house.
"He spent the night there," Ramseur said. "He had keys."
Also at issue was the validity of the "no knock" warrant deputies were serving during the raid.
The search warrant application requesting permission to search 3135 Atherton St. was first made public in Fair's attorneys' application to the Supreme Court for the hearing.
Whitehead used information provided by two confidential informants to apply for the warrant, writing that he had reason to believe officers would find marijuana, money, records of illegal transactions and evidence the house was occupied. He also wrote that he had reason to believe officers would be endangered and evidence would be destroyed if the officers announced their presence before entering the house.
Ramseur argued that the warrant was invalid both because of the process by which it was obtained and because a trial court judge deemed the statements of one of the confidential informants used to apply for the warrant as unreliable.
The statement of a second confidential informant used for the warrant was found in a pretrial hearing to be sufficient for a search warrant, but not for a "no knock" warrant, Ramseur told the court.
Without the testimony of the deputy who applied for the warrant and witnessed the confidential informants' statements, he argued the warrant is invalid. In a poignant moment, one of the justices pointed out "he is unavailable because he was killed by your clients." Ramseur responded, arguing that Fair and Jolly's rights should remain intact no matter the reason why Whitehead isn't available to testify.
Ramseur also argued the search warrant was too general and did not specify what items could be seized.
Simms said an additional document with more specific information was presented to and was considered by the magistrate judge who signed the "no knock" warrant.
At least 16 Bibb County deputies and Macon police officers sat in the audience during the arguments.
Bibb County Lt. Harry Colbert said deputies are patiently waiting for the case to go to trial and have tried to return to work as usual in the two years since Whitehead's death.
"That's what Joe would have wanted everybody to do," he said. "I think everybody from the sheriff on down wants to see this behind us, but everybody realizes this isn't going to be a quick process."
It could be several months before the justices issue an opinion on the case.
Speculation as to when Jolly and Fair, who are being tried separately, will go to trial vary from as early as late this year to early 2009.
Both men are being held at the Bibb County Law Enforcement Center without bond on murder charges.
For more information, come back to macon.com or read Wednesday's Telegraph.
Information from Telegraph archives was used in this report.