ATLANTA (AP) — Lawyers for a Georgia inmate set to die this week for a 1979 killing urged the state's highest court on Monday to throw out his death sentence, calling it disproportionate to his crime.
Brandon Astor Jones was convicted of killing of convenience store manager Roger Tackett in greater Atlanta's Cobb County and is scheduled to receive an injection of pentobarbital at 7 p.m. Tuesday at the state prison in Jackson.
At the time of Jones' 1979 conviction. a death sentence for a murder committed during a robbery at a business was rare and that penalty hasn't been applied at all in any similar case in Georgia in the past 20 years, Jones' lawyers argued to the state's Supreme Court.
The state and federal constitutions "prohibit a criminal sentence that is excessive, or that is arbitrarily or rarely imposed," the lawyers wrote in their filing.
Jones' lawyers say they reviewed other cases of murders committed during armed robberies in Georgia, including some that were more brutal or involved more victims. Dozens of those defendants served their sentences and have been released on parole, his lawyers wrote. At 72, Jones is the oldest inmate on Georgia's death row.
The "community conscience is now, and has been for at least twenty years, that a spontaneous murder committed while carrying out the armed robbery of a retail establishment — while extremely serious and deserving of serious punishment — is not among the 'worst of the worst' offenses for which the death penalty is constitutionally reserved," the lawyers wrote.
Lawyers for the state responded in their own court filing that Jones' attorneys were trying to create a new category by emphasizing that the murder was committed during an armed robbery at a retail establishment.
Jones "was not sentenced to death for 'the armed robbery of a retail establishment.' (Jones) was sentenced to death for malice murder," they wrote.
Disputing that his sentence is excessive, state lawyers point to a state Supreme Court opinion from one of Jones' earlier appeals in which he made a similar argument. The high court judges included an appendix of 19 cases they said were similar since they involved murder during an armed robbery or burglary. The state's lawyers noted that eight of those defendants have been executed, five remain on death row and six successfully challenged their convictions and sentences but not on the grounds of disproportionality.
Jones' "crimes, including the execution of an unarmed man during the commission of an armed robbery, are squarely within the type of crimes for which the death penalty is sought and given," the state lawyers wrote.
Jones has another appeal challenging the constitutionality of the state's execution secrecy law pending before 11th U.S. Circuit Court of Appeals. The law classifies as a confidential state secret the identity of any person or entity involved in an execution, including the drug producer.
According to evidence at his trial, Jones and another man, Van Roosevelt Solomon, were arrested at the store by a policeman who drove a stranded motorist there to use a pay phone. The officer heard four shots inside, drew his weapon and entered the store, finding Jones and Solomon inside, the court heard.
Tests showed each man had recently fired a gun or handled a recently fired gun, according to the evidence. The cash drawer had been removed and was found wrapped in a plastic bag.
Jones was convicted in October 1979. A federal judge in 1989 ordered a new sentencing hearing because jurors had improperly been allowed to bring a Bible into the deliberation room. Jones was resentenced to death in 1997.
The Georgia Board of Pardons and Paroles — the only entity in Georgia authorized to commute a death sentence — on Monday denied clemency for Jones.
Solomon also was convicted of the killing. He was executed in 1985.