Hope for the Best and Prepare for the Worst

Mar 28, 2022

Jeremy Gross was on trial for the violent murder of a young store clerk, and the prosecution pursued the death penalty. His lawyer offered no legal defense as to Jeremy’s guilt because of the insurmountable evidence. Instead, the lawyer provided a sympathetic explanation for the crime Jeremy committed. This explanation came in the form of mitigating evidence offered at the sentencing phase of Jeremy’s trial in an attempt to spare his life. In preparation for the sentencing phase, the defense spent years scouring Jeremy’s background and amassed a wealth of information, which ultimately saved Jeremy from execution. In Georgia, this mitigating evidence is now discoverable to prosecutors in cases where defendants elect to use (opt-in) Georgia’s Criminal Procedure Discovery Act (hereinafter “the Act”). The Act is a major obstacle for defense attorneys hoping to tailor the presentation of mitigating evidence after conducting an exhaustive search that may reveal evidence unfavorable to the defendant.

The purpose of the reciprocal discovery provision of the Act was to promote efficiency and fairness by giving both defendants and prosecutors access to their counterpart’s bounty of potential evidence in felony trials. Prior to the Criminal Justice Act of 2005, which amended the Act, Georgia’s reciprocal discovery statute did not cover items to be used for mitigation during the sentencing phase of death penalty trials.

In an article published for the Georgia State University Law Review, I highlight the issues associated with the Act and its application in death penalty trials, particularly those created by the recent inclusion of the sentencing phase in reciprocal discovery. You can read the full article HERE.

Practice Area: Criminal Defense