Three Supreme Court justices and others said competent counsel could have saved his life.
Three Supreme Court justices and others said competent counsel could have saved his life.By Kyle C. Barry
When jurors in Walton County, Georgia, decided that Donnie Cleveland Lance should die for the 1997 murders of his ex-wife and her boyfriend, they didn’t know much about him beyond the crimes of which they had just convicted him.
They didn’t know that Lance had ingested gasoline as a child, or that he was trampled by a horse as a teenager, or that he had breathed toxic fumes while cleaning the inside of an oil tank. They did not know that he suffered repeated head trauma from multiple car crashes, or that he had once been shot in the head. And they did not know, as four mental health experts would later testify at a post-conviction hearing, that together these incidents caused brain damage and dementia—new impairments on top of a low IQ that placed Lance in the borderline range for intellectual disability.
Lance’s trial counsel had not prepared as though it were a capital case. The lawyer did not, as constitutional standards require, investigate Lance’s background or present any evidence that might have convinced a juror (a death verdict in Georgia must be unanimous) that Lance’s life was worth saving, that he wasn’t wholly irredeemable, one of the proverbial “worst of the worst” for whom the increasingly rare punishment of death is supposed to be reserved.
Since new counsel discovered the details of Lance’s background, at least five jurists who reviewed the case—a Butts County Superior Court judge, one judge on the U.S. Court of Appeals for the 11th Circuit, and three justices of the U.S. Supreme Court—concluded that better lawyering could have saved Lance’s life and that he should have been resentenced. In a dissent from the Supreme Court’s decision not to hear Lance’s claims, which Justices Ruth Bader Ginsburg and Elena Kagan joined, Justice Sonia Sotomayor said the case reflects “an egregious breakdown of basic procedural safeguards.”
But the Georgia Supreme Court disagreed. The court said that while Lance’s “trial counsel performed well below basic professional standards,” none of the new neuropsychological evidence would have changed the mind of a single juror. That ruling was never disturbed.
On Wednesday night, the State of Georgia killed Donnie Lance with a lethal injection of pentobarbital. He was pronounced dead at 9:05 p.m. He was 66.
Lance had two children, Jessie Lance and Stephanie Lance Cape, both now in their 30s, who asked the Georgia Board of Pardons and Paroles to spare their father’s life. “Even though Daddy was in prison, he was still our father. Dad would talk to us about our school and make sure we were studying and doing well. He would remind us to be polite and kind to other people,” they wrote in a letter.
Stephanie still lives in Jackson County, Georgia, about a two-hour drive from where Lance was held on death row, and she went to visit every two weeks, often bringing her 2-year-old daughter. “We are closer to our father in prison than a lot of our friends are to their fathers who live near them,” the letter said.
The support from Jessie and Stephanie also meant support from one victim’s family: Lance was convicted of killing their mother. That loss left “a huge gaping hole in our hearts,” they wrote, “but at least we’ve had our dad at our sides.”
At trial, the state introduced evidence that Lance had long abused Sabrina “Joy” Lance, including beating, kidnapping, strangling, and threatening to kill her. Early one November morning in 1997, Lance allegedly went to the home of her boyfriend, Dwight “Butch” Wood Jr., and kicked in the door. He shot Wood and beat Joy Lance to death with the butt of his shotgun.
But over 40 years of experience with the modern death penalty has shown that death verdicts often do not turn on the egregiousness of crimes or the culpability of those who commit them. We do not execute the “worst of the worst,” as many would like to believe. Instead, death sentences are meted out to people who, like Lance, have endured significant trauma, suffer from serious cognitive impairments or mental illness, and who receive deficient legal counsel, according to reports by the Death Penalty Information Center and The Fair Punishment Project, a former project of Tides Advocacy, the fiscal sponsor of The Justice Collaborative and The Appeal. Other reports have shown how arbitrary factors like race and geography influence death
verdicts, especially as capital punishment contracts into just a handful of counties nationwide.
Georgia killed Donnie Lance when death sentences in the state and across the country are increasingly disfavored by legislators, juries, and even prosecutors. Half of U.S. states have either abolished the death penalty or currently prohibit executions, and last year the 34 death sentences nationwide were the second fewest since 1973. Georgia went five years without a death sentence before April of last year, and while district attorneys sought 40 death verdicts in 2005, that number was down to three by 2018, according to the Atlanta Journal-Constitution.
That means most of the 43 people still on Georgia’s death row face a punishment imposed under conditions and norms that no longer exist. “Those are people who were sentenced to death some time ago often with lawyers who were not qualified to try a death-penalty case,” law professor and long-time capital defense lawyer Stephen Bright told the Atlanta Journal-Constitution last year. “They are also people who would not be sentenced to death today.”
For Lance, the lapse in “basic procedural safeguards,” as Sotomayor wrote, was the product not just of poor lawyering but of courts that tolerate it and a system that prioritizes finality over vindicating legal rights. When Lance first claimed on post-conviction review that he had had ineffective assistance of counsel, he won. The county superior court threw out his death sentence. But when the Georgia Supreme Court reversed, that left Lance to seek relief in federal court, where only state court rulings that are contrary to law or so “unreasonable” that “no fairminded jurist” could agree with them are set aside—a near-impossibly high standard that dooms the overwhelming majority of claims.
That’s why 11th Circuit Judge Beverly Martin voted to deny his petition, even though, as she wrote in a concurring opinion, she believed that “had the jury heard the mitigating evidence … there is, in my view, a ‘reasonable probability that at least one juror would have struck a different balance’” and voted for life.
Lance has always maintained his innocence, and last year he asked the Georgia courts to order DNA testing on certain pieces of evidence that he said could help prove it. The state said the evidence against Lance, “although circumstantial, was overwhelming,” and opposed his request. It was the second time in recent months that Georgia refused to analyze available, untested DNA evidence before an execution, despite demands from both the person claiming innocence and members of a victim’s family. Lance and Joy’s children lobbied for DNA testing in his case. And last November, Georgia killed Ray Cromartie after the daughter of the man he was convicted of killing pleaded for testing, but was ignored.
When the Board of Pardons and Paroles denied clemency for Lance, it was aware of the new evidence about his personal history and had the discretion to act on it. It also had the pleas from Lance and Joy’s children, who maintain doubts about their father’s guilt but, in any case, did not want the loss of one parent to lead to another.
Stephanie’s husband, Seth Cape, had also told the board how the execution would harm their young daughter, Lance’s granddaughter. She “loves her Papa Don,” he wrote, “and it will hurt her tremendously if he is executed. How do you explain to such a young child what happened to her grandpa?”
This article first appeared in the Appeal
