COURT SAYS KILLING DEPUTY WAS CAPITAL OFFENSE

Pair Said They Didn't Know He Was Officer With 'No-Knock' Warrant.
That Doesn't Matter, Justices Say.

The Georgia Supreme Court ruled Monday that a person found guilty of
murdering a law enforcement officer is eligible for the death penalty,
even if the killer did not know the victim was an officer.

The 5-2 ruling was issued before the upcoming trials of Antron Dawayne
Fair and Damon Antwon Jolly, who are accused of killing Bibb County
sheriff's deputy Joseph Whitehead in 2006. Prosecutors are seeking the
death penalty against both men, who will be tried separately.

Whitehead, the lead officer in a drug investigation, entered the home
using a "no-knock" warrant. Within seconds, Whitehead was shot and
killed. Investigators found crack cocaine and marijuana at the scene.

Prosecutors are seeking the death penalty against Fair and Jolly on
the grounds they committed the aggravating circumstance of killing a
law enforcement officer in the performance of his duty.

Defense lawyers contend their clients should not be eligible for the
death penalty, because they did not know Whitehead was an officer.

In Monday's ruling, Justice George Carley wrote that the state's
death-penalty statute "is silent regarding the defendant's knowledge
of the officer's status." If the Legislature, when enacting the law in
1973, had intended to require knowledge, it would have done so, Carley
said.

Justice Carol Hunstein, joined by Chief Justice Leah Ward Sears,
dissented on this issue.

"Clearly, a defendant who knowingly murders a peace officer ... is
more culpable than one who does not know the status of his victim,"
the dissent said.

"Without such knowledge," it said, "there is nothing to distinguish
the defendant who murders a victim who by happenstance was such a
public servant from a defendant who murders any other victim, and thus
nothing to specifically justify imposition of the ultimate
punishment."

Fair and Jolly also contended that they were justified in opening fire
on the officers because they thought they were being robbed, not the
subject of a "no-knock" warrant.

The state's high court said the trial judge erred during pretrial
hearings by not ruling on the issue of whether the two men were
entitled to immunity from prosecution for that reason. The state
Supreme Court directed the judge to decide that issue before the case
goes to trial.