JUSTICES: FAIR, JOLLY ELIGIBLE FOR DEATH PENALTY IN BIBB DEPUTY'S KILLING

The Georgia Supreme Court has ruled for a second time that two men
charged with the fatal shooting of a Bibb County deputy in 2006 will
be eligible for the death penalty if they're convicted, regardless of
whether they knew they were shooting at a deputy.

Antron Fair, 26, and Damon Jolly, 25, are charged with murder in the
March 23, 2006, death of Bibb County deputy Joseph Whitehead.
Whitehead was killed while helping serve a "no-knock" warrant at a
house on Atherton Street, where authorities suspected that illegal
drug trafficking was taking place.

Brian Steel, one of the lawyers representing Fair, said he's
considering appealing portions of Monday's ruling to the U.S. Supreme
Court. Steel said he's researching whether the high court would be
willing to hear the case before it goes to trial.

Phone and e-mail messages left for Jolly's defense team were not
returned Monday.

The Georgia Supreme Court's 5-2 ruling doesn't necessarily mean the
case is nearing a trial date, however.

Additional hearings still must be held, and there may be another
interim appeal to the Georgia Supreme Court, prosecutor Kim Schwartz
said.

"We'll just continue to work as hard as we can toward getting the
pretrial issues resolved so a trial can proceed," she said.

Prosecutors re-indicted Fair and Jolly in September 2008, adding drug
and firearms charges. As a result, the case returned to the high court
in February for a pretrial review.

In the most recent appeal to the state Supreme Court, Fair and Jolly's
attorneys argued that the state law that lists the aggravating
circumstances required to seek the death penalty violates the men's
constitutional rights to "equal protection," because a person who
kills an undercover officer without knowing he's an officer shouldn't
be treated the same as a person who kills an officer knowingly,
according to a case summary prepared by the court.

Previously, lawyers for Fair and Jolly have said their clients thought
they were being robbed when officers stormed the Atherton Street house
in 2006, and they didn't know they were shooting at law
enforcement.

In the 37-page ruling issued Monday, the court ruled that the
aggravating circumstance concerning the killing of a peace officer
does not violate Fair and Jolly's rights to equal protection.

"The legislative intent behind omitting a knowledge requirement from
(the statute) was to protect peace officers by providing as a
sentencing option the severest form of punishment for anyone who
murders a peace officer or other designated official while in the
performance of his official duties," the opinion said.

The court also ruled that a Bibb County Superior Court judge ruled
correctly that Fair and Jolly are not immune from prosecution based on
the argument that they were responding to "unlawful" force.
Whitehead's use of force while entering the house "was necessarily
lawful," according to the case summary.

Steel said he's considering appealing the aggravating circumstance and
immunity rulings to the U.S. Supreme Court.

As the case nears its five-year anniversary, both Steel and Schwartz
said the lawyers involved in the case are taking care to ensure that
the case is handled carefully and legally.

Lawyers are in uncharted waters in litigating the aggravating
circumstance issue. The immunity statute is fairly new, Schwartz said.
"It's complicated on a lot of levels," she said.

Georgia Supreme Court justices also reversed a portion of an order
issued by Superior Court Judge Tripp Self in which Self ruled that if
a jury returned a death sentence, jurors would be asked a question
related to the defendants' knowledge of Whitehead's status as a deputy.

The court also vacated a ruling because Fair wasn't present at a
hearing in which the trial court heard evidence regarding an alleged
conflict of interest in allowing the Georgia Capital Defender's Office
to represent both Jolly and Fair.

In June 2009, Self ruled that although he didn't believe there was a
conflict of interest, there was potential for a conflict. He removed a
person working with Jolly's legal team who was alleged to have been
privy to confidential information about Fair's case.

The justices ruled that there either must be a new hearing or the
court must obtain a waiver from Fair, according to the summary.