Attorney General Baker Didn’t Always Take Stands
(APN) ATLANTA — Georgia Attorney General Thurbert Baker has been in the local and national news the last couple weeks for opposing Republican Gov. Sonny Perdue on his attempt to sue the US federal government over the private health insurance mandate in the recent health care expansion bill which finally passed Congress.
And a recent Insider Advantage poll published April 08, 2010, shows Baker has gained about eleven percentage points, from 7% to 18% in the time period after he started receiving national press attention.
However, Baker has not always taken stands as Georgia’s AG. In fact, Atlanta Progressive News’s archives show that Baker has authored the state’s opinions on some of the most controversial issues: arguing the State’s case for the execution of Troy Davis despite 7 of 9 witness recantations; defending Georgia’s Voter ID laws limiting the number of ID’s a person can use to vote; defending Georgia’s E-voting machines which may or may not be recording votes accurately; and defending Georgia’s restrictive ballot access laws requiring third party and independent candidates to collect thousands of petition signatures.
Earlier on the campaign, APN spoke with several of our readers and people in the community about Baker’s record as AG, and some said they did not blame him for arguing the state’s cases because that was his job.
However, now Baker has decided, in the 11th hour of his term and at the height of a Gubernatorial Primary, to declare his independence as an Attorney General and disagree with the Governor.
This raises several questions: If he did not believe he had independence before, when did he discover his independence, and why does he believe he has it now? Moreover–if he has shown that he will take a stand on issues when he disagrees with the Governor or the legislature–does that mean he really agreed with the execution of Troy Davis, stricter Voter ID requirements, E-Voting, and ballot access restrictions?
APN reviewed several of the legal opinions authored by Baker and spoke with individuals involved in the various issues to learn about their opinions of Baker’s performance as AG.
APN left three messages with the Baker campaign, and one with Baker’s AG office. None of the calls were returned.
In the case of Troy Davis, Baker wrote numerous opinions at different stages arguing that the State of Georgia should execute Davis, despite 7 of 9 witness recantations. On three occasions, a court intervened when Davis was just hours away from being executed.
Ultimately, the Supreme Court of the US disagreed with Baker and the State of Georgia and granted Davis a new trial. Davis is currently awaiting that new trial.
Baker’s argument was agreed with by Justices Scalia and Thomas, some of the most Right-wing Conservative judges on the SCOTUS, who dissented from all the other justices.
The most recent argument before the SCOTUS in May 2009 was written by Baker; Mary Beth Westmoreland, Deputy AG; and Susan Boleyn, Senior Assistant AG.
“This court should summarily deny this petition for a writ of habeas corpus as simply an attempt to circumvent the statutory prohibition… against filing an appeal or a petition for certiorary from Circuit Court’s denial of leave to file a second federal habeas corpus petition,” Baker wrote.
“Petitioner has failed to justify the grant of relief as he was failed to demonstrate that ‘adequate relief cannot be obtained in any other form or from any other court,” Baker wrote.
“Petitioner has failed to demonstrate extraordinary circumstances so as to warrant the grant of extraordinary relief from this court,” Baker wrote.
Basically, Baker argued that the 1996 federal law, the Anti-terrorism and Effective Death Penalty Act (AEDPA) prevented Davis from presenting evidence of his innocence, because the evidence had been presented before and found uncompelling. However, the court never considered the evidence in the context of an innocence claim. The court had considered the evidence in the context of Davis’s argument that he never received a fair trial to begin with.
Therefore, Davis did present evidence of innocence at earlier stages in his appeal process, but he did not say the magic words when doing so; and Baker argued that it was too late now to do so.
“Relief was available to Petitioner in numerous forms and forums, Petitioner simply failed to establish that the relief which he sought should be granted. Petitioner seeks one more bite at the apple, which is antithetical to AEDPA principles,” Baker wrote.
However, the US Supreme Court disagreed, finding that the US Constitutional right to not be executed if innocent was more important than a 1996 law which may be unconstitutional.
“The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing,” Justice John Paul Stevens wrote for the majority.
Stevens argued it “would be an atrocious violation of our Constitution and the principles upon which it is based to execute an innocent person.”
“Imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man,” Stevens wrote. “The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning.”
At an earlier stage in Davis’s case, Baker’s office issued a press release announcing victory that a prior Davis appeal had been defeated.
“Baker, in announcing the appellate victory, stated that he was pleased that the state ‘was close to seeing justice done in this case. This convicted cop killer has been sentenced to death by a jury of his peers, which is the appropriate punishment for this senseless and heinous crime,'” Baker’s office wrote in a September 27, 2006, press release obtained by Atlanta Progressive News.
Baker was also the one who scheduled Davis’s execution each time.
Death penalty opponents who spoke with APN off the record said they believed Baker could and should have used his prosecutorial discretion to investigate Davis’s innocence claims, offer Davis a different sentence, or at least not stand in the way of Davis’s appeal for a new trial.
Davis’s sister, Martina Correia, said she wished Baker had exercised independence at AG years ago; not only when he was running for Governor.
“If he wants to be Governor of Georgia, there has to be fairness. It’s okay to be tough on crime, but when it comes to cases, when mistakes are made, it’s up to the Attorney General as the highest lawyer in the State to say, let’s give an opportunity to see if a mistake was made and correct it,” Correia told APN.
“There’s thousands of people even in Georgia whether he knows it or not that are very concerned about Troy’s case and they’re paying very close attention,” Correia said.
“Everyone, even Troy Davis, should be given a fair case in court. You’re talking about somebody’s life. We understand Officer MacPhail lost his life, but we dishonor MacPhail if we don’t seek to get the truth but we seek to cover it up,” Correia said.
“You have the largest court in the land, the US Supreme Court had a problem with this case that an innocent man could be executed. It would seem the Attorney General would want an evidentiary hearing to happen,” Correia said. “It seems the AG would want to know [the truth].”
“Just like he stood up and said it would be waste of time to sue the federal government [over the health care expansion] and a waste of money, taking a stand for Troy Davis would be something good as well,” Correia said.
“You can’t just take a stand when it looks like it would be something good for your political future,” Correia said.
“I would say the job of the prosecutor is not only to prosecute the guilty but to free the innocent,” Correia said.
As for Baker’s stand on health care, “I thought it was a double standard. I felt like it was political posturing,” Correia said.
As previously reported by APN, there have been several legal challenges involving Georgia’s controversial Voter ID laws. Baker has defended the ID laws at every stage.
“He should’ve said to the Governor, the Secretary of State, I’m not going to defend this draconian, unconstitutional Voter ID law; but he did,” State Rep. Tyrone Brooks told APN.
In September 2005, Common Cause/Georgia and others filed a lawsuit against various Georgia county Board of Elections and then-Secretary of State Cathy Cox challenging Georgia’s new Voter ID law, which reduced the number of eligible ID’s to be used in voting from 13 to 5.
On October 18, 2005, the United States District Court for the Northern District of Georgia blocked enforcement of the Voter ID law, saying it amounted to an unconstitutional poll tax and an undue burden on the right to vote.
Baker, others in his office, and private lawyers hired by the State, defended the policy in briefs prepared for the court.
Then in February 2006, the Georgia legislature amended the law to, among other things, provide for a free special ID called the “Voter ID” for individuals registered to vote with no other photo ID. However, the law still eliminated several previously accepted IDs. The plaintiffs amended the complaint to reflect the changes in April 2006.
“Any registered voter who does not possess a photo ID can obtain one free of charge at the voter registrars office in his or her own home county, or additional county designated offices, or any of the 60 DDS service centers throughout Georgia. That some currently registered voters might need to visit one of those offices in order to obtain a photo ID card to vote in person is not a burden which supports striking down the law,” Baker argued in July 2006.
“Additionally, the 2006 Photo ID Act applies only to registered voters who vote in person. Any registered voter may still vote by mail without presenting a photo ID,” Baker argued.
“In Georgia, those who fail to vote by mail and wish to vote at the polls on Election Day, but do not have a photo ID, may vote a provisional ballot, obtain a photo ID, and present that identification within two days after the election,” Baker argued.
“It is obvious that Plaintiffs’ principal asserted injury is that some individuals who lack a photo ID would prefer not to vote absentee by mail. Such an asserted injury is not a sufficient basis for striking down the law,” Baker argued.
“To the extent that the photo ID requirement imposes any restriction on voting rights, that restriction is very slight,” Baker argued.
On July 20, 2006, Fulton County Superior Court Judge Melvin Westmoreland blocked implementation of Georgia’s new Voter ID laws in the 2006 Primary Election, saying it would cause “irreparable harm” to Georgians’ right to vote, according to the Associated Press.
An appeal signed by Baker and other attorneys in his office argued that the Voter ID could not “unduly burden the fundamental right to vote” if the right to vote in the State of Georgia is in fact not absolute.
“Georgia has a legitimate interest in maintaining the integrity of the election process and minimizing voter fraud,” Baker added.
Eventually in 2007, the court upheld the amended Voter ID law.
Incidentally, former Governor Roy Barnes who is currently running again for Governor, served as one of the attorneys challenging the Voter ID law.
Another unsuccessful challenge against the voter ID law was brought by the Democratic Party of Georgia, as APN previously reported.
AG Baker, Deputy Attorney General Dennis Dunn, and Assistant Attorney General Stefan Ritter authored the State’s defense brief on June 30, 2009, to the Georgia Supreme Court, in the case brought by VoterGA challenging E-voting in Georgia.
VoterGA countered that Baker et al. made over 40 errors of fact and law in their brief.
At issue was the integrity of our elections process altogether. As Atlanta Progressive News has previously reported in depth, citizens have no meaningful way of knowing whether the vote totals reported by E-voting machines actually reflect the votes cast by the voters. For Baker to have argued otherwise was factually wrong.
“It [the case] involves no actual loss of vote to any citizen – real or alleged – and no loss of vote to the Appellants,” Baker argued.
However, VoterGA responded the State has “no evidence to prove that no vote loss occurred and it would be technically impossible to produce such evidence. Appellants [VoterGA] produced evidence of discrepancies including vote loss.”
Baker called E-voting “the most reliable [voting system] Georgia has ever had – without dispute.”
VoterGA responded that the State has “offered no evidence to quantify the reliability of vote recording and counting of the current system and it is technically impossible to do so without an independent audit trail of the votes cast as the law required.”
Baker rested his case that E-voting was so reliable based on the testing that the State does on the machines. However, VoterGA said that Baker made a number of false claims in that regard in his brief.
For example, Baker said the machines met federal certification standards, but VoterGA said no Penetration Analysis was done to identify all possible areas of attack on the machines. Baker said the machines are kept under lock and key but VoterGA says that some E-voting machines were stolen in 2002 and that machines were not kept secure in Dekalb County.
Baker said the State tests the machines again at election time but VoterGA says there is no evidence of this.
Baker said the State also conducts random audits of machines called Parallel Tests, but VoterGA says these audits are conducted on dummy elections, not on real elections, and there’s no way to prove that the elections count votes accurately in real elections.
“After the election the voter’s ballot can be displayed and printed,” Baker argued.
However, as previously reported by APN, there is no actual ballot; there is simply the information in the computer’s memory card which is re-applied to an electronic ballot template. Also, the re-aggregated ballot is never actually printed in a recount process; so to say the information is stored and available is a moot point.
“The [State has] provided no evidence that proves the image displayed and printed matches the ballot selections that the voter originally saw on the touchscreen before casting his or her vote on Election Day,” VoterGA said. “[The State’s witness] Mr. Cobb has admitted in deposition, there is also no way to be sure that the results of software tampering won’t be passed along to those ‘ballot images’.”
Baker also said, “The paper trail created by the machines allow their results to be physically audited.”
“Any so-called ‘audit trails’ are generated by the equipment at a time after the votes can be corrupted. Mr. Cobb has already admitted that there are no independent audit trails as was required by the law,” VoterGA wrote.
Numerous states that once used similar E-voting equipment as Georgia have switched back to paper ballots, added a voter verifiable paper audit trail to their E-voting machines, or switched to optical scan machines. Georgia remains the only state to use unverifiable E-voting equipment statewide.
Now, it is unclear whether Baker personally believed and agreed with everything he was arguing with regards to E-voting, or whether he felt he had no choice but to defend the practice. These are legitimate questions for Baker to answer, but he has so far failed to respond to APN’s press inquiries.
As previously reported by APN, Baker also argued to defend Georgia’s ballot access restrictions in a case filed by Faye Coffield, who ran against US Rep. Hank Johnson (D-GA) in 2008 as an independent write-in candidate.
Coffield had attempted to get on the ballot, but Georgia’s laws require independent candidates in non-statewide races to obtain petition signatures from five percent of the registered voters in the appropriate legislative district. For the fourth US Congressional District in Georgia in 2008, Coffield was required to obtain 15,061 signatures, but only succeeded in obtaining about 2,000.
Baker argued the State’s position in legal briefs, along with his assistants, Mr. Dunn, Mr. Ritter, and Penny Hannah, Assistant Attorney General.
Baker argued that the petition requirement was not burdensome, despite the fact that no candidate has been able to successfully meet the requirement in decades. He adds that because voters can sign multiple petitions for multiple candidates, that balances out the high number of signatures required compared to other states.
“Plaintiffs have presented to this Court nothing that would alter the legal propriety of Georgia’s 5% rule. Their suggestion that there are new or novel standards of review is incorrect,” Baker et al wrote.
Now, Coffield’s attorneys argued that a 1974 case Storer v Brown established a proper test of whether ballot access laws were too burdensome: “Could a reasonably diligent independent candidate be expected to satisfy the signature requirement, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot? Past experience will be a helpful, if not always unerring, guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter if they have not.”
However, Baker’s argument did not even mention the Storer case, which has been cited by the Supreme Court of the US as recently as 2008, according to Coffield’s attorneys.
“They otherwise have made no new or novel arguments. They have failed to present any new theory that would justify disturbing the legal precedents regarding ballot access. The Georgia statute in question is the same statute reviewed and upheld in earlier decisions of the federal courts,” Baker wrote.
“Georgia still has the same interest articulated and approved in Jenness [an earlier case] and its progeny, that is, requiring a preliminary showing of a significant modicum of support before putting a candidate’s name on the ballot. For these reasons, Plaintiffs have failed to state a claim upon which relief may be given and their complaint should be dismissed,” Baker wrote.
Richard Winger of Ballot Access News says he does not think the Jenness case was relevant. Winger previously told APN that while indeed there had been previous rulings upholding the Georgia law, that those rulings were in cases where the plaintiffs were not actual candidates who had attempted to get on the ballot. Therefore, because Coffield is the first candidate in Georgia history to both try to petition and challenge the constitutionality of the law, he does not believe Jenness v. Fortson is applicable.
“There is no other state with a law that has kept all minor party or independent candidates off the ballot for such an important office as US House for decades,” Richard Winger of Ballot Access News said in a press release sent out by the Libertarian Party of Georgia.
“Every state has had minor party and/or independent candidates on the ballot in recent years for president, and US Senate,” Winger said. “Every state except Georgia has had multiple minor party and/or independent candidates for US House during either of the last two elections. Georgia law for US House is absolutely the worst ballot access law of any type in the nation.”
Again, now that Baker has demonstrated he can exercise independence and discretion as Attorney General, does that mean he truly believed Georgia’s ballot access laws were acceptable?
Another case in which Baker vigorously defended the State’s position, upsetting many Black leaders, was the case of Genarlow Wilson.
Initially, Wilson was sentenced to ten years for having consensual oral sex with a 15 year-old girl when he was seventeen.
In June 2007, a judge ordered Wilson released, saying that the ten year sentence was a “grave miscarriage of justice.”
However, rather than accept the judge’s ruling, Baker refused to release Wilson, who at that time had already served 28 months, while appealing the judge’s ruling. Baker argued that the judge did not have the authority to reduce Wilson’s sentence.
Ironically, if Wilson and the 15 year-old had sexual intercourse, the case would have fallen under Georgia’s “Romeo and Juliet” exception, but oral sex with a minor qualified as child molestation, carrying a minimum sentence.
The Georgia legislature subsequently acted to close the bizarre loophole, but the new law could not be applied retroactively to Wilson’s case.
Eventually, Baker lost the appeal and Wilson was released. Today he is a student at Morehouse College and is working and going to school and doing well, Rep. Brooks told APN.
“People who just look at this posturing right now over the national health plan and the Republican governor, it’s easy for people to look at that, and forget about everything else,” Brooks said.
“And I said look, this is only because there’s a Governor’s race,” Brooks said. “I pride myself in not being one who tends to forget things, maybe it runs in my genes.”
When asked whether he believed Baker’s role as AG prevented him from helping Wilson, “If he didn’t have a choice then, he didn’t have a choice now,” Brooks said.
“When he decided to run for governor, that’s when he discovered this so-called independence,” Brooks said. “You gotta be consistent.”
“Attorney Generals have wide discretion whether they’re going to prosecute or not. They have that latitude, they have that discretion,” Brooks said.
“It’s been very disappointing for me to observe all of this,” Brooks said.
About the author:
Matthew Cardinale is the News Editor for The Atlanta Progressive News and is reachable at firstname.lastname@example.org.
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