In yet another bizarre legal drama of death row brinksmanship, American style, the Supreme Court today upheld a 5th U.S. Circuit Court of Appeals stay of execution for Georgia's convicted Killer, Jack Howard Potts.
His head shaved to protest harsh prison conditions, Potts at one point had asked to die Tuesday morning, as scheduled, in Georgia's solid oak electric chair. The rendezvous would have earned him the ephemeral distinction of being the fourth American inmate to die on death row since Gary Gilmore stood before a 1977 Utah firing squad and said, "Let's do it."
But Potts, 35, who has become the latest death row symbol in the nation's ongoing capital punishment debate, changed his mind. He'd changed it before.
U.S. District Court Judge William C. O'Kelley granted the condemned inmate a stay on June 4 -- 10 hours before he was scheduled to die -- following his first appeal, only to have Potts change his mind two days later. fIn a letter to O'Kelley, Potts said he had requested the stay only to make his brother happy.
But the judge denied his second appeal last Thursday, ruling that Potts had voluntarily "relinquished" his appeal rights and asserting that "the consequences may be harsh [but] there must be an end to litigation." He ordered the July 1 execution to proceed, reportedly confiding to a retired colleague, "Potts really made a fool of me."
Milliard Farmer, 45, Georgia's flamboyant anti-death-penalty crusader, a blue-jeaned aristocrat who relishes dramatic courtroom run-ins with judges to keep death row clients from the executioner's hands, left his cluttered Peachtree Street office today to deliver the good news to Potts.
His defense team, specializing in death penalty cases in the South (more than half the nation's estimated 630 death row inmates are housed in Georgia, Florida and Texas alone), had appealed O'Kelley's ruling to the 5th Circuit in New Orleans.
Farmer argued that Potts' wavering reflected his psychological duress on death row: the constant pain from poor medical treatment of a .357 magnum bullet he took in the mouth during a shootout with police; his mother's insistance that her son die to end his suffering, and the remorse he felt for the 1975 murder of Roswell, Ga., mechanic Michael Priest, 25.
The 5th Circuit panel granted the stay Saturday at 12:35 p.m., but Georgia Attorney General Arthur Bolton dispatched a special petition to the Supreme Court via air courier that night requesting that it allow the execution to proceed.
"The people of Georgia are entitled to have the matter passed on by the highest court in the land before having it further delayed," Bolton said.
Farmer railed at Bolton's "bloodlust ," comparing the move to former Alabama governor George Wallace's stand in the schoolhouse door to prevent integration at the University of Alabama. "Like Wallace, he knows that what he's doing has nothing to do with the law," Farmer said. "He knows it will fail. It's nothing but politics -- playing into the hands of a vindictive, lynch mob mentality."
But Georgia's three-ring capital punishment circus played on. Talk show callers, apparently representing the overwhelming number of Georgians who favor the death penalty, according to a recent poll, urged the state "to fry 'im," agreeing not only with the embittered mother of the victim but with Pott's mother, too. While the press debated whether it was being used by a publicity hungry inmate through on-again, off-again appeals, it flocked to chronicle the teary, daily visits of Diane Nicholson, the killer's "long lost lover who stepped in to save him from the electric chair," in the words of one supermarket tabloid.
An Atlanta lawyer, meanwhile, petitioned the state public service commissioner to cut off power to the electric chair, claiming the prison failed to note in its application to the Georgia Power Co. that the electricity would be used to kill people. But prison officials weren't worried; there is a backup generator.
Through it all, state prison officials shrugged at Saturday's stay, continuing the execution countdown as they tested the 3,000-volt chair riveted to the floor 20 feet from Pott's "death watch" cell at the state prison near Jackson, Ga., 40 miles southeast of here.
There, the inmate remained locked up until the 1:45 p.m. Supreme Court ruling, receiving visitors, praying fingering his rosary and gobbling banana sandwiches on white bread, heavy on the mayonnaise, a local delicacy.
Within the hour, Potts was back among 44 other death row inmates.
A spokesman for the Supreme Court said the justices, minus Justice William J. Brennan Jr., who did not sit with the court Monday morning, voted 8 to 0 to deny Georgia's appeal.
The high court's ruling eliminated the likelihood that Georgia would have its first electrocution since 1964, when the electric chair was put in mothballs after ending the lives of 415 inmates since 1924.
"This shuts down the Georgia electric chair for an indefinite period of time," declared an elated Patsy Morris, Atlanta's American Civil Liberties Union director.
She said, however, that the Potts case has served to focus attention on the death row conditions of 97 inmates, including three women, who remain under death sentences in Georgia.
Last week, the Justice Department began a criminal investigation into the treatment of Georgia death row inmates, after the condemned prisoners went on a hunger strike, swamped Washington with letters and filed a class action suit protesting -- among other things -- that they must go barefoot year-around. All the while, the inmates were rallying behind Potts, urging him to live.
Six weeks ago, said Farmer, Potts had tried to warn outsiders that an employe at Reidsville state prison, where he was once housed, had died of tuberculosis. Last week, 600 of the 2,300 Reidsville inmates tested for TB showed signs of the disease.
But death penalty advocates scoffed at Farmer's claims, maintaining that the media circus obscured the life of violence Potts has lived.
Many towns in America have a Jack Potts, a boy who starts out stealing cars and graduates to armed robbery and killing.
For Potts, the third child born to a North Atlanta brick contractor and his wife, that life ultimately led to a broken teen-age marriage, a year in a state prison for juvenile offenders at 16 and, later, two terms in prison for forgery, armed robbery and aggravated assault before being released in 1975, three months before he murdered Michael Priest.
It was May 8, a warm spring day, and Potts was riding in a pickup with a girlfriend, Norma Blackwell, and Gene Snyder and Elaine Glaze.
They'd been drinking, and Snyder objected to Potts' erratic driving. Potts drew a chrome-plated, 25-caliber pistol and shot Snyder twice in the head, dumped him in a ditch and, covered with blood, knocked on the door of Michael Priest. There'd been a wreck, he told Preist's family, and the mechanic jumped up from a dinner of steak and beans to help him.
Moments later, according to trial testimony, Priest was begging for mercy -- "Oh my God, don't kill me, I have a wife and baby on the way." Potts told him there was no such thing as God, that he -- Jackie Potts -- determined whether Priest lived or died.
Then he shot him.
A Cobb County jury found Potts guilty of aggravated assault, kidnaping and armed robbery. And under a Georgia statute that permits capital punishment for aggravated circumstances surrounding a felony, the jury determined that Potts should die in the electric chair. The felony was the kidnaping; the aggravated circumstances, the murder of Priest.
Potts was led off to the Reidsville prison, where with the help of the Rev. Raymond Kulwicki -- the envy of other Georgia prison chaplains for his record of converting death row inmates to Catholicism -- Potts found the Lord.
Through religion, Potts claimed to have finally found peace and decided to die while still "in a state of grace." Last fall, he fired his lawyers, saying he couldn't take prison conditions any longer. He wanted to die. Many Catholics were upset, arguing that such a stance amounted to suicide.
Potts changed his mind.
He was scheduled to die June 5. But the day before, he renewed his appeal and O'Kelley granted a stay. Then, on June 6, he reounced that appeal and his stay was vacated. The July 1 execution date was set. Then came the latest stay.
Defense attorney Joe Nursey, a colleague of Farmer, and attorney Andrea Young, former U.N. ambassador Andrew Young's daughter, said the decision means that Jack Pott's appeals are just beginning.
"We don't feel Georgia state courts care anything about federal constitutional law," Nursey said. "You haven't been in court until you're in the federal courts."