Georgia high court declines to hear appeal or halt execution

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ATLANTA (AP) — Georgia's highest court on Friday declined to hear an appeal from a man scheduled to be put to death next week and also denied a request to halt his execution.

Ray Jefferson Cromartie, 52 is scheduled for a lethal injection Wednesday at the state prison in Jackson. He was sentenced to die for the April 1994 slaying of 50-year-old convenience store clerk Richard Slysz in Thomasville, near the Florida line.

Cromartie maintains his innocence, and his lawyers asked the Georgia Supreme Court for permission to appeal a lower court's rejection of a request for DNA testing and a request for a new trial. They also asked that his execution be stopped while that played out.

The high court rejected those requests. Cromartie still has other requests for relief pending in the courts.

"With the clock ticking, there is still time to prevent an unjust execution if the courts recognize Ray Cromartie's civil right to get the DNA evidence tested before his scheduled execution on October 30th," Cromartie attorney Shawn Nolan said in an emailed statement Friday.

Cromartie borrowed a handgun on April 7, 1994, entered the Madison Street Deli that night and shot clerk Dan Wilson in the face, gravely injuring him, a Georgia Supreme Court summary of the case says.

Wilson couldn't describe the person who shot him, and surveillance camera footage wasn't clear enough to conclusively identify the shooter.

A few days later, on April 10, Cromartie and Corey Clark asked Thaddeus Lucas to drive them to a different store to steal beer, the summary says. Lucas parked and the other two entered the Junior Food Store.

Cromartie shot Slysz twice in the head, the summary says. Unable to open the cash register, Cromartie and Clark fled after Cromartie grabbed two 12-packs of beer.

In both cases, Cromartie told others he had shot the clerks, the summary says.

Lucas and Clark testified against him at his trial in September 1997. A jury found Cromartie guilty of charges including malice murder and sentenced him to die.

Lucas and Clark pleaded guilty to lesser charges, served prison time and were released.

Cromartie's lawyers asked for DNA testing on evidence, including: shell casings from both shootings; clothing found near the first shooting site; a package of cigarettes found near Slysz's body; clothing samples from other potential shooters and Slysz.

Southern Judicial Circuit Senior Judge Frank Horkan last month found that it's not likely the DNA testing sought would lead to a different verdict. He also said Cromartie waited too long to ask for the testing.

Cromartie's lawyers on Tuesday filed a complaint in federal court saying the DNA testing could prove Cromartie didn't shoot Slysz. The complaint challenges the constitutionality of the Georgia law governing post-conviction DNA testing and the way the Georgia courts have applied it.

The law presents a quandary, his lawyers said. If he'd asked for testing earlier when DNA testing methods weren't as advanced, his lawyers argue, the sample could have been destroyed without producing meaningful results. But now, when more advanced methods are available, the courts say he waited too long.

They're asking a federal judge to declare the state law unconstitutional, to order the evidence released for DNA testing and to prohibit the state from executing Cromartie "until they can do so in a way that does not violate his rights."

Cromartie's lawyers have released letters from Slysz's daughter, Elizabeth Legette, saying the DNA testing should be done before Cromartie is executed.

The state argues that the DNA evidence sought couldn't prove Cromartie's innocence.

Cromartie's lawyers filed a petition Thursday in a state court challenging the constitutionality of his death sentence, saying his trial lawyers and first set of post-conviction attorneys were ineffective.

His trial attorneys failed to present evidence of a traumatic and abusive childhood and resulting mental health issues that could have made a difference in the sentencing phase of his trial, and his first post-conviction attorneys failed to raise that in post-conviction proceedings, the petition argues.

Cromartie's attorneys on Thursday asked a judge to recall the execution order, saying they hadn't received a certified copy of it as required. Lawyers for the state responded Friday that the court clerk had mailed the certified copy and noted that Cromartie's attorneys were alerted of the execution date before the order was even signed.

Cromartie's lawyers said Wednesday that he wouldn't file the customary clemency application with the State Board of Pardons and Paroles, the only authority in Georgia that can commute a death sentence. Cromartie maintains his innocence and cannot in good faith ask the board for a life sentence, his lawyers said.

Cromartie would be the third prisoner executed in Georgia this year. The state says it uses an injection of the sedative pentobarbital for executions.

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