There was an interesting, but sad, dialogue going on about the execution of a robber who murdered his victim. The execution took place Oct. 20. (Mark Howard McClain was put to death by lethal injection for the 1994 slaying of a pizza store manager during a robbery.)It was sad that the execution had to take place, but it was also sad that an innocent victim was killed during the commission of the crime.

Debate continues regarding the death penalty. The possibility of being executed should remain in Georgia law to add some threat to the perpetrator of a murder.But what is the difference to society or to the loved ones and family of the victim?

In Georgia, of course, the jury determines the punishment in a death penalty case. Aggravating circumstances must be found from the facts of the case in order for the jury to recommend an execution. Should aggravated circumstances be required? Why should we play around with whether the crime is heinous in order to impose a life for a life?

After five decades of practicing law, including being a prosecutor the first six years, I cringe at the daily taking of life by the drive-bys, the home invasions, the auto hijackings, the murder of unwanted infants. The list goes on and on!

I do not recommend the death penalty be easily imposed. There are too many questionable verdicts and thrown-away people in the non-murder cases as it is. Rape convictions and other scumbag crimes too often get the wrong person as the perp. Faulty identification and various pressures from victims, families, politicians and ADAs looking for another notch on the gun stock have sent many away for long terms they did not deserve. The recommendation here is that a pre-sentence hearing be imposed on all capital case convictions so that there can be a virtual certainty standard met by the prosecutors.

The 1977 case, Coker v. Georgia, was a jolt to the old school that wanted to execute anyone who committed a heinous crime such as rape without killing the victim. The case did not say that the state could not impose the death penalty for murder. There are exceptions such as being under 17 years old or being severely retarded. Both categories of exception, unfortunately, have been known to kill again.

We have lost sight of the admonitions of some our great leaders in the past who said that several guilty persons should go free rather than have one innocent person be convicted and imprisoned. Ben Franklin said it should be 10-to-1. One of the great English jurists who helped give us the common law for guidance even used a 100-to-1 ratio. These ideals have been long lost in the pressure to convict and jail everyone who offends our senses and who may have accidently committed a crime without intent—but is strongly prosecuted as if he did have the intent. The directory rules imposed on lawyers actually say that the district attorney shall refrain from prosecuting a case that is not based on probable cause. Sometimes the determination of probable cause is questionable, or at best, the opinion of a law enforcement officer with questionable ethics or an ADA with a cause to show he or she is boss! Haven't you seen magistrates who do not bother with the facts?

The Legislature can fix this. There would be no constitutional violation here. The virtual certainty rule would only apply to the sentencing phase of the trial and not to the innocence or guilt procedure. This could also save the state money down the road since it appears that it is only concerned about saving money and not justice. How much is 20 years in prison worth to an innocent man?

William R. Hurst

Atlanta