Justice waits in Walker County, Ga., as killers grow old on death row

Justice waits in Walker County, Ga., as killers grow old on death row

August 17th, 2014 by Tyler Jett in Local Regional News

Eddie Sizemore holds a photograph of the Chickamauga, Ga., grocery store where his father, Roy Sizemore, was killed during a robbery 41 years ago. Wilburn Wiley Dobbs was convicted of the crime in 1974.

Photo by Doug Strickland/Times Free Press.

L to R: Jonathen Jarrells, Jamie Ray Ward, Wilburn Dobbs

Eddie Sizemore found his father in the back of the family's Chickamauga grocery store, beaten and shot, blood leaking from his chest.

"I reached down and grabbed his neck," Sizemore said, "but he was gone."

Forty-one years later, Sizemore is still waiting for justice, the kind he believes will only come with the death of his father's killer. Sizemore once envisioned doctors strapping that man onto a gurney and pumping him with lethal drugs.

Now, at age 63, he doubts that will ever happen.

It's not that the identity of his father's killer is a mystery. A few days after the grocery store shooting, police arrested Wilburn Wiley Dobbs and charged him with murdering Roy Lee Sizemore Sr. In May 1974, a jury sentenced him to the death penalty, plus life in prison for other charges. When Dobbs appealed the case, no higher court doubted his guilt.

But in 1998, the 11th U.S. Circuit Court of Appeals awarded Dobbs a new sentencing hearing, saying that his attorney didn't even try to plead for his life. A federal judge sent the case back to Walker County, Ga., where a local judge and the district attorney were supposed to hold a sentencing hearing "within a reasonable time."

It's been 16 years. Dobbs' case is still pending. Eddie Sizemore is still waiting for that hearing. Dobbs, who has sat on death row longer than any other inmate in Georgia, is waiting, too.

He isn't alone. Two other convicted murderers are waiting for new sentencing hearings in Walker County. So are their families. So are their victims' families.

Jamie Ray Ward's case has sat in Walker County purgatory for four years; Jonathen Jarrells' for 23 years.

Lookout Mountain Judicial Circuit District Attorney Herbert "Buzz" Franklin has failed to bring these cases to trials the past two decades. The judges handling these cases, likewise, have allowed them to linger.

Franklin says these cases haven't played out for several reasons. He blames the defense attorneys for not pushing them along. He blames a nonprofit law office for not telling him who was representing one of the defendants. He says he had to wait for the Georgia Supreme Court to make a ruling on a similar case.

But legal experts say Franklin should have pushed the cases forward on his own. The judges who are supposed to hear the cases could have done that, too.

Russell Covey, a Georgia State University law professor, is unsure whether the delays violate Dobbs', Jarrells' and Ward's constitutional right to a speedy trial. That would depend on whether the defendants tried to push the cases forward on their own and whether a higher court judge believes they have been hurt by the delays.

Either way, Covey said he does not know of other cases with decades of delays anywhere else in Georgia. He said district attorneys and local judges can suffer from a "lack of enthusiasm" when defendants are awarded new sentencing hearings. They're already in prison. What's the rush?

<p dir="ltr" style="line-height: 1.15; margin-top: 0pt; margin-bottom: 0pt;">Even considering all this, Covey said, "the amount of time that these cases have been pending is unusual and outrageous."</p>After waiting 16 years for a second trial about the death of his father, Eddie Sizemore agrees.

Taxpayer-funded attorneys

U.S. District Court Judge Harold Murphy sent Dobbs' case back to Walker County in 1998, court records show, but nothing else happened for two years. Then, in November 2000, Superior Court Judge Kristina Cook Graham assigned private attorneys Michael McIntyre and Jack Martin to represent Dobbs in a new hearing to determine whether he would again get the death penalty.

McIntyre and Martin were familiar with Dobbs' case and previously represented him in federal court.

When a defendant in Georgia is facing capital punishment but can't afford a lawyer, the judge will choose whether to appoint private attorneys or public defenders who specialize in death penalty cases. The public defenders are funded by Georgia taxpayers, as well as by a small amount of court costs that defendants paid in every criminal case in Georgia.

Private attorneys in this type of case, on the other hand, are only funded by local taxpayers. As part of Graham's court order, Walker County citizens are paying McIntyre and Martin $100 an hour for time spent on the Dobbs case.

Franklin said he had nothing to do with Martin and McIntyre's appointment.

"In any case," Franklin said, "that would be decided by the judge."

Through June 2012, court records show, the county has paid McIntyre about $61,000 and Martin about $6,000 for this case. Neither lawyer returned calls seeking comment. Graham also did not return multiple calls for this article.

But, from the bench, she has said that she wants this sentencing hearing to happen soon.

"I'm certain there is a great deal of work and research that needs to be done," Graham told Franklin and the defense attorneys in 2002, "but I do want to address the case in a timely fashion and I want to get this resolved."

Then, in a pretrial hearing in 2008, Graham said, "It's been quite a while since we had a hearing on this matter. I apologize to everyone for that. All the lawyers have a busy schedule. I have a busy schedule. Somehow or another, I haven't got it scheduled for a while. We're trying to correct that situation."

Four years later, the defense attorneys were supposed to give Franklin a copy of Dobbs' Georgia Department of Corrections file as part of two pretrial motions. In both motions, McIntyre and Martin argued that years of delay in Dobbs' case violated his right to a speedy trial.

The attorneys told Franklin and Graham they would send Dobbs' file to the district attorney by the end of September 2012, according to court records. Then they said they would send it by the beginning of February 2013. Then by the middle of that month. Then by March 8, 2013.

After that, the attorneys stopped updating Franklin about when they would give him this file. Finally, on June 12 of this year, Franklin filed a motion asking Graham to schedule a new hearing since Martin and McIntyre had not communicated with him in more than a year.

"Rather ironically," Franklin said earlier this month, "the defense has taken a year and a half to get off the ground, even though they said they had been denied a speedy trial."

But Michael Mears, the head of the Multi-County Public Defenders Office that represented indigent defendants in capital cases throughout the 1990s and early 2000s, said a district attorney can't blame the defense in this type of case. The prosecutor has to move the case forward because the defense is always going to delay any hearings.

One more day of delays means one more day their client stays alive.

"If people are awaiting death and are waiting for something in the case," Mears said, "there is no great incentive to push it forward."

Eddie Sizemore, meanwhile, believes Dobbs' attorneys will continue to successfully delay the hearing because Graham is not motivated to set a date for the sentencing hearing.

"She doesn't want to hear it," Sizemore said. "She knows he's guilty. He's guilty of what he's done. ... There's no telling when they'll have that hearing. He'll probably die before they have that hearing."

A bailiff's mistake

On Aug. 17, 1989, Jamie Ray Ward walked into the home of 23-year-old Nikia Kay Gilbreath. For weeks, court records show, he planned to abduct her.

Ward had drilled a well on Gilbreath's property on Dicks Creek Road in LaFayette earlier in the year. While there, he caught a glimpse of Gilbreath.

Then, in his home without walls, running water or electricity, surrounded by thousands of dollars' worth of lingerie, boxes of pornography and a collection of newspaper clippings about rapes and murders, Ward scribbled directions to Gilbreath's house in a notebook. Next to the directions, he wrote a short note: "Fine looking."

Ward kept many names in that book. He had already been arrested at least five times for assaulting, stalking and trying to lure other women into private places.

This time, according to court records, Ward sneaked into Gilbreath's house and kidnapped her, leaving behind a 22-month-old daughter. He broke Gilbreath's ribs and stuffed wads of paper down her throat, suffocating her. Then he dumped her body in the woods. She was five months' pregnant.

Police didn't realize Ward was the culprit until December 1989, after he had been arrested for stalking and raping another woman. Investigators found similarities between how Ward committed his crime against that victim and how Gilbreath's killer had treated her.

Earlier this year, the Georgia Department of Corrections denied a Times Free Press request to interview Dobbs, Jarrells and Ward at Georgia State Diagnostic and Classification Prison. But during a police interrogation in December 1989, Ward told investigators he didn't know whether he killed Gilbreath.

"I might have and I might not have," he said. "I'm just not sure. I told you, I black out when I take pills and drink liquor. ... I've been a liar all my life. I need some help. If I done it, I didn't mean for it to happen and I'm sorry."

In July 1991, a jury convicted Ward of kidnapping with bodily injury, feticide and murder. He received two life sentences and the death penalty.

But in January 2010, a federal appeals court reversed Ward's capital punishment because a bailiff answered a juror's question during the sentencing phase of the original trial. The bailiff told the jury that they could not sentence Ward to life without parole: They could either sentence him to death or to a life sentence with the possibility of parole. According to Georgia law, only a judge could answer that question.

In June 2010, a federal judge ordered that the case be returned to Walker County, where Franklin would again try to convince a jury that Ward deserves to be put to death.

In accordance with prescribed court procedures, Superior Court Judge Jon "Bo" Wood was supposed to alert the Office of the Georgia Capital Defenders, which replaced the Multi-County Public Defenders Office in representing clients who face the death penalty.

Instead, Ward wrote a motion from prison asking Wood to set a court date. Lookout Mountain Judicial Circuit Public Defender David Dunn -- who does not represent defendants facing the death penalty -- learned that Ward's case was still sitting untouched and told the Capital Defenders Office about it in September 2011, more than a year after the federal judge sent the case back to Walker County.

Three years later, the case is still pending.

Wood did not return multiple calls seeking comment. Jerry Word, director of Georgia Capital Defenders, does not know when the case will go to trial. He said his attorneys have had to do a lot of work to prepare for the sentencing hearing, which could last several weeks.

"It's pretty extreme," Word said. "We've got roughly 20 years of catching up to do."

Linda Tucker, the victim's mother, said she is more upset with the federal court's decision to overturn Ward's original death sentence than she is with Wood's failure to starts the process of finding Ward an attorney or Franklin's failure to push the case forward. Tucker doesn't want to live out her daughter's death in court once again.

She thought the sentencing hearing would occur this summer, but she isn't following Ward's case in detail. Tucker said she has tried to focus on other things. She can tell how long it's been when she looks at Gilbreath's other daughter.

She was a toddler when Ward murdered Gilbreath. Now that girl is 26 -- three years older than her mother had been.

"I stopped wondering," Tucker said of Ward's case earlier this month. "We've been forced to move on with our lives before. There's no point in sitting and waiting."

She sees only one reprieve from this case:

"Maybe the good Lord will come back and get us all."

Twenty three years and counting

In August 1987, Jonathen Jarrells went to the Lyerly, Ga., home of Gertie and Lorraine Elrod. He was staying with his brother across the street, a nd he told the elderly sisters that he had been locked out.

Gertie, 71, and Loraine, 75, let him in.

"What happened after that," Jim Franklin, a former prosecutor and the brother of the current district attorney, told a jury, "can only be described as a brutal, vicious assault."

Jarrells stabbed the sisters with a pair of scissors, tied them to a bed and beat them with an iron until it broke. He crushed Gertie's skull. Blood soaked the sheets and splattered the ceiling.

Jarrells then took two wristwatches, a purse and a $160 check. Gertie died, but Lorraine survived.

"He warned us," she testified in March 1988. "If we screamed, he'd have to kill us."

A jury convicted Jarrells of murder, armed robbery and aggravated assault. They sentenced him to the death penalty on one count and life in prison on another.

Four months later, the Georgia Legislature enacted a law banning capital punishment for defendants with intellectual disabilities. Defendants sentenced before this new law could appeal their death sentences, arguing that they are mentally retarded.

During an appeal in May 1991, Dr. George Baroff wrote in an affidavit that Jarrells is intellectually disabled. Baroff, a psychologist, said Jarrells has an IQ of 69, putting his intellectual level in the lowest 2 percent of adults.

Baroff said Jarrells functioned at the level of a 9-year-old, repeated first grade in West Virginia twice, repeated third grade twice and didn't know how to read a map.

"When asked how many weeks there are in a year, Mr. Jarrells responded that he did not know, but if he had to guess he would say 30," Baroff wrote in the affidavit. "He did not know the meaning of the word 'enormous,' which he defined as 'somebody happy.'"

A Superior Court judge in Butts County, where Jarrells was lodged on death row, then awarded him a jury trial to determine whether he was, in fact, intellectually disabled. The judge transferred the case back to Walker County.

Twenty three years later, the case is still up in the air, and Jarrells remains on death row. From prison, people wrote letters to Judge Bo Wood on Jarrells' behalf in 2000 and in 2006.

"Jonathan Jarrells is asking for the Court's help to get his case and himself back to Walker County for the hearing," the unnamed representative wrote in the first letter.

"(Jarrells) would like to know when this hearing will be," a representative wrote six years later.

Superior Court Judge Ralph Van Pelt Jr., who was district attorney from 1989 to 1996, declined to comment on why he didn't bring the Jarrells case back for trial during his last six years in office.

"I really don't need to discuss details," he said. "I am related by marriage to some of the people involved, some of the Elrods."

As for the next 17 years, Buzz Franklin said he couldn't push the case forward because he didn't know who represented Jarrells. About seven years ago, he said, he began calling the Georgia Resource Center, a nonprofit that helps death row inmates find attorneys.

Franklin said he thought the center could tell him which defense attorney he needed to contact about this case. He said they didn't call him back "for years."

Brian Kammer, executive director of the Georgia Resource Center, took charge of the nonprofit in 2009 and couldn't comment on anything that happened earlier. But the district attorney is not at the mercy of the GRC.

"Even if Mr. Franklin did call and was not called back, nothing stopped him (or his predecessors after 1991) from going to the trial court judge in Chattooga County [or Walker County] and asking to have the case calendered [sic]," Kammer wrote in an email.

Franklin also said he didn't push the case forward because he was waiting on a U.S. Court of Appeals ruling on a similar case, one that had been playing out in several different courts for more than a decade. Georgia law dictates that, if a death row defendant says he or she is mentally retarded, lawyers for that defendant must prove it beyond a reasonable doubt.

Attorneys for death row defendant Warren Lee Hill challenged this law more than 10 years ago. They said Hill should only have to prove that he is mentally retarded "by a preponderance of evidence." The Georgia Supreme Court ruled against Hill in 2003. So did a U.S. District Court in 2007. In 2008, Hill's attorneys filed the appeal again.

The 11th U.S. Circuit Court of Appeals affirmed the other court decisions in 2011. Franklin said he had been waiting for that ruling, in case a Walker County jury ruled against Jarrells and his attorneys filed another appeal, based on that Hill case.

But, Franklin added, that final ruling in the Hill case does not explain why Jarrells' case has sat in Walker County for all 17 years that he has been the lead prosecutor.

Franklin said he does not know why Jarrells did not have an attorney until recently. He also doesn't know who is supposed to alert public defenders whenever higher court judges send death penalty cases back to the Lookout Mountain Judicial Circuit.

"I've never researched that," Franklin said. "Hopefully we don't have any more of these coming back."

Mears, the former head of the Multi-County Public Defender Office, said the judge is supposed to assign Jarrells an attorney.

"A lot of district attorneys shy away from it," he said. "It's a lot of work. Quite frankly, it's the responsibility of the judge. ... It starts with the judge. The case is on his docket. He's got to stay on top of it. Now, some of these cases fall through the cracks."

Only four documents have been entered into Jarrells' Walker County court file since the Butts County judge sent the case back in 1991, and none of those documents indicate which judge is supposed to handle the case. But Kammer, the GRC director, has a 2012 order from Superior Court Judge Brian House scheduling a status hearing to determine how far away the case is from going to trial.

House's order should be in Jarrells' file, but it is not. Although Jarrells murdered Gertie Elrod in Chattooga County, the case was transferred to Walker County. House's order, however, was stamped and filed in Chattooga County.

Franklin said he thinks Jarrells' file is in Chattooga County. But the clerk of criminal court, Doris Allen, said Jarrells' case has not been in Chattooga County since 1987. Carter Brown, the clerk of court in Walker County, said his office has never seen House's order.

House, who became a Lookout Mountain Judicial Circuit superior court judge in 2009, said he scheduled the order after Jarrells' case file ended up on his desk. Two years later, he says he doesn't know who gave him the file or which judge handled the case before him.

Franklin said he doesn't know which judge was supposed to handle the case in the 18 years before House joined the circuit, either. Regardless, during that 2012 status hearing, the Georgia Capital Defenders became Jarrells' attorneys for the first time, 21 years after the case had been transferred back to Walker County.

Franklin said House will be the judge going forward, but House said that isn't necessarily true. He doesn't know whether he will oversee the case in the future.

"It's up to the district attorney to proceed with it," House said. "Right now, I'm not on it. I don't know where it's at, really."

Contact staff writer Tyler Jett at tjett@timesfreepress.com or at 423-757-6476.