Secretive Georgia Clemency Board Suspends Execution After Its Conflicts of Interest Are Exposed

On the same day the state of Georgia issued a death warrant for Stacey Ian Humphreys, setting his execution for December 17, Gov. Brian Kemp announced his latest appointment to the Board of Pardons and Parole, the five-member body that would ultimately decide whether Humphreys would live or die.

The new member was Kim McCoy, previously a victims’ advocate at the Cobb County District Attorney’s Office. As the head of the Victim Witness Unit for 25 years, she offered dedicated support to victims’ family members “in capital cases and select high-profile cases,” according to her official bio.

One of those cases was Humphreys’s.

Humphreys was convicted and sentenced to death in 2007 for the notorious double murder of 21-year-old Lori Brown and 33-year-old Cyndi Williams. The two women were killed northwest of Atlanta; the shocking crime generated so much pretrial publicity that Humphreys’s trial was moved from Cobb County to Glynn County, nearly 300 miles away.

McCoy provided logistical and moral support to the victims’ families throughout the monthlong trial. Members of Humphreys’s defense team would later recall in affidavits that McCoy was extremely protective of them, blocking the legal team’s efforts to introduce themselves. “She was a pitbull,” one said.

The families were grateful for McCoy’s support. In a profile published in McCoy’s alma mater magazine the year after the trial, they praised her care and compassion. “Sometimes you see people who are tailor-made for a specific job,” one said. McCoy was that person.

But her appointment to the pardon board on December 1 was another matter. Where Humphreys’s case was concerned, McCoy had a glaring conflict of interest. Although parole boards are often stacked with former prosecutors and law enforcement officials, making many clemency decisions little more than a rubber stamp, McCoy was a member of the very team that sent Humphreys to death row — one with an especially deep connection to his victims. As the lawyers would later write in a court filing, “it is hard to imagine a greater conflict of interest in a clemency case.”

McCoy was not the only board member with a connection to Humphreys’s case. Vice Chair Wayne Bennett was the Glynn County sheriff at the time of the trial, tasked with overseeing security and transportation for the sequestered jury — as well as Humphreys himself. To Humphreys’s attorneys, Bennett’s proximity to the victims, jurors, and defendant throughout the trial was too close for comfort. Under the board’s ethics rules, members are obligated to avoid even the appearance of bias. It was obvious to the lawyers that both McCoy and Bennett should recuse themselves from the clemency hearing. Yet there was no sign they planned to to so.

On December 4, Assistant Federal Defender Nathan Potek emailed the board’s legal counsel, La’Quanda Smith. “It has come to our attention that two of the current Board members, Mr. Bennett and Ms. McCoy, have conflicts in Mr Humphreys’ case arising from their respective roles at his trial,” he wrote. “Could you please let me know how the Board plans to address this issue and ensure that Mr. Humphreys has five conflict-free Board members to consider his clemency application?”

Smith wrote back five days later. “Mr. Bennett and Ms. McCoy were duly appointed to the Board by Governor Kemp,” she said. “As it is currently constituted, this Board plans to give due consideration to any clemency request made by Mr. Humphreys.”

In other words, the board planned to move forward with McCoy and Bennett’s participation.

Georgia’s pardon and parole board is uniquely powerful. While many death penalty states leave it to the governor to be the last word on clemency, in Georgia, the board acts alone. It also has the power to grant stays of execution, something ordinarily done by the courts. And while some states open clemency hearings to the public, Georgia’s board members make decisions behind closed doors, with their votes classified as “confidential state secrets.”

With the execution less than a week away, Humphreys’s legal team filed an emergency motion in Fulton County Superior Court. It asked the court to direct McCoy and Bennett to recuse themselves and to order the board to grant a 90-day stay to allow time for two replacements. They also asked the court to block the Department of Corrections from executing their client until his clemency appeal had been considered by “a five member board free from conflict.” If a judge did not intervene, they wrote, “Mr. Humphreys’s final request for mercy — his last chance to have his case heard — will be ruled upon by two people predisposed to vote against him.”

A judge scheduled a hearing in Atlanta for December 15, the eve of Humphreys’s clemency hearing. That morning, the Georgia Attorney General’s Office filed a response to the emergency motion. McCoy would “abstain” from voting, it said. But it denied that Bennett should do the same. “The allegations concerning him do not come close to constituting a conflict of interest,” the state lawyers wrote.

The hearing was still an hour away when lawyers on both sides learned that the board had temporarily suspended the execution. Its decision was delivered via paper copy, complete with a gold seal. The board did not give a reason for its decision. Nor did anyone — including the judge — know how long the stay of execution would remain in place. “I don’t have any information as to how long the suspension will last,” the board’s legal counsel told the judge. In Georgia, execution warrants are valid for a week. Humphreys could be killed anytime between noon on December 17 and noon on Christmas Eve.

This was not the first time Humphreys’s case had raised concerns about bias.

His death sentence was rooted in an ugly confrontation between jurors at his trial. As members of the jury later told Humphreys’s legal team, jurors had initially decided to vote to impose a sentence of life without parole. But one woman instead voted for death, leaving the jury split 11 to 1. The holdout juror “snapped,” as one person put it, screaming and throwing photos of the victims’ bodies at the others. When the forewoman notified the court that the jury was unable to reach a unanimous decision, the judge instructed them to keep deliberating.

According to the forewoman, she and the other jurors got the mistaken impression that they had to unanimously vote on a sentence or Humphreys would walk free. They changed their votes to death. “I cried the entire time,” she said.

The holdout juror had also revealed during the trial deliberations that she’d been a victim of violent crime. A man had broken into her apartment and attacked her — a fact that she withheld during jury selection. While she said during voir dire that she escaped before the man entered, she told fellow jurors that the intruder actually attacked her in her bed. The juror’s actions amounted to “extreme misconduct,” Justice Sonia Sotomayor wrote after the U.S. Supreme Court refused to consider Humphreys’s case. In a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, Sotomayor wrote that the juror “appears to have singlehandedly changed the verdict from life without parole to death.”

In their motion, Humphreys’s lawyers explained that they planned to discuss the juror misconduct at the clemency hearing. The clash between jurors had escalated to the point where it became violent: One juror punched a wall. This loss of control implicated Bennett, the former sheriff, who had been in charge of security — and whose experience would inevitably color his view of this evidence. At the hearing in Atlanta, where he testified via Zoom, Bennett said he’d only just learned about the episode. “The trial is more important for us to control,” he said. His participation in the trial “was minimal at best.”

McCoy also testified via Zoom. She said that she’d decided to abstain the night before. But it was not exactly clear what this meant. The state’s brief suggested that McCoy would not participate in the hearing apart from voting to abstain. But Smith, the board’s lawyer, said that McCoy would also be able to ask questions — an opportunity to influence the clemency discussion. Neither option fulfilled her ethical and legal obligations, Jessica Cino, a lawyer with the firm Krevolin & Horst who is representing Humphreys, told the judge. “Abstention does not fix the problem.”

In fact, it put Humphreys at a distinct disadvantage, since he needed three votes for clemency to avoid execution. “A vote to abstain is effectively the same exact thing as a vote to deny, from Mr. Humphreys’s perspective, correct?” Cino’s colleague asked Smith when she took the stand. “Correct,” she replied.

Fulton County Judge Robert McBurney clearly grasped the problem with McCoy, whose conflicts “kind of hit you in the face,” as he put it. But the solution to the larger problem was less obvious. While the attorney general’s office argued that the board did not necessarily need five members to preside over a clemency hearing, Georgia law said otherwise. And Smith testified that she’d never seen such a hearing proceed with fewer than five board members.

It was unclear by the end of the hearing how or when McBurney would rule. Humphreys’s attorneys urged him to impose a temporary restraining order to prevent the board from moving forward with a rescheduled clemency hearing and execution date. After all, the board “could unsuspend [the execution] the minute we walk out of this courtroom,” one lawyer said. This would immediately restart the clock.

Although Smith had said that the board “would provide at least 24 hours’ notice” before a new clemency hearing, this was not reassuring. Humphreys’s legal team, who only learned of the warrant on December 1, had already scrambled to get witnesses organized in time for the original clemency hearing. “It is right before Christmas which has made things incredibly difficult,” one lawyer said.

In a statement to The Intercept, Humphreys’s attorneys said that the situation remains tenuous. “While we are grateful that the Parole Board has decided to press pause,” they wrote, the suspension remains temporary. And it does not resolve “the serious ethical and legal deficiencies we raised in court.”

Meanwhile, the board’s director of communications replied to an email from The Intercept. “The board is waiting on a decision by the court,” he wrote. Asked if it was still possible for the execution to happen before Christmas Eve, he did not answer.