Legal Digest
intellectually disabled; however, the court recognized
that the expansion of intellectually disabled to include other individuals who think, act, or behave “as
if” they are intellectually disabled did not apply in
this case, as Mr. Clayton offered no evidence for why
it should be expanded to include a neurocognitive
disorder caused by traumatic brain injury.
The U.S. Supreme Court denied his application
for a stay of execution, and Mr. Clayton was executed
on March 17, 2015.
Sentence of Life Without
Parole for a Juvenile Convicted
of Homicide Upheld
robbery and aggravated assault. When Deputy Daly
and the other officers approached the stopped vehicle, Mr. Bun grabbed a gun, stepped out of the car,
and fatally shot Deputy Daly twice in the abdomen.
Mr. Bun then shot at other officers as he fled into the
nearby woods.
At trial, Mr. Bun was found guilty and sentenced
to LWOP, plus an additional 70 years of imprisonment. His motion for a new trial was denied, and he
appealed, arguing that his sentence constituted cruel
and unusual punishment under both the federal and
Georgia constitutions and that his trial counsel provided ineffective assistance of counsel by not objecting to testimony of a former family court judge. He
cited Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 132 S. Ct. 2455 (2012), and Foster v. State,
754 S.E.2d 33 (Ga. 2014).
Cashena Hastie, MD
Ruling and Reasoning
Disclosures of financial or other potential conflicts of interest: None.
Fellow in Forensic Psychiatry
Richard L. Frierson, MD
Professor of Psychiatry and Vice Chair for Education
Director, Forensic Psychiatry Fellowship
University of South Carolina School of Medicine
Columbia, SC
The Georgia Supreme Court Held That a
Nonmandatory Sentence of a Juvenile to Life
Without Parole for Homicide Is Not Cruel
and Unusual Punishment and That the Code
Of Judicial Conduct Did Not Prohibit a
Former Judge From Testifying in the
Sentencing Phase
In Bun v. State, 769 S.E.2d 381 (Ga. 2015), the
defendant, Veasa Bun, appealed his life-withoutparole (LWOP) sentence arguing that it constituted
cruel and unusual punishment under both the federal and Georgia constitutions and that his trial
counsel provided ineffective assistance by not objecting to the testimony of a former juvenile judge who
had presided over Mr. Bun’s juvenile cases but who
was no longer acting in a judicial capacity at the time
of the instant case.
Facts of the Case
On July 20, 2011, Deputy Richard Daly and several other law enforcement officers pulled over a vehicle in which 17-year-old Mr. Bun was a passenger.
Mr. Bun had been identified as a passenger by another officer who knew that there was an outstanding
warrant for Mr. Bun’s arrest in connection with a
398
In a five-to-two decision, the Georgia Supreme
Court held that evidence was sufficient to support a
homicide conviction, a discretionary sentence of
LWOP on a juvenile for homicide was not cruel and
unusual punishment, and the code for judicial conduct did not prohibit the former judge from testifying in the sentencing phase.
The appropriate punishment for juvenile offenders has been an evolving area of law. In 2005 the U.S.
Supreme Court held in Roper that juvenile offenders
could not receive the death penalty. Five years later,
in Graham, the U.S. Supreme Court held that a juvenile offender who had not committed a homicide
could not be sentenced to LWOP. In 2012 in Miller,
the Supreme Court struck down mandatory sentences of LWOP for juveniles who had committed
homicide. Therefore, lower courts must use discretion when considering whether to impose a sentence
of LWOP on a juvenile offender who has committed
homicide, because mandatory LWOP sentences violate the Eighth Amendment’s ban on cruel and unusual punishment. Adolescents are biologically and
emotionally immature and are therefore less culpable
than adults for their actions. Therefore, they are also
less deserving of the most severe punishment. The
Supreme Court of Georgia denied Mr. Bun’s motion
for a new trial, stating that the U.S. Supreme Court’s
decisions in Roper, Graham, and Miller do not prevent juveniles who have committed homicide from
being sentenced to life imprisonment without the
The Journal of the American Academy of Psychiatry and the Law
Legal Digest
possibility of parole when the sentence was decided
with discretion that accounts for proportionality.
Mr. Bun also claimed that he was entitled to a new
trial because his defense attorney failed to object to
the testimony of Judge Tracy Graham Lawson, a
former family court judge who had presided over
some of Mr. Bun’s juvenile cases. She had testified
that Bun was a “menace to society” and that she was
convinced that he could not be rehabilitated. Mr.
Bun objected to the judge’s testimony, because he
thought it should not have been allowed under
Canon 2 of the Georgia Code of Judicial Conduct,
which stated that judges “shall avoid impropriety and
appearance of impropriety in all their activities and
should not testify voluntarily as character witnesses”
(Bun, p 384). The Supreme Court of Georgia explained that Judicial Code of Conduct applied to
officers “of a judicial system performing judicial
functions” (Bun, p 384). Therefore, it did not apply
in this case, because the judge was no longer a judge
or judicial candidate at the time of her testimony.
Dissent
The dissent argued that, although federal law allows discretionary LWOP sentences for juvenile offenders who commit homicide, federal law does not
stop the states from disallowing such sentences for
juvenile offenders as a matter of state constitutional
law. The dissent argued that the Georgia Constitution “affords our citizens broader rights than the federal constitution” (Bun, p 386). Because juveniles are
biologically and emotionally immature, they should
have the possibility of rehabilitation and redemption
for their crimes. There is nothing lost by leaving the
possibility of redemption and rehabilitation open to
juveniles, and eligibility for parole does not mean a
person will be automatically released, it simply
means there will be a consideration for parole by the
State Board of Pardons and Paroles. In Georgia, a
person could still spend his natural life in prison although eligible for parole. In this case, Mr. Bun was
given LWOP plus 70 years. This sentence constitutes
cruel and unusual punishment and it indicates that
the justice system has given up hope of rehabilitating
Mr. Bun. This position is contradictory to the ruling
in Roper that juvenile offenders cannot with reliability be classified among the worst offenders.
In addition the dissent argued that the defense
counsel was deficient by failing to object to the tes-
timony of Judge Lawson at the sentencing hearing.
This deficiency was prejudicial to Mr. Bun. She was
allowed to testify “under the guise of her professional
status” and to give her personal opinions about Mr.
Bun while admitting that she was not impartial
where Mr. Bun was concerned. Defense counsel’s
failure to object to this testimony constitutes ineffective assistance; therefore, Mr. Bun should be entitled
to relief.
Discussion
For the past decade the punishment of juvenile
offenders has been an evolving area of law on both
the federal and the state levels, because juveniles are
viewed as biologically and emotionally immature
and therefore less culpable than adults for their actions. As the law stands under Miller, lower courts are
allowed to exercise discretion when considering imposing LWOP on a juvenile who has committed homicide. Georgia’s law in regard to punishment for
juveniles who commit homicide has also evolved. In
April of 2009 the General Assembly amended the
Official Code of Georgia Annotated (OCGA) to
state that life in prison without the possibility of
parole was one of the punishments for murder. At
that time, there was nothing in the legislative history
to indicate that OCGA considered the impact of this
legislation on juveniles in 2009. Before April 2009,
the sentence of LWOP was not a sentencing option
for any defendant, regardless of his age, in a noncapital murder case.
It is clear that under Miller, federal law allows for
juveniles who commit homicide to be sentenced to
LWOP, but it also allows judicial discretion to be
used in applying this sentence to juveniles in state
courts. The laws and policies that set the appropriate
punishment for juveniles who are inherently immature, more impulsive, and more vulnerable are evolving. In this case, the state of Georgia used its discretion when sentencing a juvenile convicted of
homicide to LWOP, and the sentence was not in
violation of the Eighth Amendment or the Georgia
Constitution.
Although the testimony of the family court judge
who had presided over proceedings involving the defendant was not a violation of Canon 2 of the Georgia Code of Judicial Conduct, her testimony was
highly prejudicial to Mr. Bun. The admission of her
testimony may be a ground for future appeal.
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