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Fortson v. State

Causing a defendant to unnecessarily use a peremptory strike on a juror that should have been excused for cause is per se harmful error.

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A jury in Madison County convicted Tracy Lea Fortson of malice murder and related crimes for the killing of Douglas Benton.1 Because we find that Fortson was denied the effective assistance of counsel when her attorney unnecessarily used a peremptory strike on a juror that had already been excused for cause by the trial court, we reverse and remand for a new trial. 1. The evidence presented at trial shows that on June 17, 2000, neighbors of Benton became concerned because they had not seen him since June 4, 2000. The neighbors alerted the police and informed them that they had seen Fortson at the victim’s home on June 4. Fortson admitted to police that she had been present at the victim’s home on that day.

Meanwhile, a farm manager in nearby Oglethorpe County found a suspicious cattle trough on his farm that had been painted camouflage and filled with cement. The farm manager contacted the police, who found the victim wrapped in shower curtains and entombed in the trough. Police later determined that he had been killed by a single .22 caliber bullet wound to the head at close range and multiple stab wounds to the chest. The farm manager was familiar with Fortson because she used the farm to hunt turkey and deer.

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