Alabama

Alabama

Defendant Seeks Supreme Court Review of Prosecutorial Ghostwriting, A Widespread Practice in Capital Cases

Doyle Lee Hamm (pictured), an Alabama death row prisoner, has asked the United States Supreme Court to consider his case after Alabama's state and federal appellate courts upheld an order in which the trial court rejected his appeal by adopting word-for-word an 89-page order written by the state attorney general's office. In a process The Marshall Project's Andrew Cohen described as "a sham," the court dismissed Hamm's appeal one business day after receiving the prosecution's proposed order, without so much as removing the word "proposed" from the title of the order. In 1987, Hamm's jury had taken only 45 minutes to sentence him to death after his lawyer presented a 19-minute case for life that involved just two witnesses—Hamm’s sister and a bailiff. Twelve years later, Hamm’s post-conviction lawyers argued that he had received ineffective assistance of counsel in that penalty hearing and presented the court with extensive mitigating evidence that his trial lawyer had never investigated. This evidence included a childhood diagnosis of borderline mental retardation, school records reflecting Hamm's intellectual deficits, and evidence of seizures, head injuries, and drug and alcohol abuse. Cohen reports that the jury never heard that Hamm was "a barely literate, brain-damaged man with little impulse control, someone who might have been perceived as having diminished criminal responsibility." Yet the attorney general's proposed order, signed by the judge, rejected this evidence as merely "cumulative" of the sparse case for life that had been presented at trial. Cohen reports that the practice of judges adopting opinions or orders written by prosecutors, often without making any substantive changes or even correcting typos, is surprisingly widespread in capital cases. In addition to Alabama, similar "ghostwritten" orders have been documented in states such as Georgia, Kentucky, Louisiana, Ohio, Pennsylvania, South Carolina, and Texas. In one Ohio case, a judge was sanctioned for violating the judicial code of conduct and an inmate's death sentence was vacated after the judge drafted an opinion with prosecutors, but in Hamm's case and many others, opinions written by prosecutors and signed by judges have been upheld in state courts and considered reasonable determinations of fact to which courts must defer in later federal proceedings challenging the constitutionality of capital convictions and death sentences. The U.S. Supreme Court has requested that it be provided the full record of Hamm's case and is scheduled to confer about the case on September 26. It could issue an order as early as October 3, the first Monday of its Fall Term, on whether it will hear Hamm's appeal.

Bo Cochran, Acquitted in 1997 After 19 Years on Alabama's Death Row, Dies at 73

James Willie "Bo" Cochran, who spent 19 years on Alabama's death row for a killing he did not commit, has died at age 73. His lawyer, Richard Jaffe, said that Mr. Cochran and his case "are reasons why the death penalty does not work. He did not kill anyone, was wrongfully convicted and found innocent because he had lawyers that took up his cause."  Mr. Cochran, who is black, was found guilty and sentenced to death for the murder of a white grocery store clerk. His jury, which was composed of 11 white and one black jurors, had been told that the victim had followed Cochran out of the store after a robbery and that, after police had arrived on the scene, Cochran shot the clerk, leaving his body under a trailer in a nearby mobile home. There were no eyewitnesses to the actual murder. Cochran was arrested nearby with a gun that had not been fired. Cochran won a new trial after proving that prosecutors unconstitutionally removed black jurors from his case on the basis of race. He presented testimony from former prosecutors that the DA's office had a pattern of striking black jurors, had a philosophy that prospective black jurors "were anti-police, anti-establishment and should not be left on juries, if at all possible,” and that race was a factor in these strikes, "particularly where you had a white victim and a black defendant․" On retrial, Cochran was acquitted after presenting evidence that the victim had been accidentally shot by two officers responding to the robbery, who then panicked and moved the body under the trailer, where it was discovered by other officers. After Cochran's acquittal, he and Jaffe made frequent appearances to talk about the case. Jaffe described Cochran as "never bitter, always grateful." He called Cochran's life "a story of redemption and forgiveness," exemplifying the lesson that "We can be forgiving, no matter what happens to us. He truly touched a lot of lives. We loved Bo. He'll be missed." 

U.S. Supreme Court Orders Reconsideration of Three Cases in Light of Jury Selection Decision

The U.S. Supreme Court granted writs of certiorari in three jury discrimination cases on June 20, vacating each of them and directing state courts in Mississippi, Alabama, and Louisiana to reconsider the issue in light of the Court's recent decision in Foster v. Chatman. Two of the petitioners, Curtis Flowers of Mississippi and Christopher Floyd of Alabama, are currently on death row. The third, Jabari Williams, was convicted in Louisiana of second-degree murder. Earlier this year, the Supreme Court granted Timothy Foster a new trial because prosecutors illegally excluded blacks from his jury. Flowers, Floyd, and Williams all raised issues of racial discrimination in jury selection that were rebuffed in the state courts. As in Foster's case, the prosecutor's notes in Floyd reflect race-conscious jury strikes. Floyd's prosecutor marked African American potential jurors with a "B" on its list of jurors to remove, then struck 10 of 11 black prospective jurors. Flowers has been tried six times. His first two convictions were overturned because of prosecutorial misconduct, and his third as a result of racial bias in jury selection. His fourth trial ended in a mistrial and his fifth trial resulted in a hung jury. At his most recent trial, eleven white jurors and one black juror convicted him after just 30 minutes of deliberation. The Equal Justice Initiative, which represents Floyd, released a statement saying, "Racial bias has been a longstanding problem in Alabama, where more than two dozen cases have been reversed after courts found that prosecutors engaged in intentional racial discrimination during jury selection." EJI Executive Director, Bryan Stevenson, said racial bias in jury selection “undermines the integrity of the criminal justice system.” He told the Montgomery Advertiser, "What we’ve found is regardless of the race of the defendant, a lot of prosecutors appear not to trust black people in juries, which is illegal and unconstitutional.”

Supreme Court To Hear Texas Death Penalty Cases Dealing with Racial Bias, Intellectual Disability

On June 6, the U.S. Supreme Court granted writs of certiorari in two Texas death penalty cases, and will review the constitutionality of those death sentences during its next term. The two cases are Buck v. Stephens, in which Duane Buck was sentenced to death after a psychologist testified at his penalty trial that the fact that Buck is African-American increases the likelihood that he presents a future danger to society; and Moore v. Texas, a challenge to Texas' unscientific test for determining whether a defendant is intellectually disabled and therefore exempt from execution. Texas, through its then-Attorney General John Cornyn, had conceded that seven death row prisoners, including Buck, had been unfairly sentenced to death after juries in their cases had been exposed to expert mental health testimony improperly linking race and future dangerousness. The other defendants whose trials were tainted by such testimony were granted new sentencing hearings, but Buck's case did not reach the courts until Cornyn had become a U.S. Senator, and the new Attorney General (now Governor), Greg Abbott, opposed granting Buck a new sentencing hearing. The Court granted review on one of two issues presented in Bobby James Moore's petition for certiorari, whether a state may reject current medical standards in determining intellectual disability. It initially appeared to have granted review of a second issue as well, whether Moore's "extraordinarily long" confinement on death row violates the Eighth Amendment ban on cruel and unusual punishment. However, in an updated order, the Court clarified that it was limiting its review to only the intellectual dsability question. Moore was sentenced to death more than 35 years ago, and has been diagnosed as intellectually disabled by medical professionals. The Texas Court of Criminal Appeals rejected his intellectual disability claim in 2015 because he failed to meet Texas' “Briseño factors,” a set of unscientific criteria based on the fictional character of Lennie Smalls from the novel "Of Mice and Men." 

Alabama Prepares to Execute 65-Year-Old Mentally Ill Prisoner Disabled by Several Strokes

UPDATE: The U.S. Court of Appeals for the Eleventh Circuit stayed Madison's execution, ordering oral argument on his competency claim. Previously: Alabama is preparing to execute Vernon Madison (pictured) on May 12, as his lawyers continue to press their claim that the 65-year-old prisoner is incompetent to be executed. Defense lawyers say Madison, whom a trial judge sentenced to death despite the jury's recommendation of a life sentence, suffers from mental illness and has additional cognitive impairments, retrograde amnesia, and dementia as a result of strokes in May 2015 and January 2016. The strokes also have caused a significant drop in Madison's IQ, which now tests at 72, within the range the U.S. Supreme Court has recognized as supporting a diagnosis of intellectual disability. In addition, the strokes have left Madison legally blind. In its 1986 decision in Ford v. Wainwright, the Supreme Court ruled it unconstitutional for states to execute mentally incompetent prisoners, whom it defined as people who do not understand their punishment or why they are to be executed. Madison's lawyers have unsuccessfully argued in Alabama's state and federal courts that, because of his mental impairments, he is unable to understand why the state will execute him. An Alabama trial judge ruled earlier this month that Madison is competent, and the court denied his motion for a stay of execution. On May 6, he presented his competency claim to the federal district court, which denied relief on May 10. Madison's lawyers have appealed that ruling. Madison has been on death row for more than 30 years. His conviction for the murder of a white police officer has been overturned twice, once because prosecutors intentionally excluded black jurors from serving on the case and once because the prosecution presented improper testimony from an expert witness. Last week, the U.S. Supreme Court vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Madison's lawyers have sought review of his case in light of Johnson and are also seeking a stay of execution to permit him to litigate the constitutionality of the state's judicial override provisions. 

U.S. Supreme Court Orders Alabama to Reconsider Constitutionality of Its Death Penalty Sentencing Procedure

The U.S. Supreme Court has vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and has directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Johnson, represented by lawyers from the Equal Justice Initiative (EJI), had challenged the constitutionality of his death sentence, which was imposed by a trial judge after a nonunanimous jury vote of 10-2 recommending a death sentence, as violating the Supreme Court's decision earlier this year in Hurst v. Florida. According to Johnson's Supreme Court pleadings, the trial court had instructed the jury that it did not need to unanimously agree to any particular fact that would have made Johnson eligible for the death penalty, nor did it have to identify for the court any specific aggravating factors that it found to be present in the case. Hurst ruled that Florida's capital sentencing procedures, which permitted critical factual findings necessary to impose a death sentence to be made by the trial judge, rather than the jury, violated the Sixth Amendment right to a jury trial. Johnson's lawyers argued that Alabama's sentencing scheme suffers from the same constitutional defect and that, "[i]n Bart Johnson's case, like in Hurst, the judge imposed the death penalty based on finding two aggravating factors that were not clearly found by the jury." Bryan Stevenson, EJI's executive director, said that the Court's ruling could have systemic implications: "This ruling implicates all [capital] cases in Alabama. We have argued that Alabama's statute no longer conforms to current constitutional requirements. The Court's ruling today supports that view." In March, an Alabama Circuit Judge barred the death penalty in four cases on the grounds that Alabama's sentencing scheme was unconstitutional. The Supreme Court's decision to order reconsideration of Johnson's case could also affect a court challenge currently pending in the Delaware Supreme Court over the constitutionality of its death penalty statute, which employs similar sentencing procedures. Likewise, defense lawyers in Nebraska have argued that the death penalty statute in that state — which has been repealed by the legislature pending the outcome of a ballot initiative in November — impermissibly vests key fact-finding authority in the trial judge, rather than the jury. 

Finding Prosecutorial Misconduct, Alabama Courts Grant Relief from Two Capital Convictions

In one week, courts in unrelated cases have granted relief to two Alabama death row inmates because of prosecutorial misconduct. On March 11, Alabama Circuit Judge Robert Smith dismissed capital charges against ex-state trooper George Martin and barred his retrial because of the prosecution's "willful misconduct." Martin had been convicted for allegedly murdering his wife in a car fire. In 2000, jurors recommended that Martin be sentenced to life, but the trial judge overrode their recommendation and imposed a death sentence. In that trial, the prosecution asserted that Martin had burned his wife alive, but suppressed a witness's statement that she kept a can of gas in her car. It also willfully withheld evidence that it had shown photos of every black trooper from Mobile County to a white witness who had seen a "large black man" in a trooper's uniform in the vicinity of the car, and that the witness not only had not identified Martin (who is 5'6"), but had selected the picture of a different trooper. Judge Smith wrote, "If the Martin case is not one which is appropriate for dismissal, there may never be one....The affirmative use by the prosecutors of partial truths and untruths with knowledge," he wrote, constituted "willful misconduct." One week later, on March 18, the Alabama Court of Criminal Appeals ordered a new trial for Derek Horton because the prosecution had improperly attempted "[t]o buttress its weak case" against Horton for the murder of a woman in a burglarized mobile home by presenting evidence of his past drug use and of an investigation against him for domestic violence. The court said this evidence of bad character was "superfluous to the State's case" and "served no purpose other than to paint Horton as a drug-using, drug-dealing criminal who had a propensity to commit violent crimes against women." The court found the use of this evidence especially prejudicial because the state had "produced no witnesses or direct evidence placing Horton at [the victim]'s mobile home at the time of the crime" and his fingerprints were not found on any of the murder weapon or any of the items taken from the mobile home or strewn about the highway in the vicinity of the location in which the victim's stolen car had been abandoned.

Florida Legislature Passes Bill Requiring Agreement of 10 Jurors Before Judge May Impose Death Sentence

UPDATE: Gov. Rick Scott signed the bill into law on March 7. Previously: The Florida legislature passed a bill on March 3 to restructure its death penalty statute in response to the U.S. Supreme Court's ruling in Hurst v. Florida, which declared the state's death penalty procedures unconstitutional. The bill modifies Florida's practice of permitting judges to impose death sentences without the unanimous agreement of jurors by requiring that at least ten jurors recommend death before the judge may impose a death penalty. It also directly addresses Hurst by requiring that jurors unanimously find any aggravating circumstances that the prosecution seeks to prove to make the defendant eligible for the death penalty. Previously, Florida judges made the determination whether the prosecution had proven aggravating circumstances that made the defendant eligible for the death penalty, and the statute permitted the judge to impose death based upon a simple majority recommendation or, in certain circumstances, when the jury had recommended life imprisonment. The new 10-2 requirement matches the standard applied in Alabama. Along with Delaware - which permits the court to impose death after a simple majority recommendation by the jury - these states stand alone in the country in allowing a death sentence after a jury's non-unanimous sentencing recommendation. Delaware and Alabama still permit judicial override. Delaware's system is currently under review by that state's highest court, and on March 3, an Alabama circuit court judge declared that state's sentencing procedure unconstitutional.

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