Alabama Appeals Court Reverses Lower Court Ruling and Restores Death Sentence in Case in Which 10 of 12 Jurors Voted for Life

The Alabama Court of Criminal Appeals (CCA) has reversed a low­er court rul­ing and ordered the court to rein­state the death penal­ty against a Birmingham man whose tri­al judge had sen­tenced him to death even though the jury had vot­ed 10 – 2 to rec­om­mend a life sentence.

With no judges dis­sent­ing, the appeals court on August 6, 2021 over­turned a Jefferson County cir­cuit court’s deter­mi­na­tion that Brandon Deon Mitchell should receive a new penal­ty phase hear­ing because of his tri­al counsel’s fail­ure to present any mit­i­gat­ing evi­dence to the tri­al judge in final sen­tenc­ing pro­ceed­ings two months after the jury had over­whelm­ing­ly rec­om­mend­ed that Mitchell receive a life sen­tence. The appeals court ruled that Alabama law at the time of the hear­ing in January 2007 did not per­mit coun­sel to present addi­tion­al mit­i­gat­ing evi­dence to the judge and, giv­en the jury’s 10 – 2 rec­om­men­da­tion for life, there was no rea­son­able prob­a­bil­i­ty that addi­tion­al evi­dence would have changed the out­come of the trial. 

Mitchell was sen­tenced to death by Judge William Cole, who now serves on the Alabama Court of Criminal Appeals. In sen­tenc­ing Mitchell to death, Cole said that the jury’s rec­om­men­da­tion weighed heav­i­ly in Mitchell’s favor, but nev­er­the­less con­clud­ed that ​“the jury real­ly did not make the right deci­sion.” He said he ​“hoped” that ​“the appel­late courts will reweigh this deci­sion” and said if the courts ​“do away with the over­ride one day … , that won’t hurt my feel­ings at all.” 

Alabama was the last U.S. state that allowed judges to over­ride a jury’s rec­om­men­da­tion for life, but in 2017 repealed the law that per­mit­ted the prac­tice. Among his oth­er claims, Mitchell chal­lenged the con­sti­tu­tion­al­i­ty of judi­cial over­ride and also argued that its repeal by the leg­is­la­ture should apply retroac­tive­ly. Judge Cole recused him­self from the case. The oth­er four judges unan­i­mous­ly over­turned the low­er court’s grant of penal­ty-phase relief and upheld its rul­ing deny­ing relief on the rest of Mitchell’s claims.

Judicial Override’s Controversial History

Alabama’s judi­cial over­ride statute was a sig­nif­i­cant source of con­tro­ver­sy pri­or to its repeal in 2017. A 2011 report by the Equal Justice Initiative (EJI) found that judges over­whelm­ing­ly employed judi­cial over­ride to impose death sen­tences in cas­es in which juries believed life was the appro­pri­ate pun­ish­ment, rather than as a means of pro­tect­ing against over­ly harsh death ver­dicts. It also found that polit­i­cal con­sid­er­a­tions influ­enced the use of judi­cial over­ride by Alabama’s elect­ed judges, with the pro­por­tion of death sen­tences imposed by over­ride increas­ing in elec­tion years. ​“In 2008, 30% of new death sen­tences were imposed by judge over­ride, com­pared to 7% in 1997, a non-elec­tion year. In some years, half of all death sen­tences imposed in Alabama have been the result of over­ride,” EJI reported.

Judicial over­ride also has been taint­ed by racial bias, with judges more like­ly to over­ride a rec­om­men­da­tion for life in cas­es involv­ing white vic­tims. ​“Seventy-five per­cent of all death sen­tences imposed by over­ride involve white vic­tims, even though less than 35% of all homi­cide vic­tims in Alabama are white,” EJI said. Mitchell, a Black man, was con­vict­ed of killing one white vic­tim and one Black victim.

Judicial over­ride has also been linked to wrong­ful con­vic­tions. Of Alabama’s six death-row exon­er­a­tions, three involved judi­cial over­ride, two oth­ers involved non-unan­i­mous jury ver­dicts for death, and the sixth waived jury sen­tenc­ing alto­geth­er. An arti­cle in the Yale Law Journal Forum sug­gest­ed that this may be a result of ​“resid­ual doubt” among jurors, which the authors describe as ​“a state of mind that exists some­where between ​‘beyond a rea­son­able doubt’ and ​‘absolute cer­tain­ty,’” often result­ing from weak­er or more sus­pect evi­dence of guilt. Research has shown that when juror have such doubts, they are sub­stan­tial­ly more like­ly to vote for a life.

More than 30 pris­on­ers sen­tenced to death as a result of judi­cial over­ride still face exe­cu­tion in Alabama and in Florida, which abol­ished judi­cial over­ride in 2016.