Alabama Court Upholds Fifth Non-Unanimous Death Sentence Imposed on Intellectually Impaired Man Over the Course of Six Penalty Trials for the Same Crime

An Alabama appeals court has upheld a fifth non-unan­i­mous death sen­tence imposed on a death-row pris­on­er who has faced six cap­i­tal sen­tenc­ing tri­als for the same offense and was once found to be inel­i­gi­ble for the death penal­ty because of intellectual disability.

On September 2, 2022, the Alabama Court of Criminal Appeals (ACCA) affirmed the death sen­tence imposed on Jerry Jerome Smith by a Houston County tri­al judge in 2018 fol­low­ing a 10 – 2 jury sen­tenc­ing rec­om­men­da­tion for death. It was the sixth time Houston County District Attorney Doug Valeska had sought the death penal­ty against Smith, despite evi­dence that mul­ti­ple experts had diag­nosed him with intel­lec­tu­al dis­abil­i­ty, his IQ of 67 falls well with­in the range of intel­lec­tu­al dis­abil­i­ty, he can­not read or write, and he was placed in spe­cial edu­ca­tion class­es in school. 

Smith was first tried and sen­tenced to death in 1988. Each of his first four death sen­tences was over­turned for con­sti­tu­tion­al vio­la­tions unre­lat­ed to the non-unan­i­mous jury votes. The court declared a mis­tri­al in his fifth sen­tenc­ing tri­al after four jurors vot­ed for a life sen­tence. In four of the five tri­als in which his judge imposed a death sen­tence, his juries did not unan­i­mous­ly vote for death sen­tence — a prac­tice allowed only in Alabama. Houston County is a sig­nif­i­cant out­lier in its use of the death penal­ty, and has faced a civ­il rights law­suit over racial dis­crim­i­na­tion in jury selection.

Houston County has imposed 33 death sen­tences since 1972, more than any oth­er coun­ty with a pop­u­la­tion of 125,000 or less. Nearly three-quar­ter of those death sen­tences have been imposed on Black defen­dants. It has the nation’s high­est per capi­ta death-sen­tenc­ing rate of any coun­ty between 75,000 and 150,000 in size (30.96/100,000 pop­u­la­tion), more than 10% high­er than any sim­i­lar­ly sized coun­ty. Its 18-per­son death row as of January 1, 2021 was dou­ble that of any sim­i­lar­ly sized coun­ty in the coun­try, and its death row of 16.89 pris­on­ers per 100,000 pop­u­la­tion was 1.5 times larg­er than the per capi­ta pop­u­la­tion of any sim­i­lar­ly sized county’s death row.

One quar­ter of Houston County’s 106,000 res­i­dents are Black. Smith, who is Black, was tried at least once by an all-white jury, after Valeska removed every qual­i­fied Black juror. In 2011, the Equal Justice Initiative filed a civ­il rights law­suit against Valeska, argu­ing that he had repeat­ed­ly and ille­gal­ly exclud­ed Black cit­i­zens from serv­ing on juries in Houston and neigh­bor­ing Henry County.

In Smith’s first tri­al, his jury vot­ed 11 – 1 to rec­om­mend that he be sen­tenced to death. In 2003, the Alabama Supreme Court vacat­ed that death sen­tence because the tri­al court had improp­er­ly lim­it­ed the mit­i­gat­ing evi­dence he was per­mit­ted to present. At Smith’s sec­ond sen­tenc­ing tri­al in 2005, the jury vot­ed 10 – 2 to rec­om­mend death. The Court of Criminal Appeals reversed his death sen­tence, con­clud­ing that Smith was inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. However, the Alabama Supreme Court over­turned that rul­ing and direct­ed the tri­al court to con­duct a hear­ing con­cern­ing Smith’s intel­lec­tu­al dis­abil­i­ty. The same judge who had twice sen­tenced Smith to die then found that Smith was not intel­lec­tu­al­ly dis­abled. The Alabama Supreme Court sub­se­quent­ly reversed the death sen­tence on a sep­a­rate claim that vic­tims’ fam­i­ly mem­bers had improp­er con­tact with jurors.

Smith’s third death sen­tence, in 2012, was the one tri­al in which the jury reached a unan­i­mous sen­tenc­ing rec­om­men­da­tion. However, that rec­om­men­da­tion was reached in part because the tri­al court improp­er­ly per­mit­ted the pros­e­cu­tion to present and the jury to con­sid­ered an aggra­vat­ing cir­cum­stance that did not exist at the time of Smith’s offense. The ACCA again reversed Smith’s death sen­tence, find­ing that the invalid aggra­vat­ing evi­dence placed an improp­er weight on scales of death in his case.

In the fourth cap­i­tal sen­tenc­ing pro­ceed­ing in 2014, the tri­al court vio­lat­ed Smith’s Sixth Amendment right to a pub­lic tri­al by exclud­ing the media and mem­bers of the pub­lic from the court­room dur­ing jury selec­tion. The tri­al court then imposed a death sen­tence based on a non-unan­i­mous 10 – 2 jury rec­om­men­da­tion. in favor of a death sen­tence. After the ACCA reversed that death sen­tence, the case returned to the tri­al court for a fifth penal­ty tri­al in 2016. At that tri­al, just 8 mem­bers of the jury vot­ed for death. A pro­vi­sion of Alabama law allowed the tri­al court to declare a penal­ty-phase mis­tri­al if few­er than 10 jurors rec­om­mend­ed death and few­er than a major­i­ty rec­om­mend­ed life. With the jury split at 8 – 4 in favor of death, the tri­al court declared a mis­tri­al and ordered the sixth penalty trial. 

Smith then sought a pre­tri­al evi­den­tiary hear­ing on his claim that he was inel­i­gi­ble for the death penal­ty, argu­ing that the U.S. Supreme Court’s 2017 rul­ing in Moore v. Texas estab­lished that the Alabama Supreme Court had relied on uncon­sti­tu­tion­al fac­tors when it pre­vi­ous­ly reject­ed his intel­lec­tu­al dis­abil­i­ty claim. The tri­al court declined to con­duct that hear­ing. In its September 2 deci­sion, the ACCA refused to revis­it the state supreme court’s rul­ing, say­ing it was ​“the law of the case.” The court also reject­ed Smith’s chal­lenges to the con­sti­tu­tion­al­i­ty of non-unan­i­mous death sen­tences, the tri­al court’s exclu­sion of evi­dence that a victim’s fam­i­ly mem­ber opposed the death penal­ty for Smith, and that pros­e­cu­tors had improp­er­ly struck African Americans from the jury.