Alabama

Alabama

Alabama Prisoner Facing Eighth Execution Date Claims Innocence, Challenges Execution Procedures

Tommy Arthur (pictured), an Alabama death-row prisoner whose 35-year journey through the court system has frustrated both proponents and opponents of the death penalty, is scheduled to be executed on May 25, 2017, the eighth time Alabama has set an execution date in his case. Arthur—whose conviction and death sentence has twice been overturned by the courts and was sentenced to death by his trial judge based upon a non-unanimous jury sentencing recommendation—has steadfastly maintained his innocence in the 1982 murder of Troy Wicker. Most recently, an evenly divided U.S. Supreme Court issued a stay of execution four hours after Arthur's execution was set to begin on November 3, 2016, so the Court could consider whether to review Arthur's challenge to Alabama's use of the controversial drug midazolam and his request to be executed by firing squad. The Court ultimately declined to review both that claim and Arthur's separate challenge to the constitutionality of Alabama's non-unanimous sentencing practices. Arthur has repeatedly raised innocence claims, seeking new forensic testing of evidence from his case. Judy Wicker, the wife of Troy Wicker, who was charged with hiring Arthur to kill her husband, testified at her trial that her husband had been murdered by a burglar who beat and raped her. After Ms. Wicker's conviction, she changed her testimony when a prosecutor, who had previously represented her at a parole hearing, offered her early release if she testified against Arthur. The rape kit taken from Ms. Wicker at the time of the murder was lost or destroyed without being tested for DNA and, according to Arthur's current lawyer, Suhana Han, “[n]either a fingerprint or a weapon, nor any other physical evidence connects Arthur to the murder of Troy Wicker.” Hairs found near the victim have also never been tested with modern DNA technology. Arthur has also argued that his trial counsel was ineffective, and continues to litigate issues relating to Alabama's lethal injection protocol. He currently has an emergency motion pending before the U.S. Court of Appeals for the 11th Circuit, challenging the state's planned use of midazolam, a drug that has been linked to many problematic executions, including that of Ron Smith in Alabama in December 2016. He has also challenged the state's refusal to disclose records related to the Smith execution, which his lawyers say may provide critical evidence for his lethal-injection challenge. The Alabama Court of Criminal Appeals issued a preliminary ruling in Arthur's favor on a separate issue on May 23, reversing a Montgomery Circuit judge's order rejecting Arthur's claim that the legislature, rather than the Department of Corrections, should determine the state's execution method. But that procedural ruling will not delay his execution. His motion stated, "The role of the legislature is particularly critical given the controversial nature of the ADOC's current midazolam-based execution protocol. ...The choice of the first drug (midazolam) to be used is critical, because without an effective anesthetic, the second and third drugs would cause unbearable pain. But the drug the ADOC chose (in secret), midazolam, is not used in medical practice as a general anesthetic; rather, it is an anti-anxiety sedative in the same drug family as Valium and Xanax, and its use in lethal injection has been extremely problematic." [UPDATE: Alabama executed Thomas Arthur near midnight on May 25. He was pronounced dead at 12:15 a.m. on May 26. Media witnesses reported no visible indicators that the drugs had failed.]

Death-Row Exoneree, Law Professor, Attorney Voice Opposition to Alabama's "Fair Justice Act"

Soon after passing legislation to make death penalty trials fairer by preventing judges from overriding jury recommendations of life sentences, the Alabama legislature is taking steps to enact a bill that critics say would make capital appeals far less fair. The bill, denominated the "Fair Justice Act," would constrict the amount of time death-row prisoners have to file appeals, impose deadlines for judges to rule on appeals, and require prisoners to pursue their direct appeal and post-conviction appeal simultaneously. Critics of SB 187/HB 260, which has passed the Senate and been approved by the House Judiciary Committee, include Harvard Law School Professor Ronald Sullivan Jr., Alabama death-row exoneree Anthony Ray Hinton, and Birmingham attorney Lisa Borden, who say the proposal is neither fair nor just. They argue that the bill would reduce the quality of appellate representation, insulate trial errors from appellate review, and increase the risk of executing innocent people. Sullivan called the bill "deceitfully named" and wrote it would "undermine much of the progress" made when Alabama recently became the last state in the U.S. to end judicial override. Hinton, who spent 30 years on Alabama's death row before being exonerated, said, "If proposed changes to Alabama's postconviction procedures under consideration by the state legislature had been enacted, I would have been executed despite my innocence." Hinton explains that he spent 14 years looking for volunteer lawyers who could help him prove his innocence, saying, "Because the so called "Fair Justice Act" now pending before the state legislature puts time restrictions on how long death row prisoners have to prove their innocence or a wrongful conviction, this legislation increases the risk of executing innocent people and makes our system even less fair." Borden raises concerns that the poor quality of trial-level representation will spill over into the proposed shortened appeals process. "The average trial of a capital case with appointed counsel takes just a few days, given appointed counsel's frequent lack of preparation and failure to challenge the State's case. ...The attorneys and experts who will try to uncover and correct the injustices done to poor defendants must not be forced to rush through the process too." She suggests, "If Alabama wants to save taxpayers millions of dollars, and provide certainty and finality for the peace of mind of the victim's families, it could do so by abolishing the death penalty, or by limiting its use to only the most egregious cases and providing real, effective representation for those charged with capital crimes."

Supreme Court Tells Alabama to Reconsider the Factors It Has Used to Determine Intellectual Disability

The U.S. Supreme Court has vacated the Alabama state courts' rejection of a prisoner's claim that he is ineligible for the death penalty because of intellectual disability, and directed the state to reconsider his claim in light of the Court's recent decision in Moore v. Texas requiring states to employ scientifically accepted standards in determining whether a death-row prisoner is intellectually disabled. On May 1, 2017, the U.S. Supreme Court agreed to review the case of Taurus Carroll, and vacated the Alabama Court of Criminal Appeals' decision in his case after Carroll's lawyer argued that the March 28 decision in Moore established that Alabama had unconstitutionally deviated from accepted methods of determining intellectual disability. In 2002, the Supreme Court ruled in Atkins v. Virginia that defendants who are found to have intellectual disability—then known as mental retardation—cannot be executed. The ruling left states with discretion in establishing procedures for determining which defendants have intellectual disability. In Moore, however, the Court reiterated that this discretion is not “unfettered” and that a state's intellectually disability determination must be “informed by the medical community’s diagnostic framework.” The Court struck down Texas' use of an unscientific set of lay stereotypes, known as the “Briseño factors," that Texas had used to determine whether Moore had deficits in adaptive functioning characteristic of intellectual disability. The Court said that, "[i]n concluding that Moore did not suffer significant adaptive deficits, the [Texas courts] overemphasized Moore’s perceived adaptive strengths," but "the medical community focuses the adaptive-functioning inquiry on adaptive deficits." In Carroll's case, the Alabama courts had considered Mr. Carroll’s supposed adaptive strengths—that he had passed a GED exam and successfully held down a job in the prison kitchen—as proof that he was not intellectually disabled. Carroll's attorney argued that, “As in Moore, the consideration below of Mr. Carroll’s adaptive functioning ‘deviate[s] from prevailing clinical standards, by ‘overemphasiz[ing] Mr. [Carroll]’s perceived adaptive strengths.” He also argued that Alabama had unconstitutionally employed a strict IQ cutoff score, while at the same time inflating Carroll's IQ score by refusing to apply scientifically established factors that adjust for limitations in IQ testing. With the Supreme Court's ruling in Carroll's case, the Alabama Court of Criminal Appeals must now determine how Moore affects Alabama's methods of determining intellectual disability. John Palombi, a lawyer with the Federal Defenders for the Middle District of Alabama, said he was "pleased" with the Court's decision. “This will require Alabama courts to follow scientific principles when making the life or death decision of whether someone charged with capital murder is intellectually disabled,” he said.

Alabama Legislature Votes to End Judicial Override

The Alabama legislature has approved and sent to the Governor a bill that would bring to an end the practice of permitting trial judges to impose death sentences over a capital sentencing jury's recommendation that the defendant be sentenced to life. Alabama is the only state in the U.S. that currently permits judicial override. The legislature acted in response to mounting court challenges to Alabama's death penalty statute. On April 4, the state House of Representatives voted 78-19 to pass a bill prohibiting trial judges from overriding the sentencing recommendations of juries in death penalty cases. Governor Robert Bentley has indicated that he intends to sign the legislation. Two versions of the proposal had advanced in the state legislature. A bill sponsored by Sen. Dick Brewbaker (R-Montgomery) that would eliminate judicial override but retain Alabama's practice of allowing death sentences if ten or more jurors voted for death, passed the Senate 30-1 on February 23. A House bill by Rep. Chris England (D-Tuscaloosa) that would have abolished judicial override and required a unanimous jury vote for death had passed the House Judiciary Committee on February 16. Rep. England agreed to substitute the Senate version of the bill, which then overwhelmingly passed the House. The bill "places the death penalty back in the proper perspective," England said. "It puts it ... where in my opinion the Constitution intends it to be: in the hands of juries." Although Alabama is no longer an outlier on judicial override, it remains the only state in the country to permit a death sentence to be imposed based upon a non-unanimous jury vote. According to research by the Equal Justice Initiative (EJI), judicial override has historically been employed to impose death sentences when a jury recommended life, rather than as a safeguard against unjust jury votes for death. In 101 of the 112 cases in which Alabama judges have overriden capital jury sentencing recommendations, they have imposed the death penalty over a jury recommendation of life. The EJI study also found that the use of judicial override has been influenced by political concerns, with sentencing overrides disproportionately rising in election years. Bryan Stevenson, founder of EJI, said, "Override undermines the role of jurors, who sometimes deliberate for hours to make the right decisions in these cases on behalf of the community. Alabama has had one of the highest death-sentencing rates in the country largely because we add to death row so many people juries do not believe should be executed."

Federal Appeals Court Finds Alabama Prisoner Incompetent To Be Executed

The U.S. Court of Appeals for the Eleventh Circuit ruled on March 15 that Alabama death-row prisoner Vernon Madison (pictured)—who was spared execution last May when the U.S. Supreme Court deadlocked at 4-4 on whether to lift a stay—is not mentally competent to be executed. The appeals court overturned an Alabama state court ruling, saying that the state court had unreasonably determined the facts when it concluded that Madison was aware of the reasons for his impending execution. “The only evidence in the record that does address this issue demonstrates that, due to his serious mental disorder, Mr. Madison does not understand the connection between his crime and his execution,” Judge Beverly Martin wrote. Under the 1986 Supreme Court ruling Ford v. Wainwright, the execution of individuals who lack a rational or factual understanding that they will be executed and the reason for their execution constitutes cruel and unusual punishment, in violation of the Eighth Amendment. The court found that the record contained uncontroverted evidence that Madison has "memory loss, difficulty communicating, and profound disorientation and confusion," in part caused by two debilitating strokes in 2015 and 2016. As a result, he no longer remembers the crime for which he was sentenced to death, nor does he understand why he was to be executed. He asked the prison to notify his mother of one of his strokes, but she had been dead for several years. The court noted that Madison is, "legally blind, cannot walk independently, is incontinent and has slurred speech.” Madison is one of the longest serving death-row prisoners in Alabama, having been tried three times for the 1985 murder of a Mobile police officer. His first conviction was overturned because of racially biased jury selection. His second conviction was reversed because prosecutors presented illegal evidence. At his third trial, the jury voted 8-4 to recommend that Madison receive a life sentence, but the judge overrode the jury's verdict and sentenced him to death. In 2016, the Eleventh Circuit granted Madison a stay of execution just hours before he was scheduled to die, in order to consider his incompetency claim, and the Supreme Court split on the prosecution's motion to vacate the stay, leaving the appeals court's decision in place. 

Florida, Alabama Consider Legislation on Exoneree Compensation

As the Florida legislature considers a bill that would change Florida's "Clean Hands" policy, which denies compensation for wrongful convictions if the defendant had a prior felony record, Alabama lawmakers are deciding whether to grant compensation to Anthony Ray Hinton (pictured), who was exonerated in 2015 after spending nearly 30 years on death row. In Florida, death row exoneree Herman Lindsey told the Senate Criminal Justice Committee about his having been denied compensation because of prior unrelated felony convictions. He spoke about the difficulty he has faced finding housing or a job because the arrest for murder is still on his record. He said the "Clean Hands" Provision is, "basically saying, ‘we can take anybody that has a criminal record and say let’s falsely incarcerate him and when he found it wasn’t really him, we can actually put him out on the streets and we don’t actually even have to worry about it.’ I didn’t receive any apology. I didn’t receive any compensation.” The proposed bill would allow compensation for some exonerees who have prior nonviolent felony convictions. Sen. Jeff Brandes (R-St. Petersburg), a supporter of the bill, said, “If the state and the people of the state get it wrong, it shouldn’t matter what individuals have done in their past.” Lindsey said only four of Florida's 26 death-row exonerees have received compensation under the Clean Hands Act. “Now, perhaps, this might open the door for 10." Meanwhile, the Alabama Committee on Compensation for Wrongful Incarceration is considering an application to grant $1.5 million in compensation to Anthony Ray Hinton. The amount is based on the 30 years Hinton was wrongfully incarcerated. Two Assistant Attorneys General have written conflicting letters to the committee, with one stating, "I have found no information that indicates that Mr. Hinton's application is disqualified by any of the eligibility exceptions," while the other claims, "The fact that thirty years later different ballistic experts are unable to say conclusively that this gun fired the fatal shots, without the benefit of the original test fired projectiles used by the original examiners, is not evidence of innocence." Sen. Paul Bussman (R-Cullman) has introduced a bill to compensate Hinton $1.5 million, to be paid over a three-year period. He criticized the notion that a wrongly convicted person should be denied compensation when the state lacks evidence to convict, saying, "We can't convict someone in the court of public opinion. ... It has to be in a court of law."

Capital Sentencing Reform Bills Advance in Florida, Alabama

Legislative committees in Florida and Alabama have voted to advance bills that would reform capital sentencing procedures in those states that have been the subject of extensive constitutional challenges. In Florida, the Senate Criminal Justice Committee by a vote of 6-0 approved a bill that would require a jury to unanimously recommend a death sentence before the trial judge could sentence a defendant to death. The bill would bring Florida's sentencing procedure in line with a Florida Supreme Court ruling that had declared unconstitutional death sentences that were imposed after one or more jurors had recommended a life sentence. In Alabama, the Senate Judiciary Committee approved a bill to end Alabama's practice of judicial override. Alabama is currently the only state that allows judges to override a jury's recommendation of a life sentence and impose a death sentence. Senator Dick Brewbaker (R - Montgomery), who sponsored the bill, raised concerns about political pressure on elected judges. A majority of overrides in the last 10 years happened in election years. “I’m not saying anyone has any evil intent,” Brewbaker said. “I’m not arguing about constitutionality, but there’s no way to take politics out of politics. It’s like taking the wet out of the water. It can’t be done.” According to research by the Equal Justice Initiative, judges have used their override power to impose death sentences over jury recommendations for life 101 times, but overrode jury recommendations for death and imposed life sentences just 11 times. The U.S. Supreme Court has remanded four death penalty cases to Alabama's courts for a determination of the constitutionality of the state's sentencing practices—including judicial override. The Alabama courts have upheld the practice, and in December 2016, Alabama executed Ronald Smith despite a 7-5 jury recommendation that he be sentenced to life.

Alabama Faith Leaders Hold Panel on Death Penalty, Spotlight 'Rocky' Myers' Case of Possible Innocence

Inspired by the case of Robin "Rocky" Myers (pictured), an intellectually disabled and possibly innocent Alabama death row prisoner whom an elected state judge sentenced to death despite a 9-3 jury recommendation for life, a panel of faith leaders gathered in Montgomery, Alabama to discuss religious views on the death penalty and the intersection of faith and justice. Before the discussion began, the faith leaders and the audience viewed a screening of a new documentary on Myers' case describing why his lawyers believe he is innocent. The documentary explained that no forensic evidence links Myers to the crime and that the prosecution witness who identified him has since recanted his testimony. Myers' case also highlights other problems in the death penalty system. A neuropsychologist who evaluated Myers diagnosed him with intellectual disability, a condition that would make him ineligible for execution, but courts have not granted him relief. His disability hindered Myers' opportunities to have his appeals heard. His attorney abandoned him without notice, and Myers, who cannot read, did not know his appeal deadlines had expired until a fellow inmate read him a notification letter from the state. Finally, Myers' jury voted 9-3 that he should be sentenced to life, but—in a practice no state other than Alabama still allows— the trial judge overrode the jury's recommendation and sentenced Myers to death. After the film presented Myers' story, leaders from a variety of faith traditions led a discussion about justice and capital punishment. The multi-faith panel included representatives of Christianity, Judaism, and Islam and featured Rabbi Elliot Stevens, Sister Gilda Marie Bell, a Catholic nun of the Sisters of the Blessed Sacrament, and Aya Zaied, a youth leader for the East Montgomery Islamic Society. Zaied summarized Islamic views on the issue, saying, "If you claim Islam, … then justice is your responsibility. We try to teach that to our children really young so they understand if (someone is) hurting, then I’m hurting. We’re all in this together."

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