Lawyers for 67-year-old Vernon Madison (pic­tured), a death-row pris­on­er whose diag­no­sis of ​“irre­versible and pro­gres­sive” vas­cu­lar demen­tia has left him with no mem­o­ry of the crime for which he was sen­tenced to death, have filed a motion to stay his January 25 exe­cu­tion in Alabama. In a peti­tion for writ of cer­tio­rari and motion for stay of exe­cu­tion filed January 18 in the U.S. Supreme Court, Madison’s lawyers argue that the courts wrong­ly found Madison com­pe­tent to be exe­cut­ed based upon the opin­ion of a drug-addict­ed psy­chol­o­gist who has been sus­pend­ed from prac­tice and arrest­ed on felony charges of forg­ing pre­scrip­tions for con­trolled sub­stances. The peti­tion says a series of strokes has left Madison with no mem­o­ry of the mur­der for which he was sen­tenced to death, an IQ with­in the range of those with intel­lec­tu­al dis­abil­i­ty, and unable to recall the alpha­bet beyond the let­ter G. Madison is also legal­ly blind, incon­ti­nent, and unable to walk inde­pen­dent­ly. The U.S. Supreme Court had cleared the way for Madison’s exe­cu­tion in a November 2017 opin­ion, over­turn­ing an ear­li­er fed­er­al appeals court’s rul­ing that Alabama’s state courts had unrea­son­ably found Madison com­pe­tent to be exe­cut­ed. The Supreme Court not­ed that, at that time, its review of the case was lim­it­ed by fed­er­al habeas law, which the court said required it to defer to the Alabama court rul­ing. The court expressed no view ​“out­side of the [fed­er­al habeas] con­text” whether Madison was com­pe­tent to be exe­cut­ed. In their cur­rent appeal, Madison’s lawyers pre­sent­ed unre­butted new evi­dence chal­leng­ing the opin­ions offered by Dr. Karl Kirkland, the court-appoint­ed psy­chol­o­gist on whom the state court had relied in find­ing Madison to be com­pe­tent. The appeal argued that Kirkland’s opin­ions were not cred­i­ble because ​“he was suf­fer­ing from a sub­stance abuse dis­or­der, using forged pre­scrip­tions to obtain con­trolled sub­stances just four days after the hear­ing in this case and was ulti­mate­ly charged with four felonies and sus­pend­ed from the prac­tice of psy­chol­o­gy.” After a brief hear­ing in a Mobile County court, the judge denied relief in a sin­gle sen­tence, say­ing that Madison ​“did not pro­vide a sub­stan­tial thresh­old show­ing of insan­i­ty.” Because no appeal was avail­able in the Alabama court sys­tem, Madison brought his appeal direct­ly to the Supreme Court. This time, his appeal notes, the Court is not con­strained by the fed­er­al habeas statute. Justices Sotomayor and Breyer both issued sep­a­rate con­cur­ring opin­ions in November, with Justice Sotomayor point­ing out that ​“whether a State may admin­is­ter the death penal­ty to a per­son whose dis­abil­i­ty leaves him with­out mem­o­ry of his com­mis­sion of a cap­i­tal offense” is a ques­tion that has yet to be addressed by the Court, and Justice Breyer express­ing his belief that the Court should take up the ques­tion of the con­sti­tu­tion­al­i­ty of the death penal­ty rather than devel­op law spe­cif­ic to old­er, infirm death-row pris­on­ers. In 1994, the sen­tenc­ing jury in Madison’s case rec­om­mend­ed that he be sen­tenced to life with­out parole, but the tri­al judge over­rode the jury’s rec­om­men­da­tion and sen­tenced Madison to death. In 2017, Alabama abol­ished the prac­tice of judicial override.

(Ivana Hrynkiw, Alabama death row inmate’s lawyers: Court-appoint­ed expert’s opin­ion invalid because of drug arrest, AL​.com, January 22, 2108; Kim Chandler, Lawyers: Inmate await­ing exe­cu­tion no longer remem­bers crime, Associated Press, January 22, 2018; Beth Shelburne, Request for exe­cu­tion stay says con­demned Alabama man is incom­pe­tent, WBRC Fox‑6 News, January 22, 2018.) Read Madison’s Petition for Writ of Certiorari. The full set of Supreme Court plead­ings for this appeal are avail­able here. See Upcoming Executions and Mental Illness.

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