Robert Melson (pic­tured), an Alabama death-row pris­on­er whose clemen­cy peti­tion alleges that aban­don­ment by his post-con­vic­tion lawyers pre­vent­ed him from ade­quate­ly chal­leng­ing the flawed foren­sic evi­dence in his case, received a stay of exe­cu­tion from the U.S. Court of Appeals for the 11th Circuit on a chal­lenge to Alabama’s lethal-injec­tion pro­to­col. Melson was con­vict­ed of three mur­ders at a Popeye’s restau­rant in 1994. A sur­vivor of the crime rec­og­nized one of two assailants as Cuhuatemoc ​“Tempo” Peraita, an acquain­tance of Melson’s, and described the sec­ond assailant only as a black man. More than an hour after the crime occurred, police pulled over Peraita’s car, and arrest­ed him along with the black male pas­sen­ger, Robert Melson. At the sug­ges­tion of police, Peraita — a 17-year-old with intel­lec­tu­al impair­ments — con­fessed to hav­ing been present dur­ing the crime, but claimed Melson had shot the vic­tims. (Peraita has since recant­ed his accu­sa­tion.) Melson has con­sis­tent­ly main­tained his inno­cence. During the inter­ro­ga­tion, police took Melson’s shoes from him. According to Melson’s clemen­cy peti­tion, ​“Five days lat­er, a police evi­dence tech­ni­cian belat­ed­ly dis­cov­ered, pho­tographed, and cast foot­prints in a rainy drainage ditch behind Popeye’s restau­rant, which they lat­er said matched Mr. Melson’s shoes.” Peraita did­n’t tes­ti­fy at Melson’s tri­al, and the wit­ness who had iden­ti­fied Peraita did not iden­ti­fy Melson in a pho­to line­up. No oth­er foren­sic evi­dence — such as fin­ger­prints or DNA — linked Melson to the crime. As a result, Melson’s con­vic­tion relied heav­i­ly on the shoeprint evi­dence, a type of evi­dence that the land­mark 2009 report on foren­sic sci­ence by the National Academies of Science, Strengthening Forensic Science in the United States: A Path Forward, found to be unre­li­able, unsci­en­tif­ic, and sus­cep­ti­ble to bias. In addi­tion to the prob­lems inher­ent with shoeprint evi­dence, near­ly two inch­es of rain had fall­en between the time of the crime and the time police report­ed dis­cov­er­ing the shoeprint. Melson should have been able to chal­lenge the shoeprint evi­dence dur­ing his post-con­vic­tion appeal, but was rep­re­sent­ed by an inex­pe­ri­enced vol­un­teer attor­ney who was not licensed in Alabama and a local attor­ney who had a his­to­ry of mal­prac­tice. The lawyers did not prop­er­ly file Melson’s state post-con­vic­tion peti­tion, and then, on appeal, they filed the doc­u­ments in the wrong court, caus­ing his appeal to be dis­missed. The error was com­pound­ed because the attor­neys failed to inform Melson of the dis­missal. Melson’s time to file a peti­tion for habeas cor­pus in fed­er­al court ran out before he learned his state case had been dis­missed. Cases like Melson’s raise con­cerns about Alabama’s recent­ly passed ​“Fair Justice Act,” which would poten­tial­ly exac­er­bate errors like those made by his attor­neys, since state dead­lines would be short­er and stricter and all state death penal­ty appeals would run con­cur­rent­ly. In a sep­a­rate case, Melson and sev­er­al oth­er Alabama death-row pris­on­ers chal­lenged Alabama’s use of mida­zo­lam in exe­cu­tions, high­light­ing prob­lems that have occurred when the drug was used in past exe­cu­tions. The 11th Circuit stayed Melson’s June 8 exe­cu­tion to allow time for it to con­sid­er that chal­lenge. [UPDATE: The U.S. Supreme Court vacat­ed the stay of exe­cu­tion, and Melson was exe­cut­ed as scheduled.]

(H. Koplowitz, ​“Alabama death row inmate Robert Melson grant­ed stay of exe­cu­tion by fed­er­al appeals court,” AL​.com, June 2, 2017; K. Chandler, ​“Court stays Alabama exe­cu­tion to decide on use of drug,” Associated Press, June 2, 2017; B. Lyman, ​“Melson case revives old ques­tions about Alabama exe­cu­tion meth­ods,” Montgomery Advertiser, June 4, 2017.) Read Melson’s clemen­cy peti­tion and the 11th Circuit’s stay order. See Arbitrariness and Lethal Injection.

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