OUTLIER COUNTIES: Judicial Override, Race Bias, Official Misconduct Rampant in Mobile, Alabama’s Use of Death Penalty

Judicial over­ride of jury rec­om­men­da­tions of life, the impo­si­tion of death sen­tences after non-unan­i­mous jury sen­tenc­ing rec­om­men­da­tions, and pros­e­cu­to­r­i­al mis­con­duct, race bias, and inef­fec­tive defense coun­sel have made Mobile County, Alabama one of the most pro­lif­ic death sen­tenc­ing coun­ties in the United States. 

Mobile judges imposed 8 death sen­tences between 2010 and 2015, 88% in cas­es with white vic­tims. A recent report by Harvard University’s Fair Punishment Project attrib­ut­es this high rate of death sen­tenc­ing to Alabama’s out­lier prac­tice of per­mit­ting judges to impose death sen­tences after non-unan­i­mous jury sen­tenc­ing rec­om­men­da­tions. The Project found that only 2 of the 10 Mobile death penal­ty cas­es decid­ed on direct appeal since 2006 involved unanimous juries. 

Judicial over­ride of jury rec­om­men­da­tions for life — a prac­tice that today is per­mit­ted only in Alabama — also has con­tributed to unfair­ness and arbi­trari­ness in Mobile cap­i­tal cas­es. Two Mobile County judges, Braxton Kittrell and Ferrill McRae, have used this prac­tice to impose a total of 11 death sentences. 

According to the Equal Justice Initiative, McRae has over­ri­den more jury life ver­dicts (6) than any oth­er Alabama judge, includ­ing death sen­tences imposed on George Martin (pic­tured) and 4 oth­er African-American defen­dants. During a re-elec­tion cam­paign, McRae ran tele­vi­sion ads tout­ing his sup­port for cap­i­tal pun­ish­ment and nam­ing defen­dants whom he had sen­tenced to death. He also report­ed­ly refused to sign a bail-reduc­tion appli­ca­tion in one non-cap­i­tal case because he ​“first want­ed to know the client’s ​‘col­or’” and alleged­ly told an attor­ney in anoth­er case not to pro­vide zeal­ous rep­re­sen­ta­tion ​“because we need more n***ers in jail.” 

McCrae has nev­er over­turned a jury’s death rec­om­men­da­tion to impose a life sen­tence, even when an all-white jury had rec­om­mend­ed death for an intel­lec­tu­al­ly dis­abled black man who could not read the con­fes­sion that he signed. 

Mobile pros­e­cu­tors have also been described as ​“overzeal­ous” in seek­ing death. Just two pros­e­cu­tors, Ashley Rich and Jo Beth Murphee, account for 90% of the Mobile death penal­ty cas­es decid­ed on appeal since 2006, and both have had death sen­tences over­turned for improp­er prosecutorial practices. 

The Fair Punishment Project found that ​“the aver­age defense pre­sen­ta­tion of mit­i­ga­tion evi­dence in Mobile County cap­i­tal tri­als lasts less than one full day” and that one lawyer, Greg Hughes, had been defense coun­sel for 40% per­cent of all the Mobile cap­i­tal cas­es reviewed on direct appeal since 2006. 

As a result of a com­bi­na­tion of pros­e­cu­to­r­i­al and juror mis­con­duct and inef­fec­tive defense rep­re­sen­ta­tion, Mobile death row pris­on­er William Zeigler—who main­tains his inno­cence — was grant­ed a new tri­al in November 2012. In 2015, Ziegler accept­ed a plea deal for time served and was immediately released. 

In March 2016, anoth­er Mobile tri­al judge barred pros­e­cu­tors from retry­ing Martin, find­ing that pros­e­cu­tors had engaged in ​“will­ful mis­con­duct” by sup­press­ing a range of excul­pa­to­ry evi­dence. This includ­ed evi­dence that the pros­e­cu­tion’s lead wit­ness had told inves­ti­ga­tors he had seen a ​“large black man” in a troop­er’s uni­form in the vicin­i­ty of the mur­der (Martin is 5′6″), that inves­ti­ga­tors had shown the wit­ness pho­tos of every black troop­er from Mobile County, and that the wit­ness not only had not iden­ti­fied Martin, but had select­ed the pic­ture of a dif­fer­ent troop­er. Martin’s jury vot­ed 8 – 4 to spare his life, but Judge McRae over­rode their rec­om­men­da­tion. The pros­e­cu­tion’s appeal of the Martin rul­ing is pend­ing in the Alabama appellate courts.