Finding that an Alabama pros­e­cu­tor with a his­to­ry of mis­con­duct had ​“inten­tion­al­ly” made improp­er com­ments in the cap­i­tal tri­al of Artez Hammonds (pic­tured) ​“in fla­grant vio­la­tion” of a pre-tri­al order warn­ing him not to do so, the U.S. Court of Appeals for the Eleventh Circuit nev­er­the­less denied Hammonds’s appeal and per­mit­ted his con­vic­tion and death sen­tence to stand. While the court not­ed that the pros­e­cu­tor, District Attorney Douglas Valeska ​“had been rep­ri­mand­ed in pri­or cas­es for engag­ing in pre­cise­ly the same uncon­sti­tu­tion­al and uneth­i­cal behav­ior” and said it was ​“very dis­turbed” by the pros­e­cu­tor’s delib­er­ate uncon­sti­tu­tion­al ref­er­ences to Hammonds’s deci­sion not to tes­ti­fy and to his pri­or incar­cer­a­tion, the court ulti­mate­ly held that the com­ments did not affect the jury’s ver­dict and denied him relief. While in prison for an unre­lat­ed offense, Hammonds was tried, con­vict­ed, and sen­tenced to death in Houston County in 1997 for the rape and mur­der of a white woman in a high-pro­file case that had gone unsolved for six years. Despite a pop­u­la­tion of only 100,000, the coun­ty cur­rent­ly has 18 peo­ple on its death row. As of January 1, 2013, its death row ranked 30th in size among all coun­ties in the United States, even though it was less than one-quar­ter the size of any oth­er coun­ty in the top thir­ty, and two-thirds of those coun­ties had pop­u­la­tions of more than one mil­lion. Valeska served as Houston County’s dis­trict attor­ney for three decades until his retire­ment in January 2017, obtain­ing more than a dozen death sen­tences dur­ing that peri­od. A study by the Equal Justice Initiative in May of 2008 report­ed a 16-fold increase in the num­ber of death sen­tences in Houston County between 1995 and 2008, while Valeska was in office, over the death sen­tences imposed in the pre­vi­ous two decades. During his time in office, Valeska was found to have vio­lat­ed the rights of cap­i­tal defen­dants on numer­ous occa­sions by uncon­sti­tu­tion­al­ly strik­ing African Americans from death penal­ty juries because of their race and mak­ing improp­er inflam­ma­to­ry com­ments dur­ing tri­al. Because of this his­to­ry, Hammonds’s tri­al lawyer specif­i­cal­ly request­ed the court, before the tri­al start­ed, to order Valeska to refrain from com­ment­ing on Hammonds’s deci­sion to exer­cise his Fifth Amendment right not to tes­ti­fy. But, as the Eleventh Circuit wrote, ​“nei­ther the Constitution nor a direct order from the court inhib­it­ed Valeska” from improp­er­ly com­ment­ing on Hammonds’s choice not to tes­ti­fy. The court crit­cized the Alabama Attorney General’s office, which rep­re­sent­ed the state dur­ing the appeal, for ​“perpetuat[ing] the cha­rade that Valeska did not intend” to vio­late Hammonds’s rights, say­ing that the state attor­ney’s ​“insis­tence on defend­ing this improp­er con­duct implic­it­ly con­dones the uneth­i­cal tac­tics that Valeska used” and invites oth­er pros­e­cu­tors to engage in sim­i­lar ​“unsa­vory con­duct.” The court pro­vid­ed a copy of its opin­ion to the Alabama State Bar to review Valeska’s con­duct for pos­si­ble disciplinary action.

(“Marilyn Mitchell killer’s appeal denied in fed­er­al court,” Dothan Eagle, October 19, 2017; K. Curtis, ​“These con­vict­ed Houston County killers await death,” WTVY, October 5, 2017; Bert, ​“AL: Claims of Race Discrimination May Continue to Surface Long After Houston County Prosecutor Doug Valeska Is Gone,” The Open File, December 29, 2016; S. Dewan and A. Lehren, ​“Alabama Prosecutor Sets the Penalties and Fills the Coffers,” New York Times, December 13, 2016; Study Reveals Geographic Disparities in Death Sentencing Among Alabama Counties, Equal Justice Initiative, May 1, 2008.) Read the Eleventh Circuit opin­ion. See Prosecutorial Misconduct.

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