Yes, I played a bit part in a U.S.
Supreme Court opinion.
The case, Woodward v Alabama, concerned
a peculiar practice in Alabama that allows judges to sentence convicted capital
murderers to death even after their jury recommended the lesser sentence of
life without parole. It’s called judicial override, and about 20 percent of
Alabama’s 193 condemned killers are on Death Row as a result of one.
The nation’s high court declined to
hear the case and issued no explanation. But in a written dissent, Justice
Sonia Sotomayor, joined in part by Justice Stephen Breyer, said it was time to re-examine
the constitutionality of this process. It is unique to Alabama; two other
states technically allow it, but in practice don’t do it.
“Alabama has become a clear outlier,”
she wrote.
Coincidentally I had downloaded the
opinion earlier that morning, planning one day to blog about the issue. I had
written frequently about the subject when I was a daily newspaper reporter
(capital punishment is one of my specialties), which is what landed me in the middle
of Justice Sotomayor’s opinion.
I tore through her decision, looking
for my reference.
On page 6, Justice Sotomayor began exploring
the pressures that elected judges face in Alabama when it comes to capital
sentencing decisions. She cited the findings from a major report by the
Montgomery-based Equal Justice Initiative, with one judge saying he imposed a
death sentence to improve the racial balance in his personal sentencing tally
and another boasting on the campaign trail about the death sentences he had
imposed.
Then, at the bottom of page 7, I found
my 60 words of “fame:”
With admirable candor, another judge, who has overridden one jury
verdict to impose death, admitted that voter reaction does “‘have some impact,
especially in high-profile cases.’” Velasco,
More Judges Issue Death Despite Jury, Birmingham News, July 17, 2011, p. 11A.
“‘Let’s face it,’” the judge said, “‘we’re human beings. I’m sure it affects
some more than others.’” Id., at 12A. (Emphasis mine)
She was referring one of many articles
I wrote about the override practice and capital punishment in Alabama. The article Justice Sotomayor quoted was based on the just-released
EJI study that was central to her argument that Alabama’s
judicial override system is unconstitutional.
Jefferson County Circuit Court,
which I covered, is the busiest court for capital cases in Alabama. During the
period I covered the beat, 2005-2012, Jefferson County judges were responsible
for nearly half of the state’s overrides.
It’s a thorny issue, to be sure.
Some of Jefferson County's most notorious 21st century murderers – Kerry Spencer, the killer of three policemen; Kenny Billups,
a drug dealer who killed five people on his birthday weekend; Brandon Mitchell, a convicted
felon who killed three people while his partner killed a fourth over
Thanksgiving weekend and Justin White, who raped and killed two young women – received death
sentences from judges despite jury verdicts calling for leniency.
Circuit Judge Tommy Nail, the judge
I quoted in the article that Justice Sotomayor cited, had one of those cases. He
presided over separate trials in 2005 for two men were charged with capital
murder in the deaths of three police officers serving a warrant at a drug house
after an argument with one of the dealers.
Kerry Spencer killed all three
officers and wounded another. His jury recommended life without parole – with 10
votes on at least one of the several capital counts against Spencer.
The co-defendant, Nathaniel Woods, picked
the initial fight with the officers and later instigated the murders by luring
the officers inside the house knowing they would be shot. His jury recommended
death after he practically dared them to do so.
Had Judge Nail followed the two
juries’ recommendations, the killer of three police officers would have
received a lesser sentence than his mouthy co-defendant. The shooter would have
lived (albeit locked up until death), and the talker would be in line for a
lethal injection.
Is that fair? Or is that arbitrary
and capricious (one of the issues that led the U.S. Supreme Court to
temporarily ban the death penalty nationwide in 1972)?
On the other hand, most of the 32
states that allow capital punishment require a unanimous jury verdict of death,
which is binding on the judge. But jurors’ reasoning is not always based on the
law or devoid of personal sympathy – both requirements to ensure fairness in
death sentencing.
One case I recall from Georgia
involving the retrial of a leader of a gang that killed six people, including a
particularly horrible death for the female victim. The killer’s brother already
had been re-sentenced to death (in a separate trial, which I covered). But a
juror in the second defendant’s case successfully held out for life without parole,
explaining later to an angry judge that she felt sorry for the defendant in
part because of his bad teeth. A valid argument on arbitrariness can be made
there, too.
I deeply respect Judge Nail for his
candor in that interview. Toward the end of my time at the paper, I noticed
judges in my jurisdiction becoming increasingly reluctant to override jury
recommendations. Several began referring to a jury verdict for the lesser
sentence as one of the strongest mitigating circumstances favoring live without
parole over death.
Proponents of Alabama’s system argue
that judges are better equipped to make capital sentencing decisions than everyday
people who suddenly find themselves thrust into a situation they never expected
to face: making a life or death decision about a stranger.
Opponents say elected judges face
too much pressure from law-and-order voters on a political hot-button issue. EJI’s
study contended overrides happen most often on election years.
That led Justice Sotomayor to
conclude, and Justice Breyer to agree that “Alabama judges,
who are elected in partisan proceedings, appear to have succumbed to electoral
pressures.” That “casts a cloud of illegitimacy over the criminal justice
system,” Sotomayor wrote.
On the surface, it may seem surprising that at least two more
justices didn’t join Sotomayor’s call to reexamine Alabama’s override system.
After all, it potentially would be a narrow ruling, confined to one state’s
practices.
Perhaps it was Woodward’s victim in this case, an on-duty police
officer, that kept the appeal from getting the four justices’ votes needed for
the court to officially consider the case, and rendered improbable the fifth
vote needed to overturn Alabama’s system.
Appeals are pending on condemned killers
in Alabama who had 10, 11 and even all 12 jurors vote for life without parole.
This fruit is ripe for picking.
