The Unraveling of the Alabama Death Penalty:
Alabama’s Capital Sentencing Statute, Part 2 in a Series

Alabama Death Penalty

“As any student of the death penalty in America knows, the chance that a person charged with a capital crime will live or die depends greatly on race, social class, and—perhaps most important—where the alleged crime was committed.”

Ken Silverstein
The Judge as Lynch Mob  
The American Prospect
December 19, 2001

Courtney Lockhart, a 26-year old African-American from Smiths Station, Alabama, served 16 months with the Army in Ramadi, Iraq, starting in 2004. According to NPR, Ramadi was one of the deadliest places to be at the time and 64 members of his brigade were killed.

On March 4, 2008, Lockhart carjacked Auburn freshman Lauren Burk, robbed her and forced her at gunpoint to strip naked.  Lockhart later said he thought this would prevent her from trying to escape.

It did not.  Burk jumped from the moving car, Lockhart shot her once in the back as she went out the door, and then left her, still alive, by the roadside.

Lauren Burk was found by a passing motorist on Alabama Highway 147 and died hours later at a local hospital.  She was 18 years old.

Lockhart was arrested three days later and confessed to killing Burk.  The Opelika-Auburn News reported that the murder took place in the middle of a series of robberies Lockhart committed, from February 28, 2008 until his arrest on March 7, 2008.

A Lee County jury voted to convict Lockhart of capital murder in 2010 and recommended 12-0 that he be sentenced to life imprisonment without parole, after considering his claim of post-traumatic stress syndrome following his dishonorable discharge from the Army.

Judge Jacob A. Walker III overrode the jury’s recommendation in March of 2011 and sentenced Lockhart to death by lethal injection.

The Alabama Court of Criminal Appeals upheld Judge Walker’s sentence, agreeing with him that the aggravating circumstance of Lockhart’s robberies, not known to the jurors, were enough to warrant the death penalty.

“We determine that Lockhart’s sentence is neither disproportionate nor excessive to the penalty imposed in similar cases.”

Lockhart’s case was appealed to the U.S. Supreme Court (SCOTUS) but was declined a hearing in April of 2015.  Justices Sonya Sotomayor and Stephen Breyer dissented from the majority decision.

According to al.com, the same two justices had dissented two years previously in another Alabama judicial override case.

Justice Sotomayor authored the earlier dissent, acknowledging that in 1995 SCOTUS upheld the Alabama law allowing judicial overrides but she still was concerned with the constitutionality of the practice.

“Eighteen years have passed since we decided [Harris v. Alabama] and in my view, the time has come for us to reconsider that decision,” she stated.

“Since Alabama adopted its current statute, its judges have imposed death sentences on 95 defendants … contrary to a jury’s verdict. Forty-three of these defendants remain on death row today,” she wrote in the 2013 dissent.

SCOTUS has since held in January 2016 that the Sixth Amendment to the Constitution requires that a jury must find each fact necessary to impose a death sentence, not a judge.  Which is exactly the opposite of what was done in the Courtney Lockhart trial, and in 101 other Alabama cases since 1976.

Alabama is now the only state in the country that allows one person – the judge – to overrule a jury’s recommendation and impose the death penalty over life in prison. And those judges are elected by voters who have little to no information about the candidates’ qualifications, but are fed a stream of vitriolic campaign ads.

According to a study released by the Brennan Center for Justice, trial judges in Alabama override jury verdicts sentencing criminal defendants to life and instead impose death sentences more often in election years.  The same study notes that judicial campaign ads most often use a “soft on crime vs. tough on crime” theme, leading incumbent judges to demonstrate to voters their willingness to impose the harshest penalty – death.

An Alabama public defender, Texys Morris, argued in a capital murder case in 2015 that although Florida and Delaware at that time allowed judicial overrides in death penalty cases, it was rarely practiced.  Delaware had no one on death row due to overrides and Florida had not had an override for death since 1999.

“The standard required for judicial override in Florida reflects a far greater respect for the jury’s verdict and the sanctity of life than the system used in Alabama,” Morris wrote.

The U.S. Supreme Court struck down Florida’s use of judicial override in death penalty cases in January.

Although 38 states have some form of judicial elections Alabama is one of only eight states that elect all state judges on a partisan ballot. After voting overwhelmingly Democrat from Reconstruction until the mid-eighties, the state began to turn hard right during the Reagan revolution.  Both parties saw judicial races as a means to get their political views entrenched as law, and between 1986 and 1996, spending for judicial campaigns increased 776%.

The 1996 race for Alabama Supreme Court Justice was noticed nationwide for both cost (reaching the level of a U.S. Senate campaign) and hostility (an infamous TV ad featuring a skunk, with the tag line “… some things you can smell a mile away.”)

Afterwards, a state judicial elections oversight committee was formed to advise those running for judgeships on ethics and honesty in political campaigns. The committee was used sporadically through 2008, but lack of both funding and interest has played a part in its discontinuation.

Former Alabama Supreme Court Justice Sue Bell Cobb resigned her office in 2011 after deciding the cost of election was too high, and not just financially.

“Yes, to run for judge means pitching yourself to the public just as if you were running for dogcatcher.”

Former Justice Cobb went on to say, “In Alabama, would-be judges are allowed to ask for money directly. We can make calls not just to the usual friends and family but to lawyers who have appeared before us, lawyers who are likely to appear before us, officials with companies who may very well have interests before the court. And I did.”

All of this is to circle back to the fact that judges in, arguably, the most conservative state in the country are well aware of what their constituents – and donors – want on the bench.  And the big bucks campaign ads do nothing to discourage this.

“ … candidates were portrayed as judges who, if given the chance, would release child molesters and murderers and order them to move in next door. Nothing could be further from the truth. But dignity and fairness are too often the first casualties in these kinds of endeavors,” continued Cobb.

Former Supreme Court Justice Sandra Day O’Connor has long been an outspoken advocate for appointed judges, forming an organization after her retirement to promote The O’Connor Judicial Selection Plan.

“No other nation in the world [has an elected judiciary],” she said at a conference on judicial independence at Fordham Law School, “because they realize you’re not going to get fair and impartial judges that way.”

The Unraveling  of the Alabama Death Penalty:
First of a 3-Part Series on Alabama’s Capital Sentencing Statute

Alabama’s capital sentencing statute is unique. In Alabama, unlike any other State in the Union, the trial judge has unbridled discretion to sentence the defendant to death – even though a jury has determined that death is an inappropriate penalty, and even though no basis exists for believing that any other reasonable, properly instructed jury would impose a death sentence.Alabama Death Penalty

. . . I would conclude that the complete absence of standards to guide the judge’s consideration of the jury’s verdict renders the statute invalid under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment.

Justice John Paul Stevens
Harris v. Alabama, 1995
Dissenting Opinion

In January, SCOTUS ruled against Florida’s death penalty statute in the case of Hurst v. Florida. The decision was 8-1, with Justice Samuel Alito dissenting.

The majority opinion held that a jury must decide each fact necessary to sentence a defendant to death, not a judge.  If, after hearing all evidence, including aggravating and mitigating factors, the jury determines life in prison without parole to be the appropriate sentence, one person – the judge – cannot overrule the jury’s findings.

To allow such judicial overrides would be a violation of the Sixth Amendment to the Constitution, the court held, which requires defendants be tried and convicted by a jury of their peers.

At the time of the ruling, Florida was one of three states (Alabama and Delaware being the other two) permitting judicial override.

Alabama and Delaware now stand alone in allowing overrides to impose capital punishment.    Delaware has no death row inmates due to judicial override and its judges have overwhelmingly used override in the past to reduce a death sentence to life imprisonment.

Should SCOTUS come to hear arguments on the constitutionality of Alabama’s death penalty statute, in particular the role of judicial override, the state will be treading on precisely the same ground as did Florida in Hurst.

Alabama has long been an outlier in judicial overrides to impose capital punishment:

  •  Since 1976, Alabama judges have overruled life imprisonment sentences    101 times.  By comparison, Florida judges have not overruled life for death since 1999.
  • According to the Equal Justice Initiative (EJI), judicial override accounts for Alabama having the highest per capita death sentence rate and execution rate in the U.S.
  • All Alabama state judges are elected. EJI statistics show that overrides peak in election years (30% in 2008) and go down in non-election years (7% in 1997.)
  • Seventy-five percent of Alabama overrides have occurred when the victims were white.  Less than 35% of all homicide victims in the state are white, demonstrating a remarkable tendency for judges to impose the death penalty more often when the victim is white.

In 1995, SCOTUS ruled in Harris v. Alabama that the state’s judicial override application in death penalty cases was constitutional.

Writing for the majority Justice Sandra Day O’Connor said,  “The Alabama Court of Criminal Appeals affirmed Harris’ conviction and sentence. It noted that Alabama’s death penalty statute is based on Florida’s sentencing scheme, which we have held to be constitutional.”

Indeed, Louise Harris’s appeal was based on the fact that although both states had almost identical statutes, Florida law required the judge to give ‘great weight’ to the jury’s sentence recommendation.   

The defense argued that “ . . . Alabama’s capital sentencing statute is unconstitutional because it does not specify the weight the judge must give to the jury’s recommendation and thus permits arbitrary imposition of the death penalty.”

This lack of specificity violated the Eighth Amendment to the Constitution, the attorneys said, in allowing capital punishment to be “ . . . implemented in a random and capricious fashion.”

SCOTUS rejected the arguments in an 8-1 vote, with Justice Stevens dissenting.

Since 1995, SCOTUS has twice declined to review Alabama’s practice of judicial override, in 2013 and 2015.

This was, however, before the Supreme Court ruled against Florida’s statute in Hurst on January 12.

On March 3, Florida governor Rick Scott signed into law a new death penalty statute, in which the following changes were made in order to accommodate the SCOTUS ruling:

  • The trial judge cannot increase the jury-recommended sentence of life in prison with a death penalty sentence.
  • The trial judge may reduce a jury-recommended sentence from the death penalty to life in prison without parole.
  • The trial judge may not be the finder of facts that the death penalty is warranted in a particular case. It must be evidence presented to and decided upon by the jury.
  • The number of jurors required to impose the death penalty must be no less than 10.

Only Florida and Alabama require less than a unanimous jury for capital punishment (Alabama, too, requires 10 votes.)  A Harvard Law School study found that in the past five years, 26 out of 34 Alabama death sentences were non-unanimous jury decisions.

In March, Jefferson County Circuit Judge Tracie Todd barred the death penalty from consideration in four upcoming capital murder cases.  She based her ruling on the Hurst decision, and declared Alabama’s “capital sentencing scheme” to be unconstitutional.

The prosecution is appealing the ruling through state appellate courts, with Attorney General Luther Strange stating, “The trial court does not have the power to prevent the State of Alabama from seeking the death penalty when and if the defendant is convicted of capital murder.”

It is widely believed in the legal community that this particular case could very well end up in the U.S. Supreme Court.

Next in the series:  The role of judicial elections in sentence overrides.

 

Mandatory Minimum Sentences in Alabama: How Much Is Too Much?

Mandatory Minimum Sentences in Alabama

Jezebel, an American lifestyle magazine, contained an article last month on the case of Lee Brooker from Cottonwood, Alabama.  Brooker, 76, is serving life imprisonment without parole for a drug trafficking conviction due to his prior four felonies and Alabama’s mandatory sentencing guidelines.

Jezebel writer Anna Merlan pointed out that on April 14, 2016, the New York Times published an editorial about the “cruel and unusual punishment” involved in sentencing an elderly man to life for growing marijuana for personal medicinal use.  The editorial was compelling and righteous in its indignation that non-violent crimes could result in harsh and unnecessary mandatory prison sentences, especially in light of the fact that marijuana use is now legal in several states.

“The court has already banned mandatory death sentences and mandatory life-without-parole sentences for juveniles, both on the grounds that the Eighth Amendment must adapt to the ‘evolving standards of decency that mark the progress of a maturing society.’ By that standard, and given rapidly evolving public opinion on marijuana, no one should be sent to prison forever for possessing a small amount of marijuana for medical or personal use.”

At first glance, it appears to be a typical Deep South, small-town, “Night the Lights Went Out in Georgia” scenario:  a citizen who had served his time 20 years ago receives nightmarish sentence for simply trying to obtain relief for his chronic medical condition.

The problem was, according to Banks Smith, the Houston County assistant district attorney who prosecuted the case, Lee Carroll Brooker had sophisticated growing equipment along with 42 marijuana plants in his back yard, with a street value of $92,000.

“Did I want to send an old man with medical problems to prison for life, without a chance to get out?  Not especially, but the way Alabama law is written, that’s what he got,” said Smith, who is now an assistant DA in Bainbridge, Georgia.

The jury was given a lesser charge to consider in addition to trafficking –unlawful possession of marijuana [sic] in the first degree.  Smith said the jury simply did not buy the defense argument that 42 pot plants were strictly for personal use, thus, the trafficking conviction.

Which begs the question:  how much is too much? 

Under Colorado’s 2014 medicinal marijuana use law, patients may possess up to 2 ounces of medical marijuana and may cultivate no more than six marijuana plants (no more than three of these mature flowering plants at a time.)

California’s SB 420 sets a “floor” of 8 ounces and 6 plants, under which you are per se possessing and cultivating medically, but you are allowed greater amounts with doctor’s recommendation.

In Oregon:  Any registry identification card holder or his/her designated caregiver may possess not more than six mature marijuana plants and 24 ounces of usable marijuana.

These three states allow legal use of marijuana with certain boundaries; the 42 plants, 2.8 pounds, grown by Brooker are well beyond what is allowed there for personal medical use.  It would appear that the trafficking conviction, though severe, was not unfounded.

What, then, is the ‘cruel and unusual punishment’ part of Brooker’s story?  Mandatory minimum sentences, which triggered the life-in-prison-without-parole in this case.  Although the felonies were decades old, Brooker had four of them, including one in Florida. Only the three in Alabama were needed to generate the life term.

The trial judge, in handing down the original sentence, said that if he “could sentence you to a term that is less than life without parole, I would.”

Alabama Supreme Court Justice Roy Moore upheld the lower courts on appeal, but called Mr. Brooker’s sentence “excessive and unjustified,” and said it revealed “grave flaws” in the state’s sentencing laws.

According to Bloomberg News, “Advocates for change say mandatory minimums are crude instruments of justice, one-way ratchets that create punishments too harsh for charged offenses. Racial minorities and the poor, they note, are incarcerated disproportionately. Defenders argue that a retreat from clearly defined sentencing will produce an increase in violent crime or a return to sentencing disparities.”

Brooker’s son, Darren, was arrested with his father and also convicted of drug trafficking. He, however, received a reverse split sentence from Circuit Court Judge Michael Conaway, which involved a 10-year sentence with Brooker serving five years probation first. Darren Brooker’s attorney, Derek Yarbrough, said if his client does well on probation the prison sentence will be suspended.

In short, despite national headlines, Lee Brooker is not being incarcerated for “possessing a small amount of marijuana …” His sentence is a product of Alabama’s mandatory minimum laws, and for that he is serving the rest of his life in prison.

 

 

 

 

Southern Cleaning Company Gets Reversal on AppealSouthern Cleaning Services, Inc.

On Friday, the Alabama Supreme Court reversed a summary judgment against Southern Cleaning Services, Inc. (SCSI) and remanded the case back to the lower court for additional consideration on the issue of “apparent authority.”

SCSI had a commercial-liability insurance policy that required the company to notify Essex, the policy issuer, “as soon as practicable” in case of an accident or lawsuit.

Alabama Auto was the agency that obtained the policy for SCSI, and it was to Alabama Auto that SCSI paid insurance premiums.

A woman who slipped on a wet floor and was injured later sued SCSI. SCSI had notified Alabama Auto, but not Essex, about the claim. Because Essex was not notified of the claim until 15 months after the injury, Essex refused to defend the cleaning company, saying they should have contacted them rather than alerting Alabama Auto.

The trial court agreed with Essex and issued a summary judgment in their favor.

SCSI argued on appeal that the liability policy had no contact information for Essex, nor did it give any procedure for filing a claim.  The policy did, however, list Alabama Auto as “agent” along with their contact information.

The court said these facts presented substantial evidence that Essex had “cloaked” Alabama Auto with the apparent authority to act as their agent.  The ruling directed the lower court to consider this evidence while reviewing the case again.

In an associated ruling, the Alabama Supreme Court dismissed an appeal by the insurance company against SCSI for legal costs, saying the case was moot due to the reversal.

Read the opinion from the Supreme Court Of Alabama: Southern Cleaning Services, Inc.

Life insurance beneficiary swap was not illegal, but insurer may have acted negligently in allowing the swap. Ex parte Liberty National Life Insurance Life insuranceCompany.

Like most states, Alabama requires that a beneficiary of life insurance policy have an insurable interest in the life of the insured.  Insurable interest means that the beneficiary has some pecuniary advantage through the continued life of the insured. Requiring an insurable interest prevents life insurance policies from becoming wagers “on the life of another.”

Benjamin Miller, Sr., purchased a life insurance from Liberty Mutual on Benjamin Miller, Jr., and named his mother, Junior’s grandmother, as the beneficiary of the policy.  When Senior died, his wife, Junior’s Step-mom, clandestinely removed Grandma as the beneficiary and named herself as beneficiary.  After Junior’s unfortunate demise, Step-mom collected on the policy and Grandma sued Step-mom and Liberty National. Grandma argued that Alabama’s law requiring Alabama’s law requiring a beneficiary to have an insurable interest in the beneficiary was violated because Step-mom did not have an insurable interest in Junior.  According the Supreme Court of Alabama, resolution turned on whether there was an insurable interest at the time the policy was made. Alabama Statute § 27-14-3(f), stating  that “[a]n insurable interest shall exist at the time the contract of personal insurance becomes effective, but this requirement does not exist at the time the loss occurs,” required that the insurable interest must only exists when the policy becomes effective, which was satisfied in this case. All was not lost for Grandma, however, because the court allowed her negligence claim to proceed—at least for the time being.

Alabama Supreme Court Is Overturned … Take Three

 The U.S. Supreme Court reversed 9-0 on Monday, March 7, an Alabama decision that denied the parental rights of the adoptive mother in a same-sex partnership.  The reversal was issued without briefs or oral arguments.Same-Sex Adoption Alabama Supreme Court

Two women, identified as V.L. and E.L. in legal documents, had a 16-year relationship before separating.  From 2002-2004, E.L. gave birth via sperm donor to three children, including twins, who were subsequently adopted in 2007 by V.L. during the couple’s temporary Georgia residency.

The move to the Atlanta area was prompted by the belief of the women that same-sex adoption would be easier in a major metropolitan area than in Alabama.  The Georgia courts granted full parental rights to the partner of the birth mother.

After moving back to Alabama, the couple split up and V.L. went to court asking for enforcement of visitation rights to the children.  The Alabama Supreme Court ruled that Georgia had ‘mistakenly granted’ the adoption in the first place and therefore V.L. had no parental rights under the law.

SCOTUS rejected that reasoning by citing the “Full Faith and Credit” clause in the Constitution, which requires states to recognize legal decisions reached in other states.

In a rebuff to Chief Justice Roy Moore and the Alabama Supreme Court, SCOTUS said the state’s decision “comports neither with Georgia law nor with common sense.”

The National Center for Lesbian Rights [NCLR] backed V.L.’s appeal to the Supreme Court.

“The Supreme Court’s reversal of Alabama’s unprecedented decision to void an adoption from another state is a victory not only for [V.L.] but for thousands of adopted families,” said Cathy Sakimura, family law director for the NCLR.

Added V.L., “When the Alabama court said my adoption was invalid and I wasn’t their mother, I didn’t think I could go on.  The Supreme Court has done what’s right for my family.”

Child Support Payments End at 19th Birthday: Alabama Supreme Court Curtails Post Minority Education Support

The Alabama Supreme Court’s decision of 2013 in Christopher v. Christopher could have significant financial impact on future college students and their families.

The Facts

Carolyn and Charles Christopher were officially divorced in 2010. In 2011 and four days before their son turned 19 (the age of majority in Alabama), Charles filed a petition to force his ex-wife to pay part of their son’s college expenses.Money for College

Relying on a 1989 Supreme Court of Alabama case, the trial court ordered Carolyn to pay 25% of her son’s college expenses. Carolyn appealed the trial court’s decision to the Alabama Court of Civil Appeals which affirmed the trial court’s order. Undaunted, Carolyn appealed to the Supreme Court of Alabama.

The Outcome

The Supreme Court of Alabama overturned the decision by the Civil Court of Appeals because the clear reading of the current child support statute does not authorize a court to require a noncustodial parent to pay educational support for their children over the age of 19. This decision overturned the previous Alabama Supreme Court decision (Bayliss) that had expressly allowed a trial court to order post-minority support. The Bayliss Court had relied upon the public policy behind the legislation regarding child support to reach its conclusion that a trial court had the discretion to award post-minority support. In reversing the Bayliss decision, the Supreme Court of Alabama reasoned that the Bayliss Court had improperly expanded the scope of the generally accepted definition of “child” to include offspring over the age of 19.

The Significance

Absent legislative action, trial courts will no longer be able to force a party to pay post-minority support. This does not prevent the parties from voluntarily agreeing to post-minority support and having this provision incorporated into a binding settlement agreement. Of course, trial courts may find other ways to “skin the cat” by awarding more alimony or awarding more property to a parent who is likely to take the responsibility for paying for the child’s education.

This decision shows that the current Supreme Court of Alabama is more than willing to overturn long-standing precedent.

 

 

Map of Gulf Oil Spill Loop

Map of Gulf Oil Spill Loop

On Friday, January 10, 2013, the United States Court of Appeals for the Fifth Circuit upheld District Court Judge Barbier’s decision approving the class action DeepWater Horizon Settlement Agreement.  The Fifth Circuit panel dismissed BP’s arguments that claimants in the settlement program must show injury in-fact on an individual basis.  Instead, claimants must meet the causation formulas as described in Exhibits 4B and 4C of the settlement agreement.  The panel also observed that BP originally agreed to and supported the class action settlement agreement and only later filed motions to overturn the settlement agreement.

The ruling states, “No case cited by BP or the Objectors suggests that a district court must also safeguard the interests of the defendant, which in most settlements can protect its own interests at the negotiating table.”  The Fifth Circuit’s statement recognizes that BP had an army of lawyers and accountants representing its interest in the settlement negotiations and that BP cannot now claim that the settlement, which BP voluntarily agreed to, is unfair.

The Court also noted, “As is abundantly clear from the current controversy surrounding the proper interpretation of Exhibits 4B and 4C, and as the district court expressly found, the Settlement Agreement was concluded in an arms-length negotiation that was free of collusion.”

The ruling is an enormous victory for individuals and businesses affected by the worst environmental disaster in the history of the United States.

Read the Fifth Circuit Opinion.

On October 4, 2013, the Alabama Supreme Court announced its decision to deny a petition for a writ of mandamus filed by Safeway Insurance Company of Alabama, Inc. (“Safeway”). Safeway petitioned the Court to direct the trial court to grant Safeway’s Rule 12 (b) (1) motion to dismiss a bad-faith claim against it for lack of subject-matter jurisdiction.

Richard Kimbrough (“Kimbrough”) was injured in an automobile accident with a “phantom vehicle” resulting in medical expenses in excess of $96,000. Safeway, Kimbrough’s insurance provider, denied Kimbrough’s claim for uninsured-motorist coverage. Kimbrough sued Safeway, asserting bad-faith, among other claims, and alleged that Safeway, without lawful justification, had intentionally refused to pay the claim. Safeway moved to dismiss the claim for lack of subject-matter jurisdiction. The trial court denied Safeway’s motion to dismiss, and its subsequent motion to reconsider. Safeway then filed the subject petition for writ of mandamus.

Safeway argued that the trial court should have dismissed the case as unripe because Kimbrough had not proven liability of damages, arguing that to be legally entitled to recover damages and insured party must establish that the uninsured was at fault, and must prove the extent damages. The Court disagreed and ruled that the trial court did have constitutional and statutory authority to hear the case and may dismiss it on the merits, and that the outcome of the case should depend on a Rule 12 (b) (6) motion to dismiss rather than a Rule 12 (b) (1) motion to dismiss, and that proving fault and damages should be an evidentiary or elemental prerequisite rather than a jurisdictional prerequisite. Accordingly, the Court concluded that Safeway did not have a clear legal right to mandamus relief because Safeway did not clearly demonstrate that the case was not ripe or that the trial court lacked subject-matter jurisdiction.

Full Article (PDF): 1050viewdoc.cfm