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Decision not affecting any state cases

Friday, June 25, 2004


Associated Press Writer


MONTGOMERY -- The U.S. Supreme Court's death penalty ruling Thursday won't disturb any capital punishment cases in Alabama, state Attorney General Troy King said.

"It's welcome news," King said.


But Bryan Stevenson, a Montgomery attorney who handles death penalty appeals, said some condemned inmates in Alabama still could have their death sentences reversed if the state's law is found to be unconstitutional under a 2002 ruling.


By a 5-4 decision, the Supreme Court refused to apply retroactively a June 2002 decision that said jurors, rather than judges, should determine the fate of inmates facing a possible death sentence.


That decision, which involved an Arizona case, forced changes in death penalty laws in five states. It also raised questions about Alabama and other states that use a combination of juries and judges to impose death sentences. Federal courts have not resolved those questions as yet.

Judge not bound :

 Under Alabama's death penalty law, a jury decides whether Alabama's capital punishment law applies to a defendant and then recommends whether the person should be executed or spend life in prison without parole. Next, a judge decides the final sentence and is not bound by the jury's recommendation.


Stevenson said Thursday's decision removes the possibility of the 2002 decision eventually affecting many older inmates on Alabama's death row.


He said any inmates who had finished their first round of appeals -- commonly called direct appeals" -- when the June 2002 decision was issued can't get their sentences reversed if Alabama's death penalty law should run into constitutional trouble in the future. But inmates whose appeals had not yet been heard for the first time by the Alabama Supreme Court and the federal courts have an opportunity that remains.


Stevenson, director of the Equal Justice Initiative, said it's hard to say how many of Alabama's 196 death row inmates might be affected, but he said inmates who have been on death row more than five to 10 years are not likely to benefit if Alabama's law runs into constitutional problems. King said the Alabama Supreme Court has already ruled that the U.S. Supreme Court's 2002 decision didn't affect Alabama, and he anticipates no future legal problems.


 But Stevenson said he believes Alabama's law will eventually be found unconstitutional by a federal court because it allows judges to impose death even if the jury recommends life. Mobile County Circuit Judge Ferrill McRae, contacted Thursday afternoon, said he had not read the high court's ruling, but believed it to be the proper one. In a long career on the bench, McRae has condemned several people to death who had been convicted of capital murder. In a 2000 case, he sent former Alabama State Trooper George Martin to death row for the 1995 slaying of Martin's wife. She had been burned to death in a car along a rural road in Theodore.


The jury voted 8-4 to spare Martin's life and instead send him to prison without the possibility of parole. But in July 2000, McRae told a crowded courtroom: If burning a human being alive is not an example of what is heinous, atrocious or cruel, then in this court's opinion, these words lack meaning." He then overrode the jury's recommendation and condemned Martin to execution. Thursday, McRae said: (Supreme Court Justice) Thurgood Marshall told me in Montreal a number of years ago he thought it was of paramount importance to leave the final question (of punishment) to the judge, who is experienced in legal matters that the jury is not."

Self-explanatory :

McRae also said that anytime a jury's decision is overridden by a judge in favor of execution that decision will certainly receive great scrutiny by the appellate courts. "To be able to stand that scrutiny," McRae said, the capital crime must be one that is especially heinous, atrocious and cruel. Those terms should be self-explanatory." He said Thursday's decision should put the question to rest" on whether a judge should be able to override a jury's recommendation. University of Chicago law professor Bernard Harcourt agreed, but in the opposite direction.


He noted that the high court also ruled Thursday in a separate case that in sentencing defendants, judges cannot consider evidence that jurors haven't seen. Coupled, the rulings might put the last nail in the coffin" of Alabama's judicial override law, said Harcourt, who helped a convicted killer get off the state's death row earlier this year.


Harcourt represented Phillip Wayne Tomlin, who was tried and found guilty four times of orchestrating a 1977 double murder. At the conclusion of Tomlin's most recent trial in 1999, Mobile County Circuit Judge Herman Thomas sentenced Tomlin to die in spite of the jury's unanimous recommendation of life without parole. Last fall, the state supreme court ruled that Thomas overstepped his bounds. The panel ordered Thomas to resentence Tomlin to the life prison term, and Thomas complied this spring.



25 Year-old Death Sentence

Unanimously Reversed by Alabama Supreme Court


On October 3, 2003, the Alabama Supreme Court unanimously reversed Phillip Tomlin's death sentence and ordered him resentenced to life in prison without parole, marking the Court's first ruling to create a standard of review for judicial override in the state.


Tomlin had been on death row for more than 25 years despite the fact that four juries have recommended that he receive a life sentence for his alleged role in a Mobile, Alabama, revenge killing. In each of those cases, the trial judge overrode the jury to impose a death sentence because Tomlin's co-defendant, John Daniels, was sent to death row.


In its decision, the Court noted, "It would be inconsistent to hold that Daniels's sentence could properly be used to undermine the jury's recommendation of life imprisonment without the possibility of parole." The Court's opinion also noted an earlier Alabama Supreme Court ruling that concluded that even a 10-2 jury recommendation should be given strong consideration by the sentencing judge.


Tomlin was represented by his pro-bono attorney,

University of Chicago law professor Bernard Harcourt.

Mobile Register, October 4, 2003,

and Attorney Press Release, October 7, 2003).